Judgment CHANDRA MOHAN PRASAD, J. 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 Courts 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 oclock 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. 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. 4. As many as 6 witnesses were examined by prosecution. 5. PW 1 Munaki Devi is the mother of the informant. 6. PW 2 Ram Pukar Choudhary is the informants brother. 7. PW 3 Kapurwa Devi is the maushi of the informant. 8. PW 5 Minta Devi is the informant herself. 9. PW 4 Soma Kumari Singh is the doctor who had examined the informant. 10. PW 6 Ramesh Prasad Singh, S.I. is the Investigating Officer of the case. 11. The I.O. (PW 6) deposed that the FIR was instituted on 15.1.1999 on the statement of the informant. He further deposed that he had inspected the P.O. which is the informants sasural house at village Narkatiaganj and the house was a khaprapose house, the wall was made of mud and the P.O. room was of size 8 x 8 and there was a cot lying in the room. At para 5 of his cross-examination, he further stated that he did not find anything else excepting the cot in the room. Thus, the I.O. found only a cot in the P.O. room. However, at para 6 of his cross-examination he deposed that in course of investigation he learnt that the victim-informant was not of good character. The I.O. says to have learnt that the victim was not of a good character but he does not say about any material or statement of any witness on the basis of which he came to this conclusion about the character of the informant. The I.O. says to have learnt that the victim was not of a good character but he does not say about any material or statement of any witness on the basis of which he came to this conclusion about the character of the informant. Since, the I.O. does not mention any material or ground for his such conclusion about the character of the victim-informant, the opinion of the I.O. arriving at such conclusion is totally baseless. 12. The doctor (PW 4) deposed that she had examined the victim on 16.1.1999 and the medical examination report of the doctor has been marked as Exh. 1. According to the doctor the HVS was taken and examined microscopically and on examination spermatozoa dead or alive was not seen. Vaginal orifice of the victim admitted two fingers easily. The doctor opined that the victim was habituated to sexual intercourse and there was no recent sign of sexual intercourse. 13. The victim deposed that her husband was working at Hariyana and in the night of occurrence at about 12 oclock while she was sleeping in her house she woke up on the appellant Baleshwar Mahto entering into her room in the house. Then she asked him (appellant) as to why he had come there, whereupon, he replied that she owed to him and that for that money he will ravish her. He was carrying a pistol and he put pistol on her and on the point of pistol he committed rape on her. The victim goes to further say that he completed the rape by ejaculation. She continued to depose that after commission of rape the appellant caught hold of her by her hand and dragged her out of the house but she anyhow rescued herself from him and concealed herself in the heap of straw. She also deposes that Dwarika Mallah had come there but he helped Baleshwar (appellant) in escaping away from there. The informant further deposed that out of shame and dis-gress she went to her Maushi and that subsequently when her brother and mother came there they took her with them to her maika and on the next day she went to police station where she gave her statement and FIR was instituted. The informant further deposed that out of shame and dis-gress she went to her Maushi and that subsequently when her brother and mother came there they took her with them to her maika and on the next day she went to police station where she gave her statement and FIR was instituted. At para 2 of her evidence she deposed that Praveen, Rajesh, Dwarika Mallah and Basant were threatening to kidnap and make her traceless if she lodged a case with police. She also deposed that she gave statement before a Magistrate in this case but subsequently the accused persons threatened her and compelled her to change her statement under threats. At para 4 she also deposed that she was married 8-9 years ago. She also deposed that the appellant runs a grocery shop and she occasionally took articles on credit from his shop and Rs. 30-40 was due to the appellant on account of articles taken from the shop. She denied the defence suggestion that earlier she used to meet the appellant in seclusion. At para 5 she stated that in her room there was a cot only. 14. At para 6 of her evidence the informant deposed that her mother-in-law and dewar were living separate in different villages but her grandmother-in-law was living with her in a different room in the house and that her husband maintained the grandmother-in-law also. She also deposed that she works as a labourer and on the day of the occurrence she had gone for thrashing crop on