JUDGMENT By Court: Heard learned counsel for the appellants and learned counsel for the State. 2. It appears from the record of Hon’ble Court that on 15.07.2008 the case was placed for hearing but since nobody appeared on behalf of the appellants, their bail bonds were cancelled and the 1st Additional Sessions Judge, Deoghar was directed to issue warrant of arrest against the two appellants but they have not appeared. The service report given by the 1st Additional Sessions Judge, Deoghar shows that warrants of arrest have been issued in the year 2008 itself. Thereafter again warrants were issued through Superintendent of Police, Deoghar but they failed to apprehend the appellants and as such it appears that after filing the appeal and after getting the ad-interim bail they have absconded and they are traceless. 3. In absence of the counsel for the appellants and on the request of the Court, Mr. Peeyush Krishna Choudhary, Advocate agreed for argument on behalf of the appellants. 4. This appeal is directed against the judgment of conviction dated 01.08.2000 and order of sentence dated 04.08.2000 passed by Shri Harish Chandra Mishra, 1st Additional Judge, Deoghar in Sessions Case No.71 of 1997 by which judgment learned Addl. Sessions Judge found the appellants guilty under Sections 376, 341, 147, 149 & 323 341 of the Indian Penal Code and sentenced both the appellants to undergo R.I. for ten years and to pay a fine of Rs. 10,000/-under Section 376 of the Indian Penal Code and in default of fine to go further R.I. for one year each. Both the appellants were further sentenced to undergo S.I. for one month under Section 341 of the I.P.C, R.I. for one year under Section 147 I.P.C. and R.I. for six months under Section 323/149 of the I.P.C. However, all the sentences are directed to run concurrently. 4. The prosecution case was started on the basis of First Information Report given by the informant-P.W.3 Saidun Bibi stating therein that on 21.09.1996 Md. Jailunish Mian S/o Md. Chhedi Mian and Md. Jabir Mian S/o Sardar Mian, Kabir Mian s/o of Sardar Mian came and asked water from her father-in-law Abdul Gani. 4. The prosecution case was started on the basis of First Information Report given by the informant-P.W.3 Saidun Bibi stating therein that on 21.09.1996 Md. Jailunish Mian S/o Md. Chhedi Mian and Md. Jabir Mian S/o Sardar Mian, Kabir Mian s/o of Sardar Mian came and asked water from her father-in-law Abdul Gani. He asked her to bring water and when she came with water, appellant Jailunish snatched lota full of water and threw it on the ground thereafter appellants Jailunish Mian, Jabir Mian and Kabir Mian caught hold of her and took her inside the room by dragging her. Then Jainulish undressed her and thereafter committed rape upon her by force in presence of Kabir Mian and Jabir Mian. Jabir Miyan completed rape after ejaculating sperm under her private organ. Then Jabir committed rape upon her. On hulla made by her father-in-law her husband came running from field then Jainulish Mian, Wali Mohammad and Jabir Miyan came and assaulted her husband and also assaulted her father-in-law. 5. On the basis of said fardbeyan police registered a case under Sections 376, 341, 147, 149 & 323 341 of the Indian Penal Code and after investigation submitted charge sheet against accused persons. 6. Since, the case was exclusively triable by the Court of Sessions the learned Chief Judicial Magistrate after taking cognizance of the case committed the same to the Court of Sessions and subsequently the case was transferred to the Court of 1st Additional Sessions Judge who tried the case and found the two appellants guilty and thereby convicted them as aforesaid. 7. It is submitted by learned counsel for the appellants that except the victim P.W.3 Saidun Bibi herself, no witness has supported the prosecution case as given by her of rape and at best it is case of outrage of modesty and assault. 8. Learned counsel for the State has not supported the prosecution case but submits that there was sign of rape on the victim girl and independent witness have supported the prosecution case. 9. I have heard both the parties and gone through the record. In order to the prove the charges prosecution has examined six witnesses. P.W. 1 is Md. Nuruddin. He has stated that on 21.09.1996 at about 10 a.m. on hearing hulla from his house he came from the field. 9. I have heard both the parties and gone through the record. In order to the prove the charges prosecution has examined six witnesses. P.W. 1 is Md. Nuruddin. He has stated that on 21.09.1996 at about 10 a.m. on hearing hulla from his house he came from the field. When he entered in the house he was assaulted by Wali Mohammad by Farsa. Apart from him, appellants Md. Jainulish, Md. Jabir, Md. Kabir and Md. Jalir also assaulted him with lathi, as a result of which, he became unconscious. When he became conscious, his wife narrated the story that she was raped by accused Jailunish Mian & Jabir Mian. He also stated that the accused persons had also assaulted his father. He proved the signature on the First Information Report as Exts.1 and 1/1. He identified all the accused persons in dock. In his cross examination he submitted that the bari and well of the