Criminal Appeal (SJ) No.140 of 1997 ****** Against the judgment of conviction and order of sentence dated 25.04.1997 and 28.04.1997 respectively passed by Shri Anil Kumar Verma, Additional Sessions Judge II, Katihar in Sessions Case No. 253 of 1995 / 20 of 1996. ****** Sheikh Mojibul @ Sk. Mujibul, Son of Sk. Ishaque, resident of village – Nayatola Bastiya, P.S. – Azim Nagar, District – Katihar. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. ****** For the Appellant : M/s Faroque Ahmad Khan, Advocates. Rakesh Kumar Sinha, Advocate. Md. Sufiyan, Advocate. For the Respondent : Mr. Sujit Kumar Singh, A.P.P. ****** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. The appellant has been convicted under Section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years. 2. The prosecution case as alleged by the informant is that the daughter of the informant aged about fifteen years was raped by Sheikh Mojibul @ Sk. Mojibul by taking her in jute field when she had gone out to meet the call of nature at 6:00 P.M. in the evening on 29.06.1995. The further case is that Shahanwaz Alam the cousin of the informant saw the occurrence and asked Sheikh Mojibul @ Sk. Mujibul why he is doing the occurrence then Sheikh Mojibul asked to go away else he will 2 be killed. It is further alleged that at a distance of 50-60 feet east-west 7-8 persons including Nuruddin, Sk. Sadique, Sk. Shahanwaz standing on the road armed with Lathi and Danda. Thereafter Sk. Shahanwaz, the brother of the informant came running and informed the informant and made Halla that Sheikh Mojibul was committing rape. Thereafter the informant with co-villager went in Bahiyar but in the meantime the accused person had receded and then informant brought his daughter to his home and then the informant and his wife Noor Jahan enquired from the girl then she disclosed that Sk. Mojibul committed rape then the informant went to the house of Sk. Ishaque the father of the accused to complain but in vain. 3. The further case is that on 30.06.1995 in the morning at about 8:00 A.M. he sent his brother Khabiruddin and daughter Rofat Nissan for filing a case and they went up to village Kanhariya Bandh. Informant along with Sarpanch Tamizuddin came out of their house for going to the police station on by-cycle then Sk. Mojibul (Accused), Sk. Ishahaque father of Mojibul, Sk. Samir, Sk. Hafizuddin brother of Sk. Ishahaque, Sk. Khalique son of Sk. Ishaque, Sk. Sadique son of Sk. Ishaque, Sk. Shahnawaz son of Sk. Samir, Sk. Nuruddin son of Sk. Hafizuddin requested not to go to police station or file a case they will get marriage of the victim Rofat Nissan with Sheikh Mojibul within eight days. It is further alleged that on 02.07.1995 informant proceeded 3 to purchase the articles of the marriage then all the accused persons held a meeting amongst themselves and then Sk. Mojibul disclosed that he will not marry with Rofat Nissan and denied to get marry with Rofat Nissan and the girl learnt and then the girl could not bear the shock and consumed poison and came to the house in drowsy stage and disclosed that Sk. Mujibul has refused to marry so she had taken poison and then died out of poisoning. 4. On the fardbeyan of the informant, FIR was lodged and after investigation charge-sheet was submitted, cognizance was taken and the case was committed to the court of Sessions and after commitment the charge was framed under Sections 376, 201 and 306/34 of the Indian Penal Code against Sheikh Mojibul, the appellant. 5. During the trial sixteen witnesses were examined. They are P.W. 1 Khabiruddin, P.W. 2 Elias, P.W. 3 Mogib @ Mojibur Rahman, P.W. 4 Pramod Viswas, P.W. 5 Surendra Nath Viswas, P.W. 6 Md. Sharif, P.W. 7 Laxmi Narayan Mandal, P.W. 8 Md. Figuddin, P.W. 9 Kaji Mustakh, P.W. 10 Md. Shahanwaz Alam, P.W. 11 Sheikh Dabiruddin the informant, P.W. 12 Jalaluddin, P.W. 13 Noor Jahan, P.W. 14 Sudama Prasad Ram the I.O., P.W. 15 Md. Idrish, P.W. 16 Sk. Tamijuddin. 6. The documentary evidence are Ext. 1 signature on inquest report, Ext. 2 post-mortem report, Ext. 3 