GENDO PANDIT Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE appellants have been convicted u/s. 376 I.P.C. and sentenced to R.I. for ten years by a judgment dated 7.9.1994 passed by the Additional Sessions Judge I, Gaya in Sessions Trial No.40 of 1990/ 74 of 1992. According to the Complainant (P.W.4), when she was returning after easing herself, the two appellants and one unknown person committed rape upon her. During trial seven witnesses were examined on behalf of the prosecution. Out of whom, P.W.1, P.W.2 and P.W.3 were declared hostile, whereas the P.W.4 is the prosecutrix herself and P.W.5 is her husband and P.W.6 is formal, who has proved the complaint petition and P.W.7 is also formal, who has proved the typing of the complaint petition.

(2.) IN effect therefore the case is based on the sole evidence of P.W.4. To examine her evidence it appears that in her Solemn Affirmation she has stated that all the three accused had committed rape upon her, but during trial she alleged such a fact only about the present two appellants also in her Solemn Affirmation, she stated that rape had been committed when she was returning after easing herself but during trial she stated that rape had been committed when she was going to ease. Since it was a case based on a complaint, there is no objective evidence to support the factum of rape.