ORDER : 1. This appeal is directed against the judgment of conviction and order of sentence dated 07.02.2006 passed by the learned Addl. Sessions Judge-II, Rajmahal, Sahibganj in Sessions Case No. 103 of 2004, arising out of Barharwa P.S. Case No. 05 of 2004, corresponding to G.R. Case No. 39 of 2004, Rajmahal, Sahibganj, Jharkhand whereby and where under the accused appellant has been convicted under sections 376 of IPC and sentenced to undergo Rigorous Imprisonment for seven years. 2. The prosecution story arose in the wake of the written report of informant (Hereinafter referred to as ‘victim’ to maintain the confidentiality of her name: PW-1) wife of Madiur Sk. resident of village Sirasin under Barharwa P.S. in the district of Sahibganj wherein it was stated that on 2nd February 2004 it was Bakrid festival, on that day at about 9.00 a.m. in the morning the said Maidur Sk., husband of the informant (victim) along with other villagers had gone to Id-gaha, Sahebdanga for offering Namaz. At that time, the informant along with a dumb girl had gone to Naya Pokhar (pond) outside the village to take bath. As soon as she reached near pokhar, she saw the accused came out of Rahar bush taking a hasuwa (a sharp cutting weapon) in his hand and pressed her mouth and at the point of hasuwa asked her to be silent. Out of fear, she started shivering, in the meantime, the accused caught hold her neck and thrown her on the ground near bushes, in spite of protest, it was stated that the accused started molesting her and also committed rape upon her. The dumb girl seeing the situations started weeping and rushed towards the village and informed the villagers. Some of the ladies from the village came towards the pokhar and seeing them the accused after committing rape started fleeing away towards Satkhaw village. On hearing hulla, the informant’s husband and other villagers, who were returning back to the village after offering Namaz, came and followed the accused. It is stated that the accused came to his house situated at village Beldanga and entered into his house. Thereafter, the informant’s husband and the other villagers and some of the villagers of village Beldanga namely Pradip Saha, Vidhyadhar Rawani, Dilip Ramani, Bhoga Rajwar, Foni Rajwar and Rampad Rajwar brought the accused out of his house and thereafter, the accused confessed his guilt. Thereafter, the informant’s husband and the other villagers and some of the villagers of village Beldanga namely Pradip Saha, Vidhyadhar Rawani, Dilip Ramani, Bhoga Rajwar, Foni Rajwar and Rampad Rajwar brought the accused out of his house and thereafter, the accused confessed his guilt. It was further stated that the name of the accused was Ansar Rajwar, who was the resident of village Beldanga under Barharwa P.S. and the villagers of Beldanga told the informant to hold a panchayat, but, the appellant did not come in panchayati and the informant’s husband came to know that the accused Ansar Rajwar had fled away somewhere else thereafter the informant came to the P.S. and submitted her written report about the occurrence. 3. Upon the submission of the aforesaid written report the present case was registered by police bearing Barharwa P.S. Case No. 05/04 dated 05.02.2004 u/s 376 of the IPC against the accused and took up investigation. On conclusion of investigation, the police submitted charge sheet against the accused for the offence punishable u/s 376 of IPC, 1860 and accordingly, the learned A.C.J.M., Rajmahal took cognizance of offence and transferred the file of case to the S.D.J.M., Rajmahal for commitment. Later on, the case was committed to the court of sessions. Charge against the accused was framed on 31.08.2004 by learned Additional Sessions Judge (F.T.C.), Rajmahal, under section 376 of IPC and it was read over and explained to him in Hindi to which he pleaded not guilty and claimed for trial. The accused pleaded innocence and false implication in this case. 4. The learned trial court after conducting the full-fledged trial passed the impugned judgment of conviction and order of sentence which is under challenge in this appeal. 