Criminal Appeal (SJ) No. 253 OF 1997 Against the judgment and order dated 06.09.1997 passed by Sri Rajendra Kumar Mishra, 2nd Additional Sessions Judge, Muzaffarpur in S.Tr. No. 527/96. ************ 1. Md. Haroon, S/o Late Md. Sharif. 2. Shyam Baitha, S/o Pratap Baitha. Both resident of Village-Sakari, P.S.- Katara, District-Muzaffarpur. ……(Appellants) Versus THE STATE OF BIHAR-------(Respondent) ************* For the Appellants: Sri Narotam Pd. Singh, Adv. : Mr. Ashok Kumar, Adv. For the State : Mr. R.B. Roy “Raman”, APP. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. The appellants have been convicted under Sections 366 and 341 IPC and sentenced to RI for five years and one month SI respectively by the 2nd Additional Sessions Judge, Muzaffarpur in S.Tr. No. 527/96 by a judgment dated 06.09.1997. 2. The case of the prosecutrix, Bina Kumari is that in night about eight days before the institution of the First Information Report on 17.04.1996 when she was sleeping in the house while her mother had gone to the house of her neigbour the accused persons entered her house and they took her to a nearby orchard and thereafter committed rape upon her. She was also threatened to be killed if she informed any body about this incident. When she returned she informed her 2 parents and when they attempted to make a report about the same the co-villagers prevented from doing so therefore there was delay in instituting the case. 3. During trial the prosecution in all examined eleven witnesses out of whom P.W. 11 is the Investigating Officer. P.W. 10 is the Doctor who examined P.W. 7, the prosecutrix. P.W. 2, P.W. 3, P.W. 5 and P.W. 6 are tendered witnesses. P.W. 1, P.W. 4 and P.W. 8 have been declared hostile out of which P.W. 8 is the mother of the victim. P.W. 7 is the prosecutrix herself who supported the fact that she had been taken away but did not support the factum of rape. P.W. 9 is her father who, even though supported the case in the examination-in-chief. In his cross-examination he feigned complete ignorance of the occurrence. The appellants were also charged under Section 376 but they were acquitted of the charges for this reason. 4. On a consideration of the evidence of P.W. 7, one finds that she supported the factum of prosecution story in her examination-in-chief and even identified the appellants in the dock and that they had forcibly carried away restraining her when she was alone in the house and thereafter committed rape upon her but in view of acquittal of the Appellants u/s 376 IPC evidently part of the prosecution case stands demolished. The Doctor, P.W. 10 Md. Mumtaz Ahmad 3 who examined the victim on 18.04.1996 found signs of rape and that the victim was used to sexual intercourse. The evidence of the Doctor that the victim was brutally raped about two weeks back appears to be highly unreliable since it is most improbable that signs of rape would remain even two weeks after the same and is in any view not worthy of consideration since the Appellants have been acquitted u/s 376 IPC. 5. Considering the varying statement of the sole witness i.e. P.W. 7, I am not inclined to uphold the conviction of the appellants. In the result, the appeal is allowed and the judgment dated 06.09.1997 passed by the 2nd Additional Sessions Judge, Muzaffarpur in S.Tr. No. 527/96 is, hereby, set aside. The appellants are acquitted of the charges and discharged of the liability of their bail bonds. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 13th July, 2011. NAFR/Vikash/-