Sanjay Kumar Gupta ORDER
Sanjay Kumar Gupta, J.
1. This conviction appeal has been filed by Ahktar Hussain, which is directed against judgment dated 30.03.2005 passed by learned Sessions Judge, Kathua, in case FIR No. 148/1996 registered with Police Station Billawar, whereby appellant/accused namely Akhtar Hussain has been convicted under Sections 451, 506 and 376 read with 109 RPC. Accordingly Court below on 30.03.2005 has sentenced the appellant/accused for rigorous imprisonment for three years for offence under section 376/109 RPC and fine of Rs. 500/-, in default of payment of fine, rigorous imprisonment for two months; rigorous imprisonment for one year under section 506 RPC and fine of Rs. 500/-, in default of payment of fine, rigorous imprisonment for two months and rigorous imprisonment for one year under section 451 RPC and fine of Rs. 500/-, in default of payment of fine, rigorous imprisonment for two months. All the sentences have been directed to run concurrently.
2. It is pertinent to mention here that co-accused Gulzar Ahmed has been proceeded against under Section 512 Cr.P.C. by the learned trial Court during trial.
3. Prosecution case is that on 23rd October, 1996, complainant (hereinafter to be referred as prosecutrix) accompanied by her mother-Smt. Zainab R/o Lohari submitted a written application before Incharge Police Post, Malhar to the effect that in the intervening night of 21/22.10.1996 at mid-night when the prosecutrix was sleeping in her parental house and her younger brothers and sisters were also sleeping, somebody called for opening the door, she did not open the door and asked as to who he was, why the door should be opened and what job he has? After 2-4 minutes that person opened the door, entered into the room and caught hold of her and dragged her out. She raised alarm and cried for help, but nobody heard, as their house was situated at a lonely place, having no other house nearby. That person was identified by her as Gulzar Ahmed S/o. Ali Akbar and had threatened her to keep mum or will be done to death. The assailant removed her trousers forcibly adjacent to her house and committed rape upon her. Another person was with the said assailant-offender, but that companion did not indulge in any bad act except used to tell her to keep mum, not to raise alarm otherwise she will be done to death. Her mother is being not present at home that night and father having gone to Shimla to work as labourer and her mother having returned that day, so has presented the report. This report has been entered in the daily diary as Report No. 9 dated 23rd October, 1996 by the Police Post, Malhar and the offence having been found to have been committed. Request has been made to the Police Station, Billawar, whereupon a case bearing FIR No. 148/96 for offence under Section 376 RPC has been registered by the Police Station, Billawar.
4. After completion of the investigation by Incharge Police Post, Malhar-Sh. Chain Singh, ASI, offences under Sections 451, 376, 506 RPC were found established against the accused-Gulzar Ahmed, whereas the accused-Akhter Hussain was found involved under section 451, 376 read with section 109 RPC
5. Accused-Gulzar was charge-sheeted by court below for offences under Sections 451, 376 and 506 RPC, whereas Akhtar Hussain was charge-sheeted for offences under Sections 451, 376 and 109 RPC vide order dated 17th February, 1997. Both the accused pleaded not guilty and claimed trial.
6. As already mentioned, accused Gulzar was proceeded under section 512 Cr.P.C during trial.
7. Court below after trial, convicted accused Akhtar Hussain and sentenced him accordingly.
8. I have heard the counsel for appellant as well as State counsel. With the assistance of counsel, I have gone through the evidence on record. Before appreciating the evidence the brief resumes of statements of witnesses read as under:-
PW-Prosecutrix:- The victim has st........