Judgment:
Amareshwar Sahay, J.
1. The present appeal has been filed by the appellant Samsul Momin who was convicted for committing offence registered under Sections 366-A and Section 376 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of ten years each on both counts, by the 4th Additional Sessions Judge, Dumka S.P. in Sessions Case No. 414 of 1985 by Judgment dated 20.7.1991.
2. The prosecution case in short is that on 23.1.1985, the informant Shambhu Thakur lodged an FIR at about 9:00 p.m. alleging therein that his cousin sister Simla Kumari aged about 13 years was kidnapped by Samsul Momin (appellant) in order to marry her. After investigation, the charge-sheet was submitted under Section 366-A and 376 of the Indian Penal Code against the appellant,
3. In order to establish the charges, altogether ten prosecution witnesses were examined on behalf of the prosecution. PW 1 is the prosecutrix Bimla Kumari herself. PW 2 Kuko Devi is the mother of the prosecutrix. PW 3 Md. Jahur is a formal witness on the point of recovery of the girl. PW 4 is the informant Shambhu Thakur. PW 5 Satahari Thakur is a tendered witness. PW 6 Panto Devi is sister-in-law (Bhobhi) of the prosecutrix. PW 7 Kalabati Devi is another sister-in-law (Bhobhi) of the prosecutrix. PW 8 Kamla Devi is the elder sister of the prosecutrix. PW 9 is the Kamta Pati Singh, the Investigating Officer and PW 10 is the Doctor who medically examined the prosecutrix.
4. Learned Counsel appearing for the appellant submitted that there is inordinate delay in lodging the FIR which creates doubt on the prosecution case. He submitted that the alleged occurrence took place in the night of 21.1.1985 but the report was lodged on 23.1.1985 at 10:00 a.m. and this delay in lodging the FIR has not been explained by the prosecution. It is further submitted that according to the Doctor, the girl was major and was aged about 17-18 years and from the evidence adduced on behalf of the prosecutrix, it appears that the prosecutrix had love affairs with the appellant and she, out of her own will, eloped with the appellant in order to marry him.
It was further submitted that according to the prosecution, the appellant was threatening the family members of the prosecutrix that he would kidnap the victim Bimla Kumari to marry but the matter regarding such threat by the appellant was never reported to the police.
5. In order to test the submissions of learned Counsel appearing for the appellant, it is necessary to scrutinise the evidence adduced by the prosecution.
6. PW 1 the prosecutrix Bimla Devi has given her age as 18 years on 21.4.1987 and stated that the occurrence was of two years back in the night of Monday when she was going to sleep in the house of her sister-in-law (Bhabhi) Kalawati and when she reached in the Gafi (narrow lane), 4-5 persons caught hold of her and took her away on the point of chura, (Knife). She could identify the appellant Samsul Momin who committed rape upon her. She further stated that when she used to protest, the appellant used to threaten her to kill.
This witness was cross-examined by the defence and in her cross-examination in paragraph 10, she stated that she was kept for about 8 days in the house of the father of the appellant. In paragraph 12 of the cross-examination, she specifically denied that she had love affairs with the appellant. She denied that she fled away from her house out of her own will. She further denied that she was not minor at the time of occurrence.
7. PW 2 Kuko Devi, the mother of the prosecutrix has stated that in the night of occurrence, her daughter-in-law had requested her to send the victim girl to her house for sleeping as her husband was not there and on such request of her daughter-in-law, she sent the victim girl to go and sleep in the house of her daughter-in-law but the victim girl did not reach the house of her daughter-in-law as she was kidnapped by the appellant on the way itself.
In her cross-examination she has denied that her daughter had love affairs with the appellant.
8. PW 4 Shambhu Thakur, who is the informant has stated that his sister was sent by the mother to the house of Dinkauri Thakur, for sleeping in his house but she did not reach there and became traceless after she left the house. He has fully supported the statements made by him in the FIR.
9. PWs 6, 7 and 8 have corroborated the statements made by the informant. PW 9 the Investigating Officer has submitted that he recovered the victim girl from the house of Dost Mohammad, the father of the appellant in presence of the witnesses and the girl was taken for medical examinations. The appellant was also arrested from the said very house from which, the girl was recovered. He, in his cross-examination has stated that Dost Mohammad, the father of the appellant was not present in the said house,
10. PW 10 Dr. P. Sahay, who examined the victim girl on 6.2.1985, has assessed the age of the victim to be between 17-18 years.
11. As it appears that the occurrence was committed in the night of 21.1.1985 and the FIR was lodged on 23.1.1985 at 10:00 a.m. In my view, the delay if any, in lodging the FIR cannot be said to be vital in view of the fact that after the girl was missing, the next date, the informant party were searching for her and therefore, it cannot be said that there is inordinate delay in lodging the FIR.
Here in the present case, I find that the prosecutrix has categorically stated that she was forcibly taken away in the night of occurrence while she was going to the house of her sister-in-law on the point of Chura, and then she was kept in the house of father of the appellant for eight days, where she was raped by the appellant. She specifically denied the suggestions given by the defence that she had love affairs with the appellant and she, out of her own will, left her house in order to marry the appellant.
12. Nothing has been pointed out so as to make the statements of the prosecutrix unreliable. As a matter of fact, I find that the evidence of the prosecutrix is wholly trustworthy. Her evidence has been corroborated by the evidence of other witnesses i.e., her family members on the point that she was missing from the night of the occurrence and she was recovered from the house of the father of the appellant and from the said very house, the appellant was also arrested.
13. In this view of the discussions of the evidence adduced by the prosecution, I find that the prosecution has been able to establish the charge against the appellant beyond all reasonable doubts and as such, I do not find any illegality in the impugned judgment whereby the appellant was convicted for the offence under Sections 366-A and 376 of the Indian Penal Code.
Consequently, this appeal is dismissed by affirming the conviction and sentence passed by the trial Court. The appellant who is on bail, his bail bonds are hereby cancelled and he is directed to be taken into custody forthwith to serve out the sentence.