CRIMINAL APPEAL No.690 OF 2004 WITH CR. APPEAL NO.734 OF 2004. ------ Against the judgment and orderdated 21st September, 2004 and 23rd Sept. 2004 in S.Tr. No. 34 of 2004/ 155 of 2002, passed by Additional Sessions Judge V, Gaya. -------- Cr. Appeal No.690 of 2004. 1. Goga Mian @ Gonga Mian son of Salem Mian, resident of village Ghugli Tar, P.S. Civil Line, District Gaya. 2. Rajendra Sao, son of Deonarayan Sao, resident of Village Tel Bigha, P.S. Kotwali, District Gaya. --- Appellants (In Cr.Appeal No.690 of 2004. Versus STATE OF BIHAR------------------------------(Respondents) With CR. APP (SJ) No.734 oF 2004 Anuj Rawani son of Chandradeo Rawani, resident of village Main Basti, P.S. Bela, District Gaya.---- Appellant (In Cr. Appeal No.734 of 2004. Versus STATE OF BIHAR-------------------------------------------------- (Respondents) P R E S E N T THE HON’BLE JUSTICE SMT. ANJANA PRAKASH -------- For the Appellants : M/S F.A. Khan with Md. Sufiyan, Advocates. For the State : Mr. S.N. Pd., A.P.P. Anjana Prakash, J In both the appeals the appellants have been convicted for the offence under section 376 (2) (g) of the Indian Penal Code and sentenced to undergo R.I. for 10 years by the 5th Additional Sessions Judge, Gaya in Sessions Trial No.34 of 2004/ 155 of 2002 vide judgment dated 21st Septmber, 2004. During the pendency of the appeal appellant no.2, Bilash Rabidas son of Durga Rabidas of Cr. Appeal - 2 - No. 734 of 2004 died, so the appeal abated on his behalf. The case of the prosecution, according to one Reeta Khediya resident of Assam, is that on 21.03.2001, some Army personnel raped her in the train and leaving her at Gaya Railway Station, they vanished. Thereafter she was raped by the present four appellants and when she was going on a Rickshaw along with the two accused persons, the police intercepted them and then she reported the matter to the police. Upon this report a First Information Report was instituted against the present four appellants and charge-sheet was submitted and they were charged for the offence under section 376(2) (g) of the Indian Penal Code. The prosecution to prove its case, examined six witnesses, out of whom P.W.1, Havildar Barun Kumar, P.W. 2 constable Lalmuni Prasad, P.W. 3 constable Vijay Ram and P.W. 5, Ram Kumar, are the police personnel, member of the Task Force who are said to have intercepted the accused persons and the prosecutrix. P.W. 4, Nita Agrawal is the doctor who examined the prosecutrix having been forwarded by the Investigating Officer. P.W. 6 is the Investigating Officer. Apart from the oral evidence certain documents have been marked as exhibits and also material witnesses. P.W. 1 Havildar Barun Kumar stated in his - 3 - evidence on 21.03.2001 that he being a Havildar of the Task Force in Gaya had intercepted the four accused persons and the prosecutrix around 8.15 P.M where he was informed by the prosecutrix that four accused persons sitting along with her had committed rape upon her. Upon this information he apprehended the four accused persons and brought them to Civil Lines Police Station. P.W. 2, Constable Lalmuni Prasad, is also a member of the Task Force who along with Havildar Barun Kumar, P.W. 1, had intercepted the accused persons and the prosecutrix and arrested the accused persons upon the information of rape by the prosecutrix. P.W. 3, constable Vijay Ram, also being the member of Task Force and in patrolling duty along with P.Ws. 1 and 2 had intercepted the girl who was flanked by two accused persons and arrested four accused on information by the prosecutrix that rape had been committed upon her. P.W. 5 constable Ram Kumar also was a member of the Task Force and he along with P.Ws. 1, 2 and 3 stopped the prosecutrix and on query being informed that she was raped by the four accused persons they had arrested the present four appellants and sent the prosecutrix for medical examination. P.W. 4, Dr. Nita Agrawal, stated that she, while being posted in Lady Elgin Hospital, Gaya, had examined the prosecutrix but did not find any violence in her private part and no foreign hair on - 4 - her person was found. However, she stated that the girl in question was between 17-19 years and was habituated to sexual intercourse and there was evidence of recent sexual intercourse on her person. P.W. 6 is the Investigating Officer who has given the details of the investigation. On perusing evidence I find that P.Ws. 1.2. 3 and 5 have given hearsay account about factum of rape. Importantly the prosecutrix has not been examined by the prosecution. In the absence of the prosecutrix examination the evidence of P.Ws. 1,2, 3 and 5 cannot come to the aid of the prosecution and by no stretch of imagination can it be said that the prosecution had proved its case beyond all reasonable doubts which is the requirement in a criminal case. In view of the major lacuna in the prosecution case and total absence of material which would sustain conviction for the offence under section 376 of the Indian Penal Code, this Court is of the view that the appellants deserve to be acquitted. In the result, the appeals are allowed and the conviction and sentence is set aside. The appellant, Rajendra Sao of Cr. Appeal No.690 of 2004 is still in custody. He shall be released forthwith, if he is not wanted in any other case. Patna High Court Patna Dated 26th Oct. 2009/ ( Anjana Prakash, J ) - 5 - BTiwary/