JUDGMENT :

Heard learned counsel for the parties.

2. This appeal is directed against the judgment of conviction and order of sentence dated 05.07.2004 passed by the Additional Sessions Judge-IIIrd, Rajmahal, in Sessions Case No. 251 of 1993 and Sessions Trial No. 236 of 2002; whereby the appellant was convicted under section 376 IPC and sentenced to undergo R.I. for 7 years and further imposed fine of Rs.1000/- and in default, further sentenced to undergo S.I. for 6 months.

3. The prosecution case in short is that on 28.7.1992, informant had come out for discharging soil then all of a sudden accused along with one another person caught her and wrapped her mouth with gamcha and tried to bring her towards forest but upon raising alarm, her husband and mother-in-law reached there on which accused fled away from the place of occurrence taking advantage of darkness. After 4 days of occurrence, she informed to police that accused had committed rape on her which she did not disclosed on the first occasion, when she informed police on the very next date of occurrence.

4. Mr. Jai Prakash Jha, learned senior counsel for the appellant made following submissions;

(i) The first information about the incident is given by the victim on next day of incident i.e., on 29.7.1992 wherein victim has made allegation that the accused has attempted to commit rape on her however fortunately he did not succeed in committing rape.

(ii) The version of the prosecutrix that in the first information to police, she could not disclose about commission of rape to save her prestige in the eye of Society and further apprehended that if she disclose the truth, her husband would desert her and would drive her out from the house appears to be concocted; as the husband of the victim in his deposition had stated that on raising alarm, he and his mother, went towards place of occurrence wherein they saw accused was fleeing away and the sari of the victim was open and there was semen stained on the petticoat of victim. From this it can be inferred that the husband and his mother was very much aware of the fact of rape because they had seen themselves. After seeing the incident, the family of victim after discussion must have given the information to the police about the true fact of incident and in the second information, she has said that due to fear of being driven out by the husband she had not informed the police about Rape.

(iii) From the deposition of PW4-father-in-law, it clearly transpires that victim has informed the attempt of rape on the night of incident itself. From this it can be inferred that second information is further development and was an afterthought.

(iv) Even from the deposition of Doctor-PW-5, it appears that there was no mark of violence found on body and there was no sign of rape.

(iv) Further PW-9 Deputy Director Forensic science has stated that sample of seized petticoat was sent to the laboratory for chemical examination of the semen which was found on it; however, in his cross examination he admitted that semen stained on saya was not compared with the semen of accused.

Relying upon the aforesaid submissions, he prays for acquittal of the appellant.

5. Mr. Pankaj Kumar, learned P.P. opposed the prayer for acquittal and submits that the learned trial court has not committed any error in convicting the appellant. Further. The prosecution has considerably proved the charge of Rape; as such no lenience is required.

6. Having heard learned counsel for the parties and after going through documents available on L.C.R, it appears that the first information about the incident was given by the victim on the next day of incident i.e., on 29.7.1992, wherein victim has made allegation that the accused has attempted to commit rape on her; however, fortunately he did not succeed in committing rape. Interestingly, after about 4 days of incident she has made another written information to the police on 02.08.1992 that in the FIR, she has not stated true fact because