5. Heard Mr. Deen Dayal Saha, learned counsel appearing on behalf of the appellant and Mrs. Mohua Palit, learned A.P.P. appearing on behalf of the State. Arguments advanced on behalf of the appellant 6. It is submitted on behalf of the appellant that I.O. in this case has not been examined and non-examination of the I.O. has caused serious prejudice to the defence of the appellant because neither the place nor the date and time of the occurrence has been formally proved. Arguments advanced on behalf of the appellant 6. It is submitted on behalf of the appellant that I.O. in this case has not been examined and non-examination of the I.O. has caused serious prejudice to the defence of the appellant because neither the place nor the date and time of the occurrence has been formally proved. Further, it has been pointed out that one girl Aisnara Khatoon, who had accompanied the victim at the time of the occurrence has not been examined by the prosecution for the reasons best known to them. Further, it has been argued on behalf of the appellant that the FIR named witnesses including P.W. 5, P.W. 6, P.W. 7 and P.W. 8 have not supported the case of the prosecution, although it was a specific case of the prosecution as presented in the FIR that these witnesses were present when the appellant had confessed his guilt for the commission of the offence. Further, it has been argued that the medical report Ext. 2 photo copy of the injury report of the victim is on record and the same is not admissible in the evidence and in this view of the matter, the impugned judgment of conviction and order of sentence is bad in law and fit to be set aside. Arguments on behalf the State by the learned A.P.P. 7. On the other hand, the learned A.P.P. for the State vehemently opposed the contentions raised on behalf of the appellants and submitted that the victim P.W. 1 categorically supported her case as stated in the FIR and no major inconsistency has been found in the deposition of the victim to discard the case of the prosecution. It has also been submitted that the non-examination of the I.O. has not cause prejudice to the case of the prosecution because of the fact that witnesses including the victim examined on behalf of the prosecution has fully supported the case of the prosecution and no major inconsistency has been found and the delay in the institution of the FIR has also been explained as evident form the depositions of the victim and other witnesses including P.Ws. 2, 3 and 4 that on the date of the occurrence it was Bakrid and after the commission of offence the accused had confessed his guilt and, therefore, the villagers had advised the husband of the victim to organize a panchayati next day and on the next day panchayati was convened, but, the appellant did not turn up and he fled away from the place of occurrence and then on the next date, the case was instituted. Further, it has also been argued on behalf of the State that although the FIR named witnesses P.Ws. 5, 6, 7 and 8 have been declared hostile, but, the learned trial court has rightly considered the testimonies of the victim P.W. 1 and P.W. 2 (cousin of the victim Aasma Bibi), and P.W. 3 husband of the victim Maidur Sheikh. P.W. 4 Mahila Bibi, is a hearsay witness and all of them fully supported the version of the victim P.W. 1 and, therefore, there is no legal point to interfere in the impugned judgment of conviction and order of sentence and this appeal is fit to be dismissed for want of merit. Appraisal and Findings 8. Having heard the parties perused the materials available on record including the Lower Court Record. 9. It is found that the victim was a married woman having three children and while she was going to take bath in the nearby pond of the village along with a dumb girl then this appellant by putting her on fear of death committed rape upon her. 10. In order to support its case, the prosecution has been able to examine altogether eleven witnesses: P.W.-1, -victim and the informant of the case P.W.-2 Aasma Bibi, P.W.-3 Maidur Sk., husband of the informant P.W.-4 Mahila Bibi P.W.-5 Pradip Saha- hostile witness P.W.-6 Bidhyadhar Rawani - hostile witness P.W.-7 Dilip Rawani-hostile witness P.W.-8 Moga Rajwar – hostile witness P.W.-9 Aarti Karmkar- Staff Nurse P.W.-10- Dr. Manju Das (who medically examined the victim) P.W. 11- Dilip Kumar Jha, formal witness Apart from the oral evidences, the prosecution has been able to brought on record the following documentary evidences also including Ext.-1- is the signature of Maidur Sheikh (husband of victim) on fardbeyan, Ext. 2- Photo Copy of the injury report of the victim and Ext.-3 is the medical examination report of the victim (pathological report). 2- Photo Copy of the injury report of the victim and Ext.-3 is the medical examination report of the victim (pathological report). No evidence has been adduced on behalf of the appellant in his defence. 11. P.W.