BALESHWAR PRASAD @ BALESHWAR MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal is against the judgment dated 4.4.2003 of the 7th Additional Sessions Judge, Gaya passed in Sessions Trial No. 481/99/438/ 99 whereby the appellant has been convicted under Section 376 of the Indian Penal Code and sentenced to R.I. for 7 years.

(2.) It has to be mentioned here that during pendency of the appeal while hearing bail matter vide this Court's order dated 27.7.2004 as passed by Hon ble Mr. Justice S.K. Katriyar, the appellant was also noticed under Section 386(3) of the Code of Criminal Procedure, 1973 to show cause as to why imprisonment of 7 years imposed on the appellant be not enhanced. The appellant submitted his show cause reply under supplementary affidavit dated 10.8.2007. This matter was also heard along with hearing of the appeal.

(3.) The prosecution case as unfolded in the fardbeyan of the victim-informant Minta Devi as recorded on 15.1.1999 at 11 a.m. at Bodhgaya P.S. is that the maika of the victim situates in village Hathiar and her sasural is in village Narkatia where she was living and her husband was working at Hariyana and that in the night of 6.1.1999 while she was sleeping alone in the room of her house after shutting the door, at about 11 o'clock she woke up on the sound of opening of the door shutters and she found that appellant Baleshwar Mahto, who was a resident of her Naihar village, Hathiar had entered into the room and he was standing there. She (informant) asked as to why he came there in the night whereupon he replied that she (informant) owes money to him and that he (appellant) will ravish her for the money. He (appellant) was carrying a pistol and putting the pistol on her (informant) came upon her on the cot and after removing her clothes forcibly committed rape on her. She further alleged that after committing the rape, the appellant caught hold of her by hands, dragged her out and tried to take her away but anyhow she rescued herself from him and concealed herself in the heap of straw there. She also alleged that on her cry, Dwarika Mallah had come there but instead of helping her he helped in escaping of the appellant from there. The informant further stated that in the morning she went to the house of her maushi at village Baltara and she lived there due to fear and that on 14.1.1999 when her mother and brother came there, they took her to her maika at village Hathiar and that from there she went to the Bodhgaya P.S. with them and gave her fardbeyan there. On the basis of the fardbeyan the" formal FIR (Ext. 3) was lodged and investigation commenced. On completion of investigation, charge-sheet was submitted against the appellant and 3 others, namely, Praveen Mahto, Rajesh Mahto and Dwarika Mallah who all were tried and on conclusion of trial, the appellant has been convicted and sentenced as above.