CRIMINAL APPEAL No.689 OF 2004 WITH CRIMINAL APPEAL NO. 714 OF 2004 ******** ( In the matter of appeals under Section 374 (2) read with Section 389 (1) of the Code of Criminal Procedure against the judgment of conviction dated 14th September, 2004 and order of sentence dated 16th September, 2004 passed by Shri V. S. Pathak, Additional Sessions Judge, Fast Track Court No.V, Kishanganj in Sessions Trial No. 601 of 2003 arising out of Complaint Case No. 795 of 2000) ******** GULMODDIN, SON OF LATE ASRAF ALI, RESIDENT OF VILLAGE HATGAON, POLICE STATION TERRAHGACH, DISTRICT KISHANGANJ …………………………………….APPELLANT (IN CR. APP. NO. 689 OF 2004) WITH MD. HASHIM @ HASHIM, SON OF SK. SAGHIRUDDIN, RESIDENT OF VILLAGE HATGAON, POLICE STATION TERRAHGACH, DISTRICT KISHANGANJ …………………………………….APPELLANT (IN CR. APP. NO. 714 OF 2004) VERSUS THE STATE OF BIHAR …………………… RESPONDENTS (IN BOTH APPEALS) ************* P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan, J. These two appeals arising out of the same judgment are being heard together and are being disposed of by this common order. Gulmoddin, appellant in Criminal 2 Appeal No. 689 of 2004, has remained in custody since 10.07.2003 whereas Md. Hashim @ Hashim, appellant in Criminal Appeal No. 714 of 2004 has remained in custody since 09.09.2002. Both of them have been convicted to undergo rigorous imprisonment for five years for the offences committed under Section 376/34 of the Indian Penal Code and also to pay a fine of Rs. 1,000/- each and in default of payment of fine, further to undergo rigorous imprisonment for three months. That the victim has examined herself as PW 1. She has given rather a graphic description of the entire episode, suffice to say that the description leads this Court to believe that it is absolutely false rather than shocking to the conscious of the Court. As far as Gulmoddin is concerned, there is no specific allegation of rape against him. The reason for the said implication of both the appellants is due to land dispute which has been taken as a specific defence by Hashim in his statement under Section 313 of the Code of Criminal Procedure. In any event, in view of the evidence of PW 1, the prosecutrix, I cannot hold the appellants guilty under Section 376 of the Indian Penal Code. On perusal of the record, I find that the 3 appellant Gulmoddin has remained in custody from 10.07.2003 till 04.01.2006 and the appellant Md. Hashim @ Hashim has remained in custody from 09.09.2002 till today. It is quite possible that the appellant Md. Hashim @ Hashim has already been released from the custody. In any event, this Court does not find the appellants guilty under Section 376 of the Indian Penal Code. The impugned judgment is set aside. Appellant Gulmoddin is discharged from the liabilities of the bail bonds furnished earlier before the Trial Court. The appellant Md. Hashim @ Hashim is directed to be released forthwith if not required in any other case. In the result, these two appeals are allowed. ( Sheema Ali Khan, J. ) Patna High Court April 21, 2009 N.A.F.R./Anand