JUDGMENT : [Ratnaker Bhengra, J.] 1. Heard the learned amicus curiae appearing for the appellant and the learned counsel for the state. 2. This appeal is directed against the judgment of conviction and order of sentence, both dated 15.5.2010 passed by the learned Sessions Judge, Godda in Sessions Case No. 151 of 2008 arising out of Boarijore (Lalmatia) PS case No. 123 of 2007, corresponding to GR Case No. 1035 of 2007, whereby and whereunder, the appellant has been convicted under sections 354, 323 and 341 of IPC and sentenced to undergo RI for one year and six months with fine of Rs. 1,000/-, in default SI for one month for the offence under section 354 IPC, RI for six months for the offence under section 323 IPC and SI for fifteen days for the offence under section 341 IPC and all the sentences were directed to run concurrently. 3. The prosecution case, in brief, as per the fardbayan dated 11.10.2007 of the PW-1 informant (name concealed) is that on 09.10.2007 at 6 pm the informant had gone to attend nature's call. When she was returning, then, at the down of Simana Bandh, in the east, appellant Jai Kumar Yadav, came there suddenly and caught hold of her neck and took the informant to paddy field of one Mahesh Yadav and pushed her on the ground and assaulted the informant with fist, below her eyes. The informant raised halla, but, the appellant shut the mouth of the informant with his right hand and committed rape upon her and thereafter, he fled away. The informant became senseless and was lying there till 10:00 pm, in the night and after regaining her sense the informant came near her house, then, her younger son Manoj Mahto (PW-2) and one Kailash Yadav took her to her house, where the informant again became senseless. She regained her sense at about 8:00 pm next day and then she narrated the occurrence to her husband. On 11.10.2007, the villagers caught hold of the appellant and brought the appellant to the house of the informant and then matter was reported to the Lalmatiya police. 4. On the basis of the fardbeyan of the informant, Boarijore (Lalmatiya) PS Case No. 123 of 2007, GR No. 1035 of 2007 was registered against the appellant under sections 341, 323 and 376 IPC. 4. On the basis of the fardbeyan of the informant, Boarijore (Lalmatiya) PS Case No. 123 of 2007, GR No. 1035 of 2007 was registered against the appellant under sections 341, 323 and 376 IPC. After the investigation, charge-sheet was submitted against the appellant under sections 341, 323,307 and 376 IPC and cognizance of the offences were taken and the case was committed to the Court of sessions. Charges were framed against the appellant under sections 376, 307,323 and 341 of the Indian Penal Code and trial was held. At the conclusion of the trial appellant was convicted and sentenced as aforesaid, hence, this appeal. 5. Prosecution in support of its case had examined altogether twelve witnesses out of whom PW-1 is the informant or victim herself; PW- 2 is Manoj Kumar Mahto, who is the son of the informant; PW-3 is Harihar Mahto, who is the husband of the informant; PW-5 is Serveswar Mahto and PW-6 is Maheshwar Mahto and both are also the sons of the informant; PW-11 is Bijay Bhusan Minz, who is the Investigating Officer of the case and PW-12 is Dr. Usha Singh, who had examined the victim. PW-4, PW-7, PW-8, PW-9 and PW-10 were declared hostile by the prosecution. 6. PW-1 the victim has deposed that on the day of occurrence, at 6:00 pm, in the evening, appellant came and caught hold of her and pushed her in the field of one Mahesh Yadav and assaulted the victim with fist blows on her face as a result she became senseless. Appellant pressed her mouth with his right hand and lifted her sari with his left hand and committed wrong thing. Thereafter, victim was on the way to her house, but, before reaching her house she fell down near a drain and remained senseless till 10:00 pm. Kailash Yadav and his son Manoj Mahto brought her home and she informed about the incident to her husband. 7. PW-2 Manoj Kumar Mahto, is the son of the informant. PW-2 has stated in his evidence that occurrence took place on 9.10.2007 at 6 pm. Her mother went to attend the call of nature but did not return. They searched for her but could not find her. After 2-3 hours his mother came and fell down near the drain. Her mother told that appellant had caught hold of her, assaulted her and committed rape on her. Her mother went to attend the call of nature but did not return. They searched for her but could not find her. After 2-3 hours his mother came and fell down near the drain. Her mother told that appellant had caught hold of her, assaulted her and committed rape on her. There was a cut mark below the eye of his mother and bruise on her neck. In his cross-examination PW- 2 has stated that when he met her mother, she was senseless and his mother regained sense at 10:00 pm, but, she again became senseless. 