-1 the informant-victim supported the case of the prosecution and stated that the appellant holding hasuwa (a sharp cutting weapon) in his hand had caught hold her hand and pressed her mouth by putting her in fear of death and thereafter committed rape upon her. She also stated that a dumb girl accompanied her fled away out of fear from the place of occurrence and raised hulla about the occurrence and on hearing the alarm the informant’s husband Maidur Sk. (P.W.3) and other co-villagers came to the place of occurrence and saw that the accused was running away and then they chased the accused who had entered into his house and, thereafter, the husband (P.W.3) of the victim and other co-villagers entered into the house of the appellant and took him out of the house. She further deposed that the accused confessed his guilt in the presence of her husband and other villagers and the co-villagers advised the husband of the victim to call a panchayati in the next morning and she further stated that the accused did not turn up in the panchayati and fled away from the house and then the case was instituted. She further stated that she had put her thumb impression before the Officer In-Charge of Barharwa Police Station and she had identified the accused appellant Ansar Rajwar during the course of the trial. This witness has been cross-examined on behalf of the accused appellant, but, noting substantive has come out to disbelieve the version of the prosecution although the learned counsel for the appellant has pointed out that there were self-contradiction with respect to the injuries caused to her during the commission of the offence, but, the injuries which are said to have been caused to the victim during the course of the commission of the offence got redundant in view of her categorical deposition about the commission of the offence that the rape was committed by the appellant by putting her on fear of death by hasua (a sharp cutting weapon). 12. 12. P.W.2 Aasma Baibi (phupheri bahan of the victim) supported the version of P.W.1- victim and stated that on the date of occurrence it was Bakrid festival when the victim along with a dumb girl Aisnara Khatoon had gone to the village pokhar (pond) to take bath and after some time when the dumb girl started raising hulla (alarm) by pointing the notional sign responding about the occurrence then this witness ran to the place of occurrence and saw that the accused Ansar Rajwar was running away taking hasuwa in his hand and thereafter P.W.3 – husband of the victim reached there then the victim started weeping before her and told her that the accused appellant had committed rape with her on the point of hasuwa. Thereafter, this witness stated that the informant’s husband P.W. 3 and devar followed the accused. This witness also identified the accused Ansar Rajwar in the court room. In the cross examination the defence failed to bring forth any substantive inconsistency or discrepancy to disbelieve the version of the witness P.W. 2. 13. P.W.3- Maidur Sk. is the husband of the victim and supported the case of the prosecution and he stated that on the day of Bakrid festival he had gone to offer Namaj on the festival and about 9 a.m. he returned back to home then villager told him that his wife was ravished and thereafter, the accused ran away and then he started chasing the accused Ansar Rajwar who hide himself in his house situated at village Beladanga when this witness with the help of the villagers namely Pradip Saha, Dilip Rawani, Bidhyadhar Rawani and some other persons brought the accused Ansar Rajwar from his house and the accused had accepted his guilt and then the villagers told this witness to hold panchayati in the matter, but, on the next day when the accused Ansar Rajwar had fled away and did not turn up before the panchayati then he along with his victim wife came to Barharwa police station and submitted written report. He has also identified his signature in the written report which has been marked as Ext. 1. This witness has also identified the accused Ansar Rajwar in the court. In the cross examination, this witness has also been cross-examined, but, nothing has come out to disbelieve the version of this witness. 14. He has also identified his signature in the written report which has been marked as Ext. 1. This witness has also identified the accused Ansar Rajwar in the court. In the cross examination, this witness has also been cross-examined, but, nothing has come out to disbelieve the version of this witness. 14. P.W. 4 Mahila Bibi has also supported the case of the prosecution and has also stated about the place of occurrence. She had stated that on the day of occurrence it was Monday and on that day there was Bakrid festival. On that day in the morning at about 09:00 a.m. the victim lady along with a dumb girl Aisnara Khatoon had gone to village pokhar for taking bath. On hearing hulla raised by the dumb girl, who had accompanied the victim, she ran towards the place of occurrence and saw that one man was fleeing away and the victim told her that the accused had committed rape upon her and she has further stated that at the same time, the husband of the victim came and started chasing the appellant, who entered into his house. This witness has also supported the case of the prosecution to the extent that the husband of the victim had chased the accused and accused entered into the house. The fact remains to be taken into consideration that the categorical and unequivocal testimonies of the victim P.W. 1 has been supported by P.W. 2, P.W. 3 and P.W. 4. and as such the case of the prosecution is substantiated. 