wages and that after completing her work she had come to her house and had gone to sleep at 7 oclock in evening. She further deposed at para 7 that the appellant had committed rape for about 5 minutes. She further deposed that when she came out of her house she had raised hulla. She also deposed at para 8 that after the occurrence she reached Bodhgaya at 8 a.m. and from there she went to house of her maushi She also deposed that on the next day of her coming at her maushis house her mausha had gone to her maika for informing her mother and that after eight days, her mother had come there and had taken her into her maika, Hathiar. She also deposed that her brother advised her to lodge a case about the occurrence. She also deposed that her brother advised her to lodge a case about the occurrence. She continued to depose that 20 days after the occurrence her brother had lodged a case against Baleshwar Mahto (appellant) with the allegation of kidnapping her. 15. The learned counsel for the appellant argued that the informant says that her mausha informed her mother on the next day of the occurrence but she came after 8 days. Nodoubt, there is some delay, but this has to be considered in the light of the evidence of the informant that the appellant and others were threatening the informant to kidnap her and making her traceless if she lodged a case. 16. The learned A.P.P. replied that due to humiliation and fear she went to her maushis house and remained there due to threat given shortly after the occurrence. The informant supports the prosecution case in all material particulars of the case. 17. PW 3 Kapoorwa Devi, maushi of the informant has deposed that the informant had come to her house and had disclosed that Baleshwar (appellant) had committed rape on her. She further deposed that when mother and brother of the informant came there, the informant went to her maika at village Hathiar. In her cross-examination she stated that the husband of the informant works out of station and the informant lives alone in her house. She also deposed that while coming from village Narkatia (the sasural village of the informant) to her house (PW 3) village Hathiar (maika village of the informant) falls in the way. Here the learned counsel for the appellant also argued that the maika village i.e. Hathiar falls in way while going to the house of informants maushi in village Baltara but while going her maushis house the informant did not go to her house situated in village Hathiar which falls in the way. But reasons for this can be easily gathered from the evidence of the informant that the appellant Baleshwar Mahto who is a resident of her maika village had tried to kidnap her away after committing the offence of rape and that the appellant and others had also threatened to kidnap her and make her traceless if she lodged a case with the police station. Hence, the informant was afraid that she might be kidnapped if she visited or stayed in her maika house at Hathiar, hence, she had gone to her maushis house situated in a different village at Baltara. Thus, PW 3 supports the prosecution story that the informant had gone to her house and had disclosed to this witness about commission of rape by the appellant on her. 18. PW 1 Munaki Devi, the mother of the informant learnt about the occurrence from her daughter (informant). She further deposed that her daughter had gone to her maushis house at Bartara and she (PW 1) had gone there and brought her to her maika house from there. PW 1 further deposed that while she was going to lodge a case Brajesh, Rajesh and Praveen had threatened to kill her and her family members if she lodged a case at the P.S. She says that her daughter disclosed her about occurrence. She also deposed that the appellant Baleshwar Mahto is a resident of her village (Hathiar). She also deposed that Surendra Choudhary, the huscbacnd of the informant works at Hariyana. Thus this witness, who is the mother of the informant learnt about the occurrence from the informant and she went with the informant to the P.S. for lodging a case there. 19. PW 2 Ram Pukar Choudhary is the brother of the victim- informant who has learnt about the occurrence from the informant that the appellant Baleshwar Mahto had committed rape on her. He also deposed that Baleshwar, Praveen and Rajesh had threatened him for not lodging a case with the police. He also deposed at para 3 that after the occurrence he has lodged another case against the accused. Thus, this witness who is the brother of the informant says about occurrence having learnt from the informant. He also says that the appellant and others had threatened him for not lodging a case. 20. The prosecution has proved Ext. 4 which is the statement of the informant as recorded under Section 164 of the Cr PC during investigation. In this statement the informant has fully supported the allegation against the appellant as deposed in her evidence. 