8. PW-3 Harihar Mahto is the husband of the informant. PW-3 had stated that the occurrence took place on 09.10.2007 at 6:00 pm. The informant did not return after attending the call of nature. Appellant caught hold of the informant and raped her. A panchayati was convened on the next day in the village. PW-3 had identified his signature on the fardbeyan, which was marked as Ext.-1. In his cross-examination PW-3 stated that he met his wife at 9:00 pm on the date of occurrence itself and at that time his wife was senseless and at 6:00 am, in the morning of next day she regained sense. 9. PW-5 is Sarveswar Mahto and PW-6 is Maheshwar Mahto and both are the sons of the victim. Both PW-5 and PW-6 have stated in their evidence that occurrence took place at 6:00 pm on 9.10.2007. Appellant had assaulted their mother and committed rape on her. 10. PW-11 Bijay Bhusan Minz, is the Investigating Officer of the case. Investigating Officer had stated in his evidence that he had recorded the re-statement of the victim and other witnesses. Investigating Officer had described the place occurrence, which is the field of one Mahesh Yadav, in the village Lilatari. Investigating Officer had proved the requisition of medical examination of the victim which was marked as Ext.-2. Investigating Officer had proved the fardbeyan, forwarding on the fardbeyan and case requisition endorsement on the fardbeyan which were marked as Ext.-2, Ext.-1/2 and Ext.-1/3 respectively. 11. PW-12 is Dr. Usha Singh, who had examined the victim and found following injuries on her person: “External Examination: (i) Lacerated stitched wound below right eye 1 ½” x ¼” x ¼”. (ii) Stitched lacerated wound on forehead right side just above eye brow 1” x 1¼”x ¼”. (iii) Contusion around left eye. 11. PW-12 is Dr. Usha Singh, who had examined the victim and found following injuries on her person: “External Examination: (i) Lacerated stitched wound below right eye 1 ½” x ¼” x ¼”. (ii) Stitched lacerated wound on forehead right side just above eye brow 1” x 1¼”x ¼”. (iii) Contusion around left eye. (iv) Two linear abrasion on neck about 1”x1”. Doctor opined that there was no sign of sexual contact or rape and all the four external injuries were simple caused by hard and blunt substance. Doctor had proved the medical report of the victim which was marked as Ext.-5. ARGUMENTS ON BEHALF OF THE APPELLANT: 12. Ms. Amrita Banerjee, the Amicus Curiae, has first and foremost argued that there is delay in lodging of the FIR as the occurrence is of 9th October, 2007 but the FIR was lodged on 11th October 2007 which itself places the case under great suspicion and concoction. Amicus further stated that out of the twelve prosecution witnesses PW-4 Kailash Yadav, PW-7 Kuldip Yadav, PW-8 Ganesh Mahto, PW-9 Sudama Mahto and PW- 10 Anil Yadav were declared hostile as they had not supported the case of the prosecution. Moreover, amicus submits that PW-4 Kailash Yadav could have been an important witness as his name was mentioned in the fardbeyan, but, PW-4 was declared hostile. 13. Amicus further argued that there is no eye witness to the occurrence so it is difficult to sustain the case without eye witness. Place of occurrence has not been proved by PW-11 Investigating Officer because he has failed to prove the distance and this is fatal to the prosecution case as there was allegation of rape and the conviction is under section 354, 323 and 341 IPC. Learned counsel further said that PW-1, who is the alleged victim is highly unreliable and, therefore, unreliable witness should not be used to sustain a case of this nature against the appellant. 14. Amicus further said that victim had deposed that the police had not questioned her, but, on the other hand the police had stated that victim was questioned. Amicus further pointed out from paragraph No.6 of the evidence of victim and says that victim had stated that there was water and mud in the field, but, she has cleaned her sari. Amicus further said that victim had deposed that the police had not questioned her, but, on the other hand the police had stated that victim was questioned. Amicus further pointed out from paragraph No.6 of the evidence of victim and says that victim had stated that there was water and mud in the field, but, she has cleaned her sari. Amicus submits that victim had stated that she had fainted and then regained consciousness on the next day then how and when she had the time to clean her sari immediately and this is clearly a concoction and raises doubt on her trustworthiness. 