JUDGMENT :

DEEPAK ROSHAN, J.

1. Heard learned counsel for the parties.

2. This appeal is directed against the judgment of conviction and order of sentence dated 14.11.2003/17.11.2003, respectively passed by the learned Additional Sessions Judge, Fast Track Court No. 1, Dhanbad, in Sessions Trial No. 158 of 2000, whereby the appellant was convicted for the offences punishable under sections 376/511 IPC and Sections 448 IPC and sentenced to undergo R.I. for 7 years under section 376/511 IPC and a fine of Rs. 2,000/- and to undergo R.I. for 6 months under section 448 IPC, both the sentences shall run concurrently.

3. The prosecution case in brief is that on the night of 20.06.1999, informant was sleeping in her room with her children. At about 1 A.M. the accused-appellant came and called her father-in-law and took his ‘Kudali’ and returned. At night the appellant again came and entered into her room and sat on the bed and put his hand on her chest and tried to remove the sari for committing rape upon her. She woke up and with the help of torch light she identified the appellant and also caught hold of his ‘Lungi’ but the appellant removed his ‘Lungi’ and fled away. Thereafter, she raised hulla and on which all family members assembled in the room.

4. Mr. A.K. Sahani, learned counsel for appellant essentially assail the impugned order on three grounds:

(i) There is huge delay in lodging the F.I.R. and the same has not been substantiated by either of the prosecution witnesses. Different reason has been assigned by different witnesses with regard to holding of panchayati but neither any panchayati report has been produced nor exhibited.

(ii) The learned trial court has failed to appreciate the fact that when the informant never met the appellant then under what circumstances and how she has identified the appellant, inasmuch as, she herself in Para-6 has categorically stated that she never went to the ration shop which was run by the appellant. This version, that she never went to ration shop and never met the appellant, has been corroborated by PW-7 who is the husband of the victim and PW-2 who is father of the victim. Thus, when the identification itself becomes doubtful, it is very difficult to come to conclusion that it was only the appellant who went in the dark night.

(iii) Investigating Officer has not been examined in this case in order to substantiate the case of the prosecution. It is true that the examination of I.O. is not fatal for prosecution in every case but in the fact of this case when the F.I.R. has been lodged after delay of around 2 weeks and different version has been given with regard to identification of the appellant by the victim, the investigation of I.O. becomes very important.

Relying upon the aforesaid submission learned counsel submits that the appellant requires acquittal.

5. Learned APP opposed the prayer for acquittal and submits that the learned trial court has not committed any error in convicting the appellant.

6. Having heard learned counsel for the parties, it appears that altogether 12 witnesses have examined in this case and taking the version in the F.I.R. it appears that several relatives (Gotani, Husband and father-in-law) were sleeping beside the victim because it was a summer night. It further transpires that from the alleged time of occurrence two hours before it has been alleged that the appellant came and took spade from her father-in-law and thereafter, it has been alleged that he again came at 3 O’clock and tried to outrage the modesty of the victim.

The first and the foremost point which comes to doubt is that as to how the victim came to know that the said person was the appellant himself, inasmuch as, she has categorically stated in her deposition that she never went to the shop of the appellant who used to run a Ration Shop. This statement of the victim has been supported by her husband and her father-in-law, inasmuch as, both the prosecution witnesses have categorically deposed that she do