21. Thus, considering the evidence of the victim-informant it is found that she fully supports the allegation about commission of rape on her by the appellant Baleshwar Mahto. In this statement the informant has fully supported the allegation against the appellant as deposed in her evidence. 21. Thus, considering the evidence of the victim-informant it is found that she fully supports the allegation about commission of rape on her by the appellant Baleshwar Mahto. During hearing the learned counsel for the appellant argued that medical evidence does not support the allegation. It was submitted that the doctor found during examination that the informant was habituated to sexual intercourse and there was no recent sign of sexual intercourse. But this has to be found that she (informant) was examined 10 days after the occurrence and she was a married lady. Hence. it was natural that any sign of sexual intercourse was not found when the medical examination was done 10 days after the occurrence. 22. In show cause reply as submitted by the appellant on notice under Section 386(3) of the Cr PC the appellant has filed Annexure-A which is affidavit dated 10.2.1999 of the informant with the statement that the kidnapping case lodged by her brother was false. Ext. A/1 is the informants affidavit dated 10.2.1999 wherein it is stated that this very case i.e. rape case was got instituted by her (informants) brother falsely. These affidavits were also filed by the appellant during trial and were proved by him as Exts. B and B/l. Besides this, the appellant also proved the statement of the victim recorded in kidnapping case under Bodhgaya P.S. Case No. 10 of 1999 which is exhibited A and wherein the informant stated that this rape case was falsely instituted by informants brother. On the basis of these statements under Section 164, Cr PC as given in another case i.e. Bodhgaya P.S. Case No. 10 of 1999 and the two affidavits i.e. Exts. B and B/l, the learned counsel for the appellant submitted that the informant had given statement that this rape case was instituted falsely at the behest of her brother and the kidnapping case was also false. 23. B and B/l, the learned counsel for the appellant submitted that the informant had given statement that this rape case was instituted falsely at the behest of her brother and the kidnapping case was also false. 23. The learned A.P.P. replied that the informant as well as her mother and brother all have stated that the appellant and others were threatening to kill them if they lodged a case before police and the informant has categorically stated in her evidence that after institution of the case the appellant and others had threatened her and by keeping her under threats she was compelled to give statement against her case. The learned A.P.P. referred to Ext. 4 le. the statement of the informant, as recorded in the instant case, under Section 164 of the Cr PC wherein the informant fully supported the allegation on the appellant and the learned A.P.P. continued to argue that the informant supported the prosecution case in her earlier statement as given under Section 164, Cr PC and she also supports the prosecution case in her evidence adduced before the Court and she also explains that after lodging of this case the appellant and others kept her under threat and they got recorded her different statements by putting her under threats. The learned A.P.P. argued that Exts. A, B and B/l as brought on record by the appellant in his defence and also in reply to show cause under Section 386/(3) of the Cr PC are nothing and that it goes to show that the appellant had kept the victim-informant under threat and all these statements were obtained under threats. 24. Hearing the learned A.P.P., I find that these documents as brought by the accused/appellant do not help him rather in the light of the evidence of the informant it appears that after the occurrence, she was put under threats and compelled to give different statements under threat. Thus, with regard to seriousness of the offence, the learned A.P.P. submitted that the appellant did not only commit rape on the informant but he also tried to kidnap her away and that subsequently by putting her under threats she was also compelled to give statements against her case. 25. Thus, with regard to seriousness of the offence, the learned A.P.P. submitted that the appellant did not only commit rape on the informant but he also tried to kidnap her away and that subsequently by putting her under threats she was also compelled to give statements against her case. 25. In such view of the matters, I find that the sentence of R.I. for 7 years as awarded by the trial Court needs reconsideration and in the facts and circumstances of the case, it is a fit case for enhancement of sentence which is hereby enhanced to a sentence of R.I. for 10 years. Thus, this appeal is dismissed with a further order under Section 386(3) of the Cr PC that the sentence of R.I. for 7 years as awarded to the appellant is hereby enhanced to a sentence of R.I. for 10 years. 26. Thus, this appeal is dismissed with enhancement in sentence as indicated above.