15. Pointing out to paragraph No. 4 of the deposition of PW-3 Harihar Mahto, who is the husband of the victim, amicus said that panchayati was held on the next day, i.e. on 10th October 2007. Then question arises why FIR was lodged on 11th October, 2007 and hence, this delay is absolutely shocking when the officer-in-charge had himself came on the next day and yet the FIR was not lodged. 16. Amicus further said that initially FIR was for offence under section 376 IPC, but, appellant was convicted under section 354 IPC, so, in what circumstance the appellant was convicted under section 354 IPC is also not clear. Finally, amicus has argued that the victim herself is injured and the injury depicted by the doctor is a result of her falling. It has come from the record that she was fallen in the pit and, therefore, the injury should not go towards establishing the guilt of the appellant for offences under sections 354,323 and 341 IPC. 17. Finally the learned amicus curiae pleaded mitigating circumstance and submitted that the occurrence is of the year 2007 and the judgment is of the year 2010 and it is now 2022. So, almost fifteen years have passed and, therefore, at this stage it would not be proper to send the appellant again in prison. Appellant has already undergone the hardships of trial and imprisonment. Further, amicus has said that at the time of judgment appellant was only 25 years old and it means that at the time of occurrence he must have been about 21 to 22 years of age and, therefore, appellant was a very young man and there is no indication in the evidence or records or in the judgment that he has any prior criminal antecedents. Therefore, this mitigating circumstances may be taken into consideration while sentencing, if at all appellant is convicted. ARGUMENTS ON BEHALF OF THE STATE: 18. Mr. Azeemuddin, the learned counsel for the State has argued that in the FIR, there is specific allegation of rape, however, the learned trial Court convicted the appellant under sections 354, 323 and 341 IPC which is only because medical report did not support the allegation of rape, but, it appears to be of one under section 354 IPC. Learned trial Court has taken a lenient view in convicting the appellant under section 354 IPC and punished for one and half years and lessor punishment was awarded and therefore, no further leniency is required in this stage. 19. PW-12 Dr. Usha Singh had indicated four injurie on the person of the victim and these injuries were on vital parts of the body and they do not seem to be injuries that would result on fall, but, is a result of injury inflicted by the appellant while struggling with the victim. Further, no enmity has been shown between the parties and it is evident also from the evidence of PW-3 Harihar Mahto and hence, why allegation will be made against a person, who is known to them unless something had occurred. There cannot be any smoke without fire. 20. On the question of injuries sustained by the victim, learned counsel submitted that a question was put to the doctor but he denied that the injury could have been result of the fall, hence, it is obvious that it was a result of struggle between the appellant and the victim. Amicus curiae further submitted that PW-2 Manoj Mahto, PW-3 Harihar Mahto, PW-5 Serveswar Mahto and PW-6 Maheshwar Mahto, are all family witnesses and they have supported the allegation of rape. Counsel says that the family will not support the allegation of rape unless it is true as why family will bring shame upon an aged woman of 55 years unnecessarily. 21. Regarding the delay in lodging FIR, the learned APP submits that it has come on the record that panchayati was held in the village on the next day of occurrence and therefore, the case was lodged on 11th October 2007. 