Criminal Appeal (SJ) No.160 of 2007 Against the judgment of conviction dated 14.12.2006 and order of sentence dated 15.12.2006 passed by the Additional Sessions Judge, Fast Track Court No.V, Kishanganj in Sessions Trial No.603 of 2004/Trial No.55 of 2006 arising out of Thakurganj(Pauakhali)P.S.Case No.83 of 2004, G.R.Case No.453 of 2003. JUBER ALAM.... .... APPELLANT VERSUS STATE OF BIHAR.... .... RESPONDENT For the Appellant: S/Sri Pankaj Kumar Sinha Diwakar Sinha & Kamal Kishore Jha, Advocates. For the Respondent: Sri Ajay Mishra, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J The present appeal is directed against the judgement dated 14.12.2006 and order of sentence dated 15.12.2006 passed by the learned Additional Sessions Judge-cum-Presiding Officer, Fast Track Court No.V, Kishanganj in Sessions Trial No.603 of 2004 by which the appellant Juber Alam was held guilty of committing the offence under Section 376 IPC and was directed to undergo rigorous imprisonment for seven years. 2. The prosecution story is contained in the fardbeyan dated 07.06.2003 of Afjarunisha(P.W.3,) the daughter of Abul Hasan(P.W.4). It was stated by the prosecutrix 2 that about one and half months prior to 7.6.2003, she had gone into the fields from her house which was about half kilometer away from her house. The kamat of Jainuddin, who happened to be the father of the present appellant, was also located on that side of the village. At about 3 P.M. when she was picking up fuel- woods from the field when the present appellant came and asked her to herd the goats belonging to the appellant-back. Accordingly, P.W.3 stated that she went to herd the goats back to the kamat of the appellant and while so doing, she was followed by the appellant. At a lonely, secluded place, it is alleged by P.W.3, the appellant attempted to commit rape upon her which was resisted by the lady. It is stated that the appellant threatened her to kill and after putting her down on the ground committed rape upon her. The prosecutrix alleged that she was shouting for help, but because of the place being secluded and no one being around there was none to help her out. 3. It was stated by the prosecutrix that she came weeping to her house and narrated the incident to her parents who went to the house of the appellant to lodge a protest and to inform the parents of the appellant about his the acts. 3 When the father of the prosecutrix was about to leave for police station, the parents of the appellant and their other son, Junaid and his wife besides others persuaded them to stop for the time being as the issue could be settled through a Panchayati and accordingly, a Panchayati was also convened. It is stated that the present appellant confessed his guilt of committing the offence with the prosecutrix and a decision was taken that the appellant would marry the lady and, accordingly, after fixing the dainmehar at Rs.2,50,000/- her marriage was solemnized with the appellant and the parents of the appellant had promised to take the lady to their house in ten days time. 4. The prosecutrix stated that she was not taken to the house of the appellant and instead his parents started demanding Rs.10,000/- and a buffalo as the pre-condition for taking the lady to their house. The lady stated that the demand could not be fulfilled because of the incapacity of her parents and the parents of the appellant also expressed their inability to the parents of the prosecutrix in not takeing the lady to their house, and they refused to acknowledge the lady as their daughter-in-law. 4 5. The Investigating Officer has not been examined and as such there is no evidence on record as to how the investigation proceeded after the FIR of Thakurganj(Pauakhali)P.S.Case No.83 of 2003 was drawn up. However, it appears from the evidence of three doctors, namely, P.Ws.9, 10 and 15 that a medical board was constituted by the Civil Surgeon, Kishanganj for assessing the age of the victim. The three doctors, i.e., P.Ws.9, 10 and 15 assessed the age of the victim and submitted their report dated 29.09.2003. The board of three witnesses was of the opinion that the lady was aged about 17 years in the light of the medical data which were available to them through the ossification of different joints of the lady. It further appears from perusal of the evidence of the witnesses that investigation resulted in submission of the chargesheet and ultimately into the trial of the appellant which ended in the impugned judgment. 6. The defence of the appellant was that the allegations were false and fabricated, purposely brought about only with a view to earning a place in the household of the appellant as his wife as the father of the lady was desirous of getting the prosecutrix married to 5 the appellant which was not agreed to by the parents of the present appellant. It is further the defence of the appellant that the father of the appellant had filed a criminal case one and half months prior to filing of the present case in which the father of the lady and her uncle and others had been sent to prison and after the father of the lady had come back from jail he by fabricating the story had got initiated the prosecution story. These facts appear brought on record by cross-examination of various witnesses, like, P.Ws.2, 4, 5, 6 and through the suggestion given to the mother of the prosecutrix in paragraph-3 of her evidence regarding the falsity of the case and the case being foisted as a pressure tactics. 7. During the course of the trial, the prosecution examined as many as 16 witnesses out of whom P.Ws.7, 8, 11 and 12 were declared hostile. I have just noted that P.Ws.9, 10 and 15 were the doctors constituting the board which was formed by the Civil Surgeon to assess the age of the victim which submitted its report Ext-1. P.Ws.1, 2, 6 and 14 were villagers who were also hearsay witnesses. P.W.5 Saletun Nisha was the mother of the prosecutrix whereas P.W.4 Abul 6 Hasan was her father. P.W.13 Alfi Begum was making statement on fact of holding of Panchayati and having learnt about the incident and further the marriage of the prosecutrix to the appellant as per the decision taken in Panchayati. P.W.14 Md. Alam is the husband of P.W.13 and he has also given the same evidence as has been given by his wife P.W.14. 8. The defence also examined a witness, namely, Rustam Ali who was giving evidence that the appellant was never married to any one and there was no Nikah or Nikahnama between the two on account of the alleged marriage and further that the prosecutrix was elder to the appellant by 10-12 years and she was a vagrant lady who could be found going around in the market place and, further, that she had not been married to any one and the case had been filed in order to exerting criminal pressure upon the parents and the appellant. 