HARI MIAN @ HARO MIAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal arises out of the judgment dated 24th of December 2001, passed by the 2nd Additional Sessional Judge, Banka in Sessions Trial No. 29 of 1984 whereby the appellant has been convicted under Sections 376 and 458 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years under each count. However, the sentences were directed to run concurrently.

(2.) The victim informant Bibi Jaitun came to the Officer-in-Charge of Banka Police Station on 30.1.1978 along with her uncle and gave a written report i.e.fardbeyan alleging that in the preceding night at about 10 O'clock while she along with her dewar Adbul @ Mahboob aged ten years was sleeping in her house after completing her meal, her villager Hari Mian (Appellant) and Jattu Mian accused (absconding) came and they pushed the door from the outside due to which the door opened. Jattu Mian caught hold of her dewar and Hari Mian (appellant) came to her and started lifting her sari. She tried to raised hulla but Hari Mian gagged her mouth with cloth and he (Hari Mian), carrying a chhura threatened to kill her if she raised hulla. The informant further alleged that Hari Mian penetrated his penis into her vagina and ejaculated sperm inside her private part and thereafter Jattu Mian also came and committed rape on her making ejaculation inside. Then the two accused went away threatening to kill her if the occurrence was disclosed to anybody. After the departure of the accused the informant and her dewar raised hulla and the witnesses as named in the written report came there and they saw the accused fleeing away. The informant further alleged that her husband was working at Asansol, therefore, weeping she went to her mothers house and from there she came to the police station with her uncle and gave the written fardbeyan and put her LTI on the same.

(3.) As many as nine witnesses have been examined by the prosecution. PW 1 Abdul Mian said to be the dewar of the victim informant has turned hostile and he deposed that he knows nothing about the occurrence and that he does not know if any occurrence had ever taken place with respect to Bibi Jaitun.