21. Regarding the delay in lodging FIR, the learned APP submits that it has come on the record that panchayati was held in the village on the next day of occurrence and therefore, the case was lodged on 11th October 2007. It is not uncommon in cases of rape to be lodged after few days because woman and the family normally hesitate to pursue charges in such cases and thus delay of three or four days cannot be considered as delay. The matter was not settled in the panchayat and then FIR was lodged. FINDINGS: 22. Having heard both counsels and having gone through the records of the case and in the facts and circumstances of the case, I find that appellant was convicted under sections 354, 323 and 341 of IPC. PW-1 victim in her fardbayan had stated that appellant had caught hold of her neck and dragged her to the paddy field of one Mahesh Yadav and pushed her down and there appellant assaulted the victim with fist and blow. In her examination-in-chief also victim had reiterated her statement and what she had stated in her fardbeyan. PW-12 doctor had found four injuries on the person of the victim (i) Lacerated stitched wound below right eye 1 ½” x ¼” x ¼” (ii) Stitched lacerated wound on forehead right side just above eye brow 1” x 1¼”x ¼” (iii) Contusion around left eye (iv) Two linear abrasion on neck about 1”x1”. Doctor opined that all these four injuries were simple in nature caused by hard and blunt substance. Hence, prosecution has proved the charges under sections 323 and 341 IPC against the appellant. 23. (i) Regarding conviction of the appellant under section 354 IPC, I find that though initially appellant was tried under section 376 IPC, but, the learned trial court had acquitted the appellant for the offence under section 376 IPC, due to insufficiency of evidence, but, held the appellant guilty under section 354 IPC. (ii) It is well known that it is difficult to make false accusation against a person who has no enmity with the victim and in this case a woman of 55 years with children who is making such an allegation and it is unbelievable that she will do so unless something had occurred. (ii) It is well known that it is difficult to make false accusation against a person who has no enmity with the victim and in this case a woman of 55 years with children who is making such an allegation and it is unbelievable that she will do so unless something had occurred. The evidence of family members are supportive in the sense that though they are not eyewitnesses and in such cases it is very difficult to get any eye witness but they were near the place of occurrence at that time and, therefore, they have narrated things substantially and there is no reason to disbelieve them. This court on going through the fardbeyan and deposition of the victim, finds that appellant had caught hold of her, pushed her down in the field of one Mahesh Yadav, pressed her mouth and had lifted her saree, which amounts to use of criminal force against the victim with intent to outrage her modesty. Therefore, prosecution has proved the charges under section 354 IPC against the appellant. 24. Accordingly, the impugned judgment of conviction dated 15.05.2010 passed by the learned Sessions Judge, Godda in Sessions Case No. 151 of 2008 arising out of Boarijore (Lalmatia) PS case No. 123 of 2007, corresponding to GR Case No. 1035 of 2007, requires no interference and is sustained and upheld. 25. So, far as sentence is concerned, I have gone through the mitigating circumstances pleaded by the amicus curaie. Occurrence year is of 2007 and till now almost 15 years have passed and at the time of occurrence appellant was fairly of young age of about 20-21 years. There is no indication of any prior antecedents and appellant has undergone some sentence. Hence, sentence imposed under section 354 IPC is reduced to six months RI and fine as passed by the learned trial Court below remains with default stipulation, and the sentence for section 323 IPC of six months RI remains and both the sentences shall run concurrently and period already undergone shall be subtracted from the imposed sentence. Here, it is pertinent to note that appellant has already undergone sentence of 15 days imposed under section 341 IPC by the learned trial Court. Bail bond of the appellant stands cancelled. 26. This Court is thankful to Ms. Amrita Banerjee, Amicus Curaie for her assistance rendered to this Court. Here, it is pertinent to note that appellant has already undergone sentence of 15 days imposed under section 341 IPC by the learned trial Court. Bail bond of the appellant stands cancelled. 26. This Court is thankful to Ms. Amrita Banerjee, Amicus Curaie for her assistance rendered to this Court. Member Secretary, JHALSA is directed to pay the remuneration to Ms. Amrita Banerjee, learned Amicus Curiae as per rules. 27. In the light of the final judgment passed in Cr. Appeal (SJ) No. 519 of 2010, I.A. No. 5320 of 2021 stands disposed of. 28. Therefore, Cr. Appeal (SJ) No. 519 of 2010 is dismissed with above modification in sentence.