The weight of victims' evidence in cases of sexual assault and the minor lapses in investigation such as delay in filing the FIR and lack of independent witnesses.

JUDGMENT :

Ratnaker Bhengra, J.

Heard Mr. Bhola Nath Rajak, the learned amicus curiae, who appeared on behalf of the appellant in Cr. Appeal (S.J.) No. 348 of 2010, Mr. Bhaiya Vishwajeet Kumar, the learned counsel, who appeared for the appellant in Cr. Appeal (S.J.) No. 1360 of 2008 and Mrs. Nehala Sharmin, the learned APP, who appeared for the State in both the cases.

2. Both these criminal appeals are preferred against the judgment of conviction dated 27.08.2008 and the order of sentence dated 01.09.2008 passed by the learned 2nd Additional Sessions Judge, Hazaribag in Sessions Trial No. 460 of 2006, whereby and whereunder, the appellants were convicted under sections 363, 366A and 376(2)(g) of the Indian Penal Code and sentenced to undergo RI for three years each under section 363 IPC, RI for seven years each under section 366A IPC and appellants were further sentenced to undergo RI for seven years under section 376 (2) (g) IPC. All the sentences were ordered to run concurrently and period already undergone during investigation and trial were ordered to be set-off.

3. The case of prosecution, in brief, as per the fardbayan dated 17.04.2006 of the informant PW-6 Baharuddin Ansari, resident of village-Huag (Tola Dariya mohalla) P.S.-Mandu, District-Hazaribag is that on 03.04.2006 at 14:00 hours his daughter PW-5 or victim (name concealed) aged about 14 years and his niece PW-1 (name concealed) aged about 12 years had proceeded to Barkagaon to the house of their fufi (aunt). They reached Mandu and boarded on a commandor jeep for going to Hazaribag. When the jeep reached at Charhi, the driver of the jeep Rajesh Kumar Kushwaha alighted all the other passengers of the jeep at Charhi Bazar Tand and said to these two girls that they will be left to their destination at Barkagaon but the jeep crossed Charhi ghati and started going towards the forest. The two girls protested, but they were threatened by the driver with dire consequences and hence both the girls remained silent out of fear. Thereafter, driver took the jeep towards non-metal road inside the forest and then the driver Rajesh Kumar Kuswaha and khalasi Suresh Kumar Mahto one by one committed rape upon the informant’s daughter. Thereafter, both the girls were taken to the village-Jharpo, Tola-Barmakka, P.S.-Ichak, District-Hazaribag to the house of the driver and both the girls were locked in a room for 10-12 days and during this period informant’s daughter was raped several times by the driver and cleaner. His niece PW-1 started crying and she left taking food, then, on 15.04.2006 accused persons got her seated in a bus going to Hazaribag-Mandu, but, his daughter was kept in possession by the accused persons. Informant further stated that his niece PW-1 anyhow returned to the house on 15.04.2006 in the night and narrated the entire story to the informant and family members of the house and thereafter, the informant came to know about the kidnapping of his daughter and rape committed on her. On the next day i.e. on 16.04.2006, the informant and other persons along with his niece went to Charhi and Hazaribag taxi stand in search of the aforesaid commandor jeep. In the meantime, at about 6:30 pm in the evening, they found the commandor Jeep bearing registration No. JH-02-2225 and his niece PW-1 identified the said jeep, driver and cleaner. Thereafter, the driver and cleaner were apprehended by the informant with the help of other persons and on query, the driver of the jeep accepted that informant’s daughter was kept in his house. Then, the informant along with the driver and cleaner went to the driver’s village and with the help of local people informant’s daughter was recovered from a room. The informant stated that driver Rajesh Kumar Kuswaha and cleaner Suresh Kumar Mahto had put his daughter in fear of death and committed rape upon his daughter. The accused persons were handed over to Mandu police on 17.04.2006.

4. On the basis of the fardbeyan of the informant Mandu P.S. Ca