15. P.W.-5 Pradip Saha, P.W.-6 Bidhaydhar Rawani, P.W.-7 Dilip Rawani and P.W.-8 Moga Rajwar have been declared hostile on behalf of prosecution and each of them has not stated anything about the prosecution case. 16. P.W. 9 Aarti Karmakar was a staff nurse who stated that the victim had come to the Referral Hospital, Rajmahal where the victim was examined by Dr. Manju Das and she has proved the photocopy of the medical report which is Ext. 2. 17. P.W. 10 Dr. Manju Das, had stated in her evidence that on 05.02.2004 she was posted at Referral Hospital, Rajmahal. Manju Das and she has proved the photocopy of the medical report which is Ext. 2. 17. P.W. 10 Dr. Manju Das, had stated in her evidence that on 05.02.2004 she was posted at Referral Hospital, Rajmahal. On that date, she had medically examined the victim aged about 30 years who was brought by Police at about 3 pm and stated the following observations on the person of the victim:- On face - no mark of injury, breast and body healthy, perineum-healthy, no laceration, hymen-old rupture, clothes changed. Patient took bath with soap and water and then she came for examination. Internal examination – uterus normal size. L.M.P. - Not recorded for pregnancy test urine was sent for examination. For age determination- she advised her for radiological examination, but, she did not submit any report. Vaginal swab taken sealed and packed and sent it for pathological examination. She had also proved her medical report which has been marked as Ext. 2. She has also stated that P.W.-9 Arti Karmakar assisted her in medical examination of the victim lady. She had also proved the pathological report which is Ext. 3. This Ext. 3 refers that no spermatozoa either dead or alive was found during microscopic examination. 18. P.W. 11- Dilip Kr. Jha was advocate’s clerk, examined on behalf of the prosecution, was a formal witness and he has proved the FIR, which has been marked as Ext.4 although the I.O. in this case has not been examined and the formal FIR has not been proved as per the prescribed procedure of the Evidence Act, but, in view of the clear cut deposition of the victim P.W. 1 supported by P.Ws. 2, 3 and 4 the non-examination of the I.O. did not cause prejudice to the case of the defence. From the perusal of the deposition of the witnesses including P.Ws. 1, 2, 3 and 4 nothing has been put forth by the defence to ascertain the truthfulness of the witnesses by pointing out any inconsistencies in their respective depositions. 2, 3 and 4 the non-examination of the I.O. did not cause prejudice to the case of the defence. From the perusal of the deposition of the witnesses including P.Ws. 1, 2, 3 and 4 nothing has been put forth by the defence to ascertain the truthfulness of the witnesses by pointing out any inconsistencies in their respective depositions. The defence did not draw the attention of the witnesses on their earlier statements, in order to bring out any contradiction in the subsequent version of this witness during the course of the trial and, therefore, it is manifest that no fact brought forth by the defence in which the inconsistency is found and, therefore, this Court is of the view that the non-examination of the I.O. in this case has not caused any prejudice to the case of the defence inasmuch as there has been uniformity and coherency in the testimonies of the prosecutrix P.W.1 supported by the P.Ws.2, 3 and 4. Further, the medical examination repot Ext. 2 is also not very much significant under the facts and circumstances of the case because, the victim consistently supported her version in the court in the trial as stated in the FIR. No inconsistency is found either in the manner and mode of the occurrence and, therefore, the plea taken on behalf of the appellant that the photo copy of the medical report and non-finding of spermatozoa either dead or alive in the vaginal swab of the victim lady all get insignificant, because, it is admitted case that the victim lady went under medical examination after three days of the occurrence and the delay in the investigation of the case has been cogently explained by the prosecution in view of the fact that at the outset the accused appellant had confessed the guilt and, therefore, the villagers suggested P.W. 3, the husband of the victim, to convene a panchayati and thereafter, the accused fled away and then FIR was instituted. Such types of discrepancy is insignificant in the light of the version of the victim P.W. 1 supported by the P.Ws. 2, 3 and 4 and moreover the prosecution party is from rural background. 