The conviction for rape can be upheld based on the victim's credible testimony, even in the absence of corroborative physical evidence, emphasizing the importance of direct ocular evidence.

JUDGMENT :

(Sanjay Prasad, J.)

This Criminal Appeal has been filed on behalf of the appellant challenging the judgment of conviction dated 02.12.2008 and sentence dated 05.12.2008 passed by Sri M. C. Verma, learned Additional Sessions Judge, Fast Track Court No. 1, Bermo at Tenughat in connection with S. T. No. 116 of 2007 arising out of Bermo P. S. Case No. 10 of 2007 corresponding to G. R. No. 51 of 2007 by which the appellant-Manoj Mahto has been convicted for the offences under Sections 376 and 452 of the Indian Penal Code and has been sentenced to undergo R. I. for a period of seven (7) years and to pay fine of Rs. 1,000/- for the offence under Section 376 of the Indian Penal Code and has also been sentenced to undergo R. I. for a period of three (3) years and to pay fine of Rs. 500/- for the offence under Section 452 of the Indian Penal Code. However, both the sentences have been directed to run concurrently.

2. The prosecution case, in brief, is that on 17-01-07 S.I Fransis Indiwar (PW-8), with armed force was on patrolling duty and he, when reached near railway gate Phusro, found the people gathered over there and learnt that in the previous night, wife of one Suresh Rai was raped.

Thereafter, the victim girl got recorded her fardbeyan on 17.01.2007 at 10.30 AM near her house before the Officer In-charge Bermo Police Station stating therein that yesterday i.e. 16.01.2007 at around 8.00 to 9.00 PM, while she was sleeping alongwith her younger daughter aged around two years with one Doli Kumari (daughter of Bhaisur) aged around 10-11 years in her private house then at around 01.30 AM in the night one person entered into her house after scaling the wall and there is aluminium door, which was opened and that person entered from there and arrived at the place where she was sleeping and started searching there and when he had touched her body, then she raised alarm, but that person threatened her of dire consequences on the point of knife and threatened to kill her. Thereafter the said person caught her both the hands in sleeping condition and covered her mouth by shawl and pressed by hand due to which, she could not raised alarm. Thereafter, the said person removed her sari and forcibly committed rape upon her. In the meantime, he also threatened her not to raise any alarm and fled away. She further alleged that she had identified those person from his face and voice as being he is local and that person is Manoj Mahto (i.e. the appellant), who is living at his house situated at some distance from her house and the accused is aged around 35-40 years. She asserted that the accused Manoj Mahto deliberately entered into her house at around 1.30 am for committing rape upon her and forcibly committed rape upon her. At that time her husband was not in the house as he had gone to his house at Kosogondo, Digi, Giridih for some urgent work for around 7-8 days ago.

3. Heard learned counsel for the appellant and leaned counsel for the State.

4. Learned counsel for the appellant has submitted that the judgment of conviction and sentence passed by the learned Court below is illegal, arbitrary and not sustainable in the eye of law. It is submitted that the alleged occurrence took place in the night of 16/01/2007 whereas the F.I.R. was registered on 17/01/2007 which is a belated F.I.R. and it smacks foul over the prosecution version. It is submitted that the learned court below further erred in not appreciating that in a room when the informant was sleeping with two girls and the appellant alleged to have committed rape but she could not raise alarm due to fear. It is quite unbelievable that a person could misbehave forcibly and two girls sleeping with the informant did not raise alarm. It is submitted that there is nothing on record that even those two girls were threatened by the informant. It is submitted that the police failed to collect or seized any incriminating article much less the so-called knife on the basis whereof the appellant