DILIP MACHHUWA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE present appeal has been preferred by the sole appellant against the judgment of conviction under Section 376, IPC and order of sentence passed respectively on 18th and 19th November, 1997 whereby and whereunder the appellant was sentenced to undergo rigorous imprisonment for 10 years.

(2.) THE prosecution story in brief is that the prosecutrix Mira Kumari delivered her statement before the Bundu Police at about 8.30 p.m. stating, inter alia, that she was aged about 10 years and on the same day while she was returning from the grocery shop of Akchhay Mahto after pur -purchasing Biscuit, she came across the appellant Dilip Machhua who after delivering a Chocklet asked her to accompany him and took her away towards Manager Bandh on the northern bank of the pond and layed her down from back side. She further narrated that the appellant terrorized that in case of raising alarm she would be thrown in the pond after killing her. When she could not resist out of fear, the appellant lowered down her pantee and committed some bad work (rape) on her. During commission of offence he kissed her and after commission she was let off. She returned back to her home and narrated the occurrence to her mother, father and maternal grand -father. Disclosing the identity of the appellant she narrated that the appellant was the driver of the vehicle of the landlord of the house where she with her parents and maternal grand -father were living on rent. The police registered Bundu P.S. case No. 48 of 1996 under Section 376, IPC and after investigation submitted charge -sheet against the appellant under the said offence.

(3.) ADVANCING his argument Mr. Deo submitted that though the prosecution had examined altogether 9 witnesses but PW 1 prosecutrix is the only alleged to be the eye -witness and even if her evidence is accepted in its entirety, no offence under Section 376, IPC is made out. As a matter of fact, none of the ingredients for constituting an offence of rape has been established so as to attract the punishment against the appellant under Section 376, IPC. The explanation given in the definition of rape under Section 375, IPC, it is mentioned that penetration is sufficient to constitute the sexual intercourse and the necessary ingredient to the offence of rape is lacking in the instant case. It is nowhere alleged in the statement of the victim prosecutrix that the appellant had penetrated in her private part.