(1.) THIS appeal at the behest of the appellants (Ayub Ansari. Ahsan Ansari and Ansarul Ansari) is directed against the judgment and orders of conviction and sentence dt. 13th August, 1993, in ST No. 596 of 1992, passed by Sri G. W. Baa, the then Assistant Sessions Judge -Ill, Ranchi, whereby the appellants have been convicted under section 376(2)(g)/34 of the Indian Penal Code on the charge of committing gang rape on Gangi Toppo (the prosecutrix) and each has been sentenced to undergo rigorous imprisonment for ten years thereunder.
(2.) BRIEFLY stated, the prosecution case, as made out in the fard -beyan of Gangi Toppo (P.W.3) recorded by B. K. Singh (P. W. 7), officer -in -charge Gonda Sub -police station, on 16.4.1992 at 10 A.M. at Bhitta More is as under : On 14.4.1992 at about 10 A.M. Kumari Gangi Toppo (the prosecutrix) had gone to Gandhi Nagar Plant for engagement as daily labour. On that date, she did not get any engagement as the work was not in progress and she was returning home. When she reached Gandhi Nagar Plant, on the return journey, Bablu Ansari, the co -accused, resident of village Bhitta came stealthily hiding by the side of the boundary wall and on pistol point with threat to kill her, he dragged her to nearby river. He threatened her with dire consequences if she ventured to raise alarm and when she made a bid to escape, accused/appellants Ahsan Ansari and Ayub Ansari, both residents of village Bhitta and accused/appellant Ansarul Ansari, a resident of village Chandwa came running and all the accused overpowered, threw her on the ground, undressed her and committed rape on her one by one. She was in great pain and became unconscious. When she regained consciousness, she saw Sita Orain (P.W.2), her co -villager, standing there. She narrated the incident to her and returned home in her company and narrated the incident to her mother P.W. 4 (Birsi Toppo). The father of the prosecutrix was not available at village home, as he had gone to the place of his relative and when in the evening on 15.4.1992, he returned, she narrated the incident to him and she was going along with her father (P.W.1), Abhay Toppo to the police station to report the incident, she happened to meet the police officer P.W.7 at Bhitta More, who recorded her fard -beyan (exhibit 4). On the basis of the fard -beyan, the present case came to be instituted. The police officer/ (P.W.7) assumed and commenced investigation, visited and inspected the place of occurrence, effected seizure of a pink Salwar, light green panty from the person of the prosecutrix in presence of Prabhu Munda (P.W.5), which were sent to the Forensic Science Laboratory, Patna, under exhibit
(3.) AT the trial, the prosecution examined seven witnesses in support of its case. They are: P.W.1 Abhay Toppo, a hear -say witness and father of the prosecutrix, P.W.2 (Sita Urain), P.W. 3 (Gangi Toppo), the prosecutrix, P.W.4 (Birsi Toppo), mother of the prosecutrix, P.W.5 (Prabhu Munda), a seizure list, witness, P.W.6 (Dr. Nirmala Kumari), the doctor who had examined the prosecutrix, and P. W. 7 (Vijoy Kant), the Investigating Officer. The defence, on the other hand, examined one witness, namely, D.W. 1 (Balak Hussain), a truck driver, father of accused/appellant (Ayub Ansari), who has stated that the accused/appellant Ayub Ansari was the Khalasi of the truck and between 13.4.1992 to 16.4.1992, the accused/appellant Ayub Ansari was with him at Jhargram in transportation of the goods, carried by the truck, driven by him. Thus the plea of alibi has been taken on behalf of the Ayub Ansari, which was never suggested to the prosecutrix or any other witness at the time of recording of their evidence. The plea of alibi was taken on behalf of the accused/appellant Ayub Ansari at a belated stage and the prosecution was taken by surprise.