accused persons are at the distance of 40-50 hands and used the same for watering the bari. He also admitted that accused Jailunish Mian is the step brother of his father and Kabir and Jabir Mian are sons of his uncle. He stated that he had not seen the appellants committing rape upon his wife and assaulting his father. P.W.2 Abdul Gani (father-in-law) stated that the accused persons on the date of occurrence at 10 a.m. came and started assaulting. He came inside and asked from his daughter-in-law for water and when his daughter-in-law brought the water then accused Jainulish Mian threw the water and caught hold to his daughter-in-aw and took her inside the room by force along with Jabir Mian. Subsequently, when his daughter-in-law came out she stated that she was raped by both of them. He also stated that his son was assaulted by accused persons causing head injury. He also identified accused persons in dock. 11. In his cross examination he stated that in his presence the accused Jainulish snatched lota of water from the hand of his daughter-in-law and thereafter took her by force inside the room. 12. He also stated that his son was assaulted by accused persons causing head injury. He also identified accused persons in dock. 11. In his cross examination he stated that in his presence the accused Jainulish snatched lota of water from the hand of his daughter-in-law and thereafter took her by force inside the room. 12. P.W. 3 Saidun Bibi fully supported the statement given in the F.I.R. and she stated that on the date of occurrence at 10 a.m. when she had given water to her father-in-law Abdul Mian then accused Jainulish Mian and Jabir Mian caught hold of her and took her inside the room and after undressing committed rape upon her one by one. Accused Kabir was also standing there. Wali Mohammad was armed with Farsa and Jabir was armed with Lathi. On hulla when her husband came running from the bari then they assaulted him with farsa and lathi causing head injury due to which he became unconscious. Thereafter again they assaulted her father-in-law and ran away. In her cross examination she stated that the bed and bed-covers were removed by her from the room. In Para 12 she stated that during rape she had received injury on her back and buttocks. 13. P.W. 4 is Dr. Kumari Asha who has stated that she examined victim on the same date on 21.09.1996 but she found no injury on her person nor she found external or internal injury on her private parts. She found no spermatozoa in her vagina nor there was any blood stain on her vagina. 14. P.W. 5 Dr. Ramesh Kumar who examined injured Nuruddin found lacerated wound on the middle of the fore hand. Injury was simple in nature. He proved injury report as Ext. 3. He examined Abdul Gani and found four simple injuries on his person. He proved it as Ext. 3/1. 15. P.W. 6 is the I.O. Laxaman Choudhary. He proved the details of the place of occurrence. He stated that there was dispute with regard to taking water and watering bari between accused and the informant due to which the case was lodged. In cross examination at Para 9 he stated that victim lady although stated that she was raped but she produced no cloth which she was wearing at the time of occurrence nor he found any sperm at the place of occurrence. 16. In cross examination at Para 9 he stated that victim lady although stated that she was raped but she produced no cloth which she was wearing at the time of occurrence nor he found any sperm at the place of occurrence. 16. Thus, after going from the entire prosecution evidence, I find that fight took place between accused person and informant with regard to use of water which has been admitted by P.W. 2 Abdul Gani. He stated in his evidence that when he was sowing brinjal tree in his bari then he was objected by the accused persons. Thereafter he was assaulted and he entered in his house. Then the daughter-in-law was assaulted by force inside the room. Although the informant P.W. 3 Saidun Bibi stated that she was raped by the two persons Jainulish Mian and Jabir Mian but her case has not been supported either by medical evidence or by the I.O. as the I.O. had found no sign of rape inside the room nor the doctor has found any sign of rape on victim lady. However, as per the evidence of P.W. 1 and P.W.3 it has been proved beyond reasonable doubt that two accused persons outraged the modesty of the informant Saidun Bibi and also assaulted her husband P.W.1 Md. Nuruddin and Abdul Gani, her father-in-law. In that view of the matter the conviction of the appellants under Sections 147/323/149 I.P.C. are correct. However, so far the conviction and sentence passed under Section 376/341 of the Indian Penal Code is concerned, the same are altered by Section 354/341 of the I.P.C. and accordingly, the appellants are directed to under go R.I. for two years and to pay a fine of Rs. 5000/-and in default of fine to under go further S.I. for six month. 17. With the aforesaid alteration in the finding of conviction and sentence this appeal is allowed in part. The Trial Court is directed to issue warrant of arrest against both the appellants for serving their sentence. 18. Let a copy of this order be given to the lawyer appearing as amicus curiae.