1 IN THE HIGH COURT OF JUDICATURE AT PATNA - - - - Criminal Appeal (SJ) No.559 of 2007 - - - - Against the judgment of conviction and order of sentence dated 18.4.2007 and 20.4.2007, respectively, passed by the Additional Sessions Judge, Fast Track Court No.I, Araria, in Sessions Trial No. 148 of 1995/Tr. No. 248 of 2006. ===================================================== Bidya Nand Mandal, son of late Somi Mandal, resident of Village Bhtiahi, Gareri Tola, P.S. Bathnaha( Jogbani) District Araria .... .... Appellant Versus The State Of Bihar .... .... Respondent ===================================================== Appearance : For the Appellant : Shri Mahendra Thakur, Advocate Shri Upendra Prasad, Advocate For the Respondent : Shri S.N.Prasad, A.P.P.. ===================================================== CORAM: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA ORAL JUDGMENT (Per: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA) - - - - The solitary appellant was charged of comitting an offence under Section 376 of the Indian Penal Code for being put on trial in Sessions Trial No.148 of 1995/ Trial No. 248 of 2006 by the Additional Sessions Judge-cum-Presiding Officer, Fast Track Court I, Araria. By judgment dated 18.4.2007, the learned Judge convicted the appellant of committing that particular offence and directed him, by order of sentence dated 20.4.2007 to suffer rigorous imprisonment for seven years as also to pay a fine of Rs. 5,000/-, else, to suffer simple imprisonment for one month. The appellant appeals to this Court. 2. The written report filed by P.W. 2, the victim of the offence, was the basis for drawing up of the F.I.R.( Ext.3). It was stated in the report that the prosecutrix had gone out to pick up fuel woods from the fields when this appellant caught her 2 by both her arms to take the informant into a pit and thereafter committed rape upon her. It was stated that when she wanted to get away from the clutches of the appellant, he completely immobilized her by catching both her legs and hands. The lady stated that when the act was over she raised a hulla which attracted persons who saw the appellant running towards north. 3. One does not know as to how investigation proceeded, but it appears from some of the documents placed on record, like Ext.1, which was a request from the Investigating Officer to the Medical officer, In-charge, that the prosecutrix was sent to the Doctor for being medically examined and she was examined and Ext.2 the medical report was issued by the Doctor. The Doctor has not been examined but still the document has been brought on record by Shri Dinesh Ram, P.W. 3 who stated that he was acquainted with the writing of the Doctor who had penned Ext.2. 4. Out of the other two witnesses, one was the mother of the informant examined as P.W. 1 and the other was the informant who examined herself as P.W. 2. The mother of the victim claimed herself to be the witness of the fact and stated that when she heard the moaning sound of the victim coming out of the ditch, she was attracted to that place and found that the appellant was running away after coming out of the ditch. She stated that it was pointed out to her by the victim that she had been ravished by the appellant and further that her petticoat was wet. 5. P.W. 2, the victim, stated the same facts that while she was out in the field to pick up fuel woods, she was caught by the appellant and taken into a ditch where she was ravished. In her cross-examination, the lady stated that she was enjoying the act of the appellant. So the evidence of the mother of the victim in which she was complaining against the acts of the appellant appears a bit 3 exaggerated. It has come in the evidence of P.W. 2, the victim that two days prior to the occurrence there was a fight or quarrel between the appellant and her husband. What was submitted was that the quarrel or fight could have ensued only on account of carrying on relationship of the lady with the appellant and the husband was objecting to that and this was the reason that the lady was coming very cleanly to the court to tell it that she was enjoying the act. The contention, as such, was that it could be a consented act or could be the act which was being indulged into by both sides for long. The submission was that it may not be an offence under Section 376 of the Penal Code as the lady was twenty years of age and further she was the mother of two children having married at a very early stage of her life. 6. Probabilities are coming out of the evidence and if the probabilities are in favour of the defence then the benefit of doubt has to accrue to the accused. It appears a case of that category where it could be doubtful as to whether it was an act of forcibly committing rape upon the lady or it was an act consensually enjoyed by two persons. That being the position, the appeal has to succeed. 7. In the result, the appeal is allowed and the appellant is acquitted of the charge of which he was convicted by setting aside the judgment and order of sentence. 8. The appellant, if he is still in custody, shall be released forthwith, if not wanted in any other case. ( Dharnidhar Jha, J.) Patna High Court The 12th September, 2011 Kanth/N.A.F.R.