LAKHU MANJHI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE sole appellant Lakhu Manjhi has preferred this Cr. Appeal against the judgment dated 10.12.1998 passed by the 4th Additional Sessions Judge in Sessions Trial No. 290/1997 whereby and whereunder the appellant was convicted under Section 376 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for 7 years.

(2.) THE prosecution story as it stands narrated in the statement of the prosecutrix Shakuntala Devi (FIR) Ext. 2 is that on 8.7.1997 while she was proceeding to take bath in a rivulet situated outside the village, she came across the sister of the appellant namely Malti Manjhian and the prosecutrix asked her as to why she was entangled with her husband and there held altercation by exchange of filthy language between the two. After such event the prosecutrix returned to her matrimonial home. On the command of father -in -law the prosecutrix kept mum. Since she had not taken bath in the rivulet she again proceeded at about 12 Oclock and after having her bath while she was returning at about 2 Oclock she came across the appellant Lakhu Manjhi who chastised her by threatening that she had insulted his sister within the hearing of the villagers. It was raining that time and in the same sequence he lifted the prosecutrix in his lap and forcibly removed her to the nearby forest and by removing her Saree he committed rape on her. Though she raised alarm to rescue her but there was none to come to her. After commission of the rape the appellant threatened her to be killed in case of communicating such incident to anyone and he escaped. She again returned back to the rivulet where she took bath and there she narrated the occurrence to one Pano Devi and she returned back to her matrimonial home. There also she narrated the occurrence to her husband and the members of the family and the neighbouring people. A panchayati was held soon thereafter in which the appellant was called for and he appeared but when he was interrogated about the occurrence he began to quarrel. Observing aggressive attitude of the appellant the punches advised her to institute a case at the police station. Finally she narrated that the Saree, which she was wearing at the time of commission of rape was washed in the rivulet.

(3.) ADVANCING his argument, learned Counsel submitted that the prosecutrix has made substantial development in her substantive evidence before the trial Court and the learned trial Court failed to take into consideration that conviction cannot sustain on such statement of the prosecutrix, PW 1 Jitu Mallick though has admitted that his statement was not recorded by the police but he was produced as the prosecution witness in the trial Court and his evidence was recorded. Admittedly, there is no eye -witness of the alleged occurrence except the statement of prosecutrix herself before the trial Court making certain development from her earlier statement before police by way of stretching the sequence of the occurrence is nothing but a fiction which does not inspire confidence and therefore, the conviction of the appellant for the charge under Section 376, IPC and substantial sentence thereto is unsustainable in the eyes of law.