9. Sri Pankaj Kumar Sinha, the learned counsel appearing on behalf of the appellant has taken me through the evidence of the witnesses to submit that the Maulvi who was said to have read out the Nikahnama has not been examined nor the witnesses to the marriage which was claimed to be 7 solemnized between the prosecutrix and the present appellant were examined. It was submitted that the case has been admitted to be filed only in order to putting pressure upon the parents of the appellant so that they agreed taking the lady back to the house of the appellant. Contention was further that the story of Panchayati does not appear even probablized least to talk of being established as none of the Punches whose names have been admitted or stated by the prosecutrix in her evidence, came to support the fact that in fact there was a decision that the two, i.e., appellant and the prosecutrix should get married and there was also some other decisions regarding the dainmehar and in pursuance thereto, the appellant had married the lady. It was contended by making reference to the evidence of P.W.6, specially to the fact which appear in paragraph-2 of his evidence that there was no whisper of any act complained of committed by the appellant nor was any Panchayati ever convened or any decision taken by the Punches and as such there was no marriage between the appellant and the lady. 10. It is true that the present appeal is not related to a decision on the questions of marriage and its validity, but because that is 8 the most fundamental fact on the basis of which the whole prosecution has been launched so it appears to this Court as one of the circumstances which could be necessary to be established by facts. The prosecution story is that after having lodged the complaint the parents of the appellant, the father of the prosecutrix and she herself were about to go to the police station, but they were requested to stay back so that a Panchayati could be convened and lastly, the Panchayati was convened which took a decision in the light of the confession of the appellant of having committed the act complained of. P.W.3, the prosecutrix had admitted in her evidence in paragraph-8 that the Punches in the Panchayati were four persons, namely, Abdulla, Hussain Bux, Tazmul and Alabo. The witnesses who were examined in the trial have spoken of the Panchayati being held. But, no one has stated that he had himself participated in the Panchayati or was present personally to witness the proceeding of the Panchayati and thereby to have heard as to who was speaking what or admitting a particular fact before the Punches. Thus, the basic evidence about the holding of the Panchayati and the confession of the appellant regarding the 9 commission of the offence could have come from the four Punches above named. None of them has been examined and as such the story that the appellant had confessed his indulgence in the offence and on that account a decision was taken by the Punches to direct the appellant to get himself married to the prosecutrix appears not substantiated because the primary evidence which could have come from the mouth of the Punches appear not adduced in the trial court and as such the story of marriage and subsequent story which could be emanating from that proceeding appears not established. 11. It is admitted by the witnesses, almost all who were examined during the course of the trial, that about one and half months prior to the lodging of the present case, the father of the present appellant had lodged a case probably of extortion, etc as may appear from P.W.4 Abul Hasan, the father of the prosecutrix himself in paragraph-2. It is also admitted by P.W.4, the father of the prosecutrix and other witnesses, like, P.W.2 her mother P.W.5 and others, like P.W.13 that the father of the prosecutrix and his uncle and others had been remanded to custody and after they had come out of the jail, they got the 10 present prosecution launched through P.W.3. The occurrence had taken place one and half months prior to 07.06.2003. In normal circumstances the court could have accepted the explanation had the Punches been produced to testify on holding of Panchayati and the deliberations which could have occurred during the proceeding of the Panchayati. But, as I have just noted, in absence of the evidence of Panchayati one could be very reluctant to even mention about that aspect of the case. Thus, what is left on account of the non-examination of the Punches on the record is that the delay in lodging the report after one and half months of the incident appears not properly explained. 12. The further curious aspect of the matter was that no lady doctor was requested to examine the lady prosecutrix for submitting a report regarding the fact whether she had been subjected to sex ever at all. The solitary instance of being sexually assaulted is alleged against the present appellant. Had any doctor examined the prosecutrix, then only he could have given evidence that the lady was really a virgin or she was habituated to sex or had been usually habituated to it. The doctors who examined the 11 lady, i.e., P.Ws.9, 10 and 15 have given evidence only on the assessment of her age, they have not touched upon that aspect of the case and as such the court is completely in dark as to what was the state of the private part of the lady. 13. There is the evidence of P.W.6 who was the prosecution witness that there was no whisper of the act which has now been complained of being committed by the appellant on the prosecutrix and the fact of the matter was that the father of the prosecutrix wanted to get her married to the present appellant which was not agreeable and as such the case was lodged. The witnesses who were coming out in support of the prosecution story on account of hearsay, and even the prosecutrix herself, were telling the trial court that she ought not have filed the case had the present appellant taken her to his house after accepting her as his wife. These are some of the circumstances which could go to any length to raise a probability as appeared from the evidence of P.W.6 Abudl Hasan. There might be a probability that it could have been a tactics adopted by the prosecutrix or her father to lodge a case against the appellant so as to putting criminal pressure to succumb to the designs of 12 her father who appears desirous of getting her married to the present appellant. 14. Having regard to the above discussions and the circumstances which appear from the evidence, I am of the view that it was a case in which the appellant deserved to be acquitted after being extended the benefit of doubt. Accordingly, the appeal is allowed. The appellant is acquitted after being given benefit of doubt by setting aside the order of conviction and sentence passed upon him. The appellant is in custody. He shall be released forthwith, if not wanted in any other case. Patna High Court, Dated the 17th day of August, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)