Criminal Appeal (SJ) No. 1030 OF 2006 Against the judgment and order dated 01.12.2006 passed by Sri H.N. Gupta, Additional Sessions Judge, F.T.C.-V, Hajipur in S.Tr. No. 302/05. ************ Md. Asgar, S/o Md. Gulam Rasul, resident of village Samachak, P.S.-Hajipur Sadar, District- Vaishali. ……(Appellant) Versus THE STATE OF BIHAR-------(Opposite Party) ************* For the Appellant : Mr. Nilesh, Adv. : Mr. Kaushal Kishore, Adv. For the State : Mr. J.K. Singh, APP. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. The appellant has been convicted under Section 376 IPC and sentenced to RI for ten years and a fine of Rs. 5,000/- in default of which RI for one year by the Additional Sessions Judge, F.T.C.-V, Hajipur in S.Tr. No. 302/05 by a judgment dated 01.12.2006. 2. The prosecution case according to P.W. 2, Md. Ajij is that on 09.04.2005 the appellant was caught in his house on which a panchayati was held and the appellant was directed not to commit the same occurrence. However, on 18.04.2005 he attempted to repeat the occurrence. It was further alleged that 4-5 months back the appellant had forcibly committed rape on his daughter on account of which she was pregnant and thereafter he had given some medicines to abort. 2 3. During trial the prosecution in all examined four witnesses out of whom P.W 1 is a hearsay witness. P.W. 2 is the informant and the father of the prosecutrix. P.W. 3 is the prosecutrix herself and P.W. 4 is the Investigating Officer. 4. P.W. 2 the informant has stated that on the night of occurrence he had seen the appellant running away from his house on a hulla having been raised by the prosecutrix. He further alleged that four months back his daughter had aborted when she had been administered some medicines by the appellant. He said in his cross-examination that his daughter was married but did not go to her in-laws house and only four months ago she has gone to in-laws house. P.W. 3 the victim has stated that much before the occurrence the appellant had entered into her house to outrage her modesty and on hulla he fled away and about twenty days ago pancahyati had been held where he had promised that he would not repeat the same despite which he had entered her house. She has however given contradictory statements as to whether the appellant had committed rape upon her or not. She has stated that the appellant had run away after hulla was raised but subsequently stated that she had been raped by the appellant. She is the sole witness on the point of occurrence and there is no further corroboration by way 3 of medical opinion. In view of such unreliable and wavering evidence I am not inclined to accept the prosecution case in its entirety that the appellant had committed rape upon her and at best it could be a case of house trespass. In the result, the appellant is acquitted of the charge under Section 376 IPC but convicted under Section 451 IPC and sentenced to the period already undergone by him during trial. 5. In the result, the appeal is dismissed with the aforesaid modification in conviction and sentence. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 27th June, 2011. NAFR/Vikash/-