TAPAN MALAKAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal arises out of the judgment of conviction dated 05th January, 2000 and order of sentence dated 06th January, 2000 passed in Sessions Trial No. 07 of 1998 by the 2 nd Additional Sessions Judge, Katihar whereby the Trial Court has found the appellant Tapan Malakar guilty for the offences punishable under Sections 366A and 376 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for five years under Section 366A of the Indian Penal Code and seven years under Section 376 of the Indian Penal Code. Both the sentences are to run concurrently. The Trial Court also found the appellants Nakki @ Lakhi Malakar and Basu Malakar guilty for the offences punishable under Sections 376 and 366A of the Indian Penal Code and sentenced them to undergo R.I. for 7 years and 5 years respectively vide judgment of conviction dated 15.03.2000 and order of sentence dated 06.03.2000 passed in Sessions Trial No. 84 of 1999 by the 2nd Additional Sessions Judge, Katihar.

(2.) The case, according to the victim girl, namely, Eti Goswami, is that on 05.07.1996 at about 7 PM, she was abducted by Tapan Malakar, Baso Malakar along with two other persons. They took her to Malda district and thereafter the other named accused persons returned to village Ganja. On the next day, she was forced to put her thumb impression on blank paper in the Chanchal Registry Office. After that, she was taken to Makhdumpur Police Station, Chanchal in the district of Malda (West Bengal) and it is alleged that Nakki and Tapan raped her. Tapan also took her to the temple and put 'sindoor' in the temple. Thereafter, they brought her back to her village. After she was brought to the village, a panchayati was held and there was a talk of compromise between the parties, however, it did not work out and as such, the First Information Report was instituted, which has been marked as Exhibit-1.

(3.) The matter came up for trial and altogether nine witnesses were examined. PW 1 is the doctor who has declared the victim girl to be aged about 16-17 years and has also stated in his report that she was used to sexual intercourse, although there was no sign of recent intercourse during the examination. PWs 2, 3, 4 and 5 have been declared as hostile, although they have stated that they had heard that such an occurrence has taken place, but had no knowledge about the occurrence. Similarly, PW 5 has stated that he had no knowledge about the occurrence and that his statement was not recorded by the Police and, therefore, these witnesses are of no help to the prosecution.