1 IN THE HIGH COURT OF JUDICATURE AT PATNA - - - - Criminal Appeal (SJ) No.659 of 2007 - - - - Against the judgment of conviction and order of sentence dated 29.5.2007 and 30.5.2007, respectively, passed by Additional Sessions Judge, Fast Track Court-5, Kishanganj, in Sessions Trial No. 1458 of 2006/ Tr. No. 229 of 2006 - - - - ========================================================== Dharma Saha son of late Kesho Saha, resident of Bahadurganj Gudri Bazar, P.S. Bahadurganj, District Kishanganj. .... .... Appellant Versus The State Of Bihar .... .... Respondent ========================================================== Appearance : For the Appellant : Shri Firoz Ahmad, Advocate For the Respondent : Shri Ajay Mishra, A.P.P. ========================================================== CORAM: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA ORAL JUDGMENT (Per: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA) - - - - The present appeal has been preferred by the solitary appellant to challenge judgment dated 29.5.2007 passed by the learned Additional Sessions Judge-cum- Fast Track Court-V, Kishanganj, in sessions Trial No. 1458 of 2006/ Tr. No. 229 of 2006 by which the appellant was convicted of committing the offences under Sections 342, 379 and 376 of the Indian Penal Code and was directed by order dated 30.5.2007 to suffer rigorous imprisonment for one year each under Sections 342 and 379 and seven years under Section 376 of the Penal Code. The sentences were directed to run concurrently. 2. The fardbeyan( Ext.2) of the prosecutrix was the basis for drawing the F.I.R. of the case in which she stated that she went to Bahadurganj 2 Bazar for getting her ornaments repaired by a Gold Smith. The appellant was running a shop of Gold Smith. When she reached there, she met an old lady and on an enquiry was pointed out by her by signaling towards the shop of the present appellant, telling the lady Sanjari Begum to look to that shop and, accordingly, the lady came to the shop of the appellant and showed her ornaments. The lady, P.W. 5 was asked to sit down and without finalizing the charges for repairing the ornaments, the appellant started its repair. It is alleged that the appellant took enormous time and did not complete the repairing and, lastly, when the lady was pointing out that it was getting late and that the she was to return home, the appellant is said to have caught her hand, took her inside the room and locked it from out side and thereafter he too entered into the room. When she wanted to raise hulla, the appellant threatened her by showing a knife. The lady stated that on account of being frightened, she kept silent and in spite of night having dawned, she was not making any complain to any one, not even to the shop keepers of the neighbourhood. 3. The lady stated that the appellant committed rape upon her and, thereafter, slept with the lady on the same chauki kept inside the room. She also slept there without raising any voice or even making any attempt to escape from there. She stated that the appellant continued indulging in the act for the whole night and after sometimes he offered a new set of clothes to her, put vermilion in her parted hairs and brought her into a hotel room where she was sitting and when she was seen by the people she narrated the whole episode to them. 4. The prosecution examined a total number of eight witnesses, out of whom P.Ws. 1 to 4 were declared hostile while P.W. 5, the victim, 3 supported the prosecution case. P.W. 6 was the father of the victim who stated that his daughter went missing from his house and he went to the Police Station next day when the Officer-in-charge pointed out to him that a girl was present there and if he so desired, he may identify her. Accordingly, he went there and found that his daughter was in the police lock up along with the present appellant. On an inquiry she stated to him about the incident. P.W. 7 Mallika Khatoon is the mother of the victim and she stated that the Officer-in-charge of the Police Station came to her house and pointed out to her and her husband that their daughter was in the police lock up and, accordingly, she went there where the prosecutrix narrated to her the whole incident. She stated that the appellant was also there. P.W. 8 was the Doctor who examined P.W. 5 and she did not find any spermatozoa in the vaginal swab nor any sign of violence or sign of sexual intercourse with the lady was found. 5. From perusal of the prosecution evidence it is apparently clear that the lady had ran away from her house. Thus, the prosecution story that she had gone to Bahadurganj market for getting her ornaments repaired and reached the shop of the appellant, stands disproved. So far as other part of the story is concerned, not only the story is absurd and improbable but also the circumstances indicate inherent infirmities in the same to be acceptable. If the lady had run away, as her parents stated, from her house and if she was found in the company of the present appellant then it could not be said that it could be an act which could be without consent of the lady. Even her evidence indicates that she was taken inside the room by the appellant and the same was closed from inside, the lady slept with the appellant on the same chauki for whole of the night and further that the 4 appellant was putting vermilion in her parted hairs and, thus, was performing his own marriage to her and the lady was keeping silent to all his acts, clearly indicate that the lady was a consenting and willing party. Thus, there does not arise any question that the appellant had forced the lady, who was found aged 18 and 19 years, as may appear from the evidence of P.W. 8 the Doctor, to indulge into the above acts. She was definitely a consenting party. 6. Considering the above facts, I find merit in this appeal and, accordingly, the same is allowed. The judgment of conviction and order of sentence passed upon the appellant are hereby set aside and the appellant is acquitted of the charges for which he was convicted. 7. The appellant is in custody. He shall be released forthwith, if not wanted in any other case. ( Dharnidhar Jha, J.) Patna High Court The 21st September, 2011 Kanth/N.A.F.R.