The court found insufficient evidence to support convictions for rape and theft, while upholding lesser charges of assault and indecent assault based on the victim's testimony.

JUDGMENT :

(Pradeep Kumar Srivastava, J.)

1. Heard Mrs. Nitu Singh, learned Amicus Curiae on behalf of the appellants as well as Mr. Rajneesh Vardhan, learned A.P.P. appearing for the State.

2. The instant criminal appeal is directed against the judgment of conviction dated 07.01.2003 and order of sentence dated 08.01.2003 passed by learned Additional Sessions Judge, Fast Track Court No. 4, Hazaribagh in Sessions Trial No. 434 of 1989, whereby and whereunder, the appellants have been held guilty for the offence under Sections 323, 354, 379 and 376 of the I.P.C. and sentenced to undergo R.I. for ten years each along with fine of Rs. 2,000/-for the offence under Section 376 of the I.P.C., R.I. for 03 months each for the offence under Section 323 of the I.P.C. and one year each for the offence under Section 379 of the I.P.C. All the sentences were directed to run concurrently. However, no separate punishment has been awarded for the offence under Section 354 of the I.P.C.

FACTUAL MATRIX

3. The factual matrix giving rise to this appeal is that on 04.06.1988 at about 3:00 PM, the wife of younger brother of the informant namely, Kewali Devi (P.W.-2) had gone to her field for plucking tomato. It is alleged that the present appellants approached to Kewali Devi and asked water from her. She suggested them to take the container and water, but the accused persons told her that the container (dabba) as well as water was dirty. Kewali Devi told them to leave the container and go away. Upon this, both of the appellants have assaulted her and snatched her ornaments and attacked upon her with a view to commit rape with her. Meanwhile, she raised alarm and the villagers attempted to catch hold of the accused persons, but they managed to flee away.

4. On the basis of the above information given by elder brother-in-law of the victim lady namely, Nunu Mahto, FIR was registered as Barhi P.S. Case No. 73 of 1988 dated 05.06.1988 under Sections 354 and 379 of the I.P.C.

5. After completion of investigation, charge sheet was submitted against the accused persons for the aforesaid offences. The case was committed to the court of Sessions, where S.T. Case No. 434 of 1989 was registered and charges were framed under Sections 323, 379 and 376 of the I.P.C. The appellants denied the charges leveled against them and claimed to be tried.

6. In course of trial, altogether five witnesses have been examined by the prosecution. Thereafter, statements of each accused under Section 313 of the Cr.P.C. have been recorded, who have denied the allegations leveled against them and claimed to be innocent. However, no oral or documentary evidence has been adduced by the appellants in their defence.

7. The learned trial court, after considering the evidence available on record, has held the appellants guilty for the offences under Sections as aforesaid and sentenced as stated above.

8. Learned Amicus Curiae appearing for the appellants, while assailing the impugned judgment and order, has submitted that even if the entire prosecution evidence is taken on its face value, no offence under Sections 376 and 379 of the I.P.C. is made out in this case. Admittedly, the victim has alleged that she was chased by the accused persons with intention to make illicit relation with her, but could not succeed, rather she raised alarm and escaped herself.

Similarly, the allegation of snatching ornaments is also concocted story, which has not been proved by the prosecution because as to what type of ornaments were taken by which of the accused has not been brought on the record and there was no recovery of any ornaments from the possession of the appellants.

9. It is further submitted that out of 09 charge-sheeted witnesses, only 05 witnesses were examined to substantiate the charges leveled against the appellants.

P.W.-1 : Nunu Mahto is the informant and bhaisur of the victim and admittedly he is a hearsay witness of the occurrence, who was not present at the spot.

10. The most important