SHAIKHAWAT SAH Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THIS appeal is directed against the judgment of conviction dated 11-9-2002 and order of sentence dated 21-9-2002 passed by Shri Sanjay Prasad, 2nd Additional Sessions Judge, Giridih in Sessions Trial No. 318 of 2001, by which judgment he found the appellant guilty under Sections 376 and 341 of the Indian Penal Code and sentenced him to undergo 7 years R.I. for the charge under Section 376 of the Indian Penal Code, no separate sentence was passed under Section 341 of the Indian Penal Code.

(2.) IT is submitted by the learned counsel, for the appellant that although there is allegation made by the prosecutrix P.W.5, Pravin Khatoon that she was raped by the appellant-father-in-law, but not a single independent witness has supported the prosecution case. P.Ws.1 to 4, who are neighbouring witnesses, have turned hostile and the doctors have also opined that there was no positive sign of rape. In that view of the matter, the prosecution of the appellant is not proper and the same may be set aside. However, learned counsel further submitted that the appellant has remained in custody for 3 years and 8 months.

(3.) AFTER hearing both the parties and going through the record, I find that the prosecution case was started on the basis of a Fardbeyan given by informant, Pravin Khatoon (P.W.5) on 13-6-2001 before the Officer-incharge, Giridih stating therein that in the last night when she was sleeping in her room and her husband was sleeping in another room, her mother in law and other members also lived in the same house. In the night her father in law-appellant entered into her room and started outraging her modesty at the night at about 12.15 p.m. and when she protested then the accused assaulted by fist on her mouth and thereafter, committed rape upon her. When she narrated about the occurrence to her mother- in-law then her mother-in-law said not to disclose the occurrence to anybody and thereafter she narrated the occurrence to her husband and when her husband asked from his father then he threatened her husband that he would be ousted from the house, due to which her husband said nothing whereupon the Investigating Officer came and the victim gave her statement.