19. Such types of discrepancy is insignificant in the light of the version of the victim P.W. 1 supported by the P.Ws. 2, 3 and 4 and moreover the prosecution party is from rural background. 19. Having taken into consideration, the aforesaid evaluation of the evidences examined on behalf of the prosecution, this Court finds that the learned trial court has rightly appreciated the evidences adduced on behalf of the prosecution and this Court does not find any lacuna or error in the appreciation of the evidences and the findings arrived at by the learned court below and, therefore, the impugned judgment of conviction passed against the appellant for the offence punishable u/s 376 of IPC is fit to be sustained. In the back drop, this Court upholds the conviction for the offence punishable u/s 376 of IPC. 20. So far as the sentence is concerned, the learned defence counsel appearing on behalf of the appellant submitted that over the period of time this appellant has become 60 years old and presently he is in jail in this case and his bail was canceled because of his non-appearance. Further, it has been pointed out that almost the appellant has remained in jail about 4 years and there is nothing on record to show about his criminal history and the punishment which has been awarded by the learned court below is seven years and almost half of the sentence has been served by the appellant. 21. In view of the mitigating factors that the appellant has become 60 years old and the occurrence is of the year 2004 and there is nothing on record to show his criminal history. Further, it is also found that this appellant has already remained in jail for about four years and, therefore, justice would be meted out if his sentence is reduced to the period for a term already undergone by him. No purpose would be served to send the appellant again in jail and it is just and fair to award the sentence of imprisonment to the appellant for the period already undergone by him and further, the appellant is also sentenced to fine by way of compensation. 22. No purpose would be served to send the appellant again in jail and it is just and fair to award the sentence of imprisonment to the appellant for the period already undergone by him and further, the appellant is also sentenced to fine by way of compensation. 22. Accordingly, this Court sets aside the order of sentence imposed by the learned trial court and the sole appellant is awarded sentence of imprisonment for the period already undergone by him by reducing the period of sentence as awarded by the learned trial court and imposes the sentence of imprisonment to the appellant for the period already undergone by him and further imposes sentence of fine of Rs. 3,000/- (Rupees Three Thousand Only) by way of compensation to be paid to the victim P.W. 1 and in default of payment of fine as awarded by this Court, he shall serve the sentence of imprisonment as imposed by the learned trial court. 23. Since, the appellant is in jail and, therefore, this Court directs that on the payment of fine amount by way of compensation by the appellant, he shall be released forthwith if not wanted in any other case. The sole appellant may deposit the fine amount of Rs. 3000/- (Rs. three Thousand Only) by way compensation in order to give it to P.W. 1 through the Nazarat of the concerned Civil Court. The appellant may be allowed to deposit the said fine amount through the Nazarat of the concerned Civil Court. At the moment he deposits the fine amount he (appellant) shall be released forthwith on deposit of said fine amount if not required in any other case. 24. The learned court below is also directed that on deposit of the said fine amount by the appellant, the notice shall be sent to the victim/informant (PW-1) and on her appearance the said fine amount, so deposited by the appellant, shall be disbursed to her. In case if the said victim is not traceable or not available or not found at the given address, the same shall be disbursed to the close or near relatives or kith and kin of the said victim/informant (P.W.-1) as the concerned learned trial court may deem fit and proper. 25. Accordingly, the appeal is dismissed as above. 26. In case if the said victim is not traceable or not available or not found at the given address, the same shall be disbursed to the close or near relatives or kith and kin of the said victim/informant (P.W.-1) as the concerned learned trial court may deem fit and proper. 25. Accordingly, the appeal is dismissed as above. 26. Let the copy of the judgment be sent to the learned court below along with the Lower Court Records at once to do needful and compliance in this regard.