MOHAMMAD ARIF Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE appellant suffered conviction under Section 376 of the Indian Penal Code for which he was sentenced to suffer rigorous imprisonment for a period of ten years and was also sentenced to pay fine of Rs. 2000/ - on accusation that in the dead of night at 11.00 P.M. on 6th November, 1993 the appellant having gained his access in the inner appartment of house of Sanjeeda Khatoon (P. W. 3) having gagged committed sexual assault on her. The fardbeyan of the prosecutrix was recorded at 5.00 P.M. on 7th November, 1993, pursuant to which first information report was drawn up and investigation followed. As usual, in course of investigation, the Police Officer visited place of occurrence, recorded statement of witnesses, got the prosecutrix examined by the doctor and on conclusion of investigation laid chargesheet before the court.

(2.) IN eventual trial that followed, the State examined altogether 8 witnesses and those examined by the State include one formal witness who brought on the record, first information report, the doctor, the prosecutrix, her family members and host of other witnesses.

(3.) THE finding recorded by the court below is sought to be assailed by the learned counsel for the appellant on premises that though prosecutrix was also clinically examined by the doctor, there has been no finding about commission of sexual assault on her. Contentions are raised that though host of witnesses were examined at trial, majority of them had turned volte face to the State and as such had betrayed the prosecution. Yet it would appear from Annexure -3 which is statement of prosecutrix recorded under Section 164 Cr. P.C. before Magistrate that during her examination before the Magistrate she had disowned all allegations attributed to the appellant about commission of sexual assault on her and as such had retracted from her statement which she rendered earlier before police about commission of sexual assault by the appellant. Submission made at bar was that though the prosecution has a case that after appellant grappled with the husband of the prosecutrix, his shawl came in custody of her husband but neither there has been seizure of the said wearing apparel of the appellant nor there has been evidence of Investigating Officer to suggest seizure of said incriminating object during investigation. In this connection, statement of witnesses was also highlighted at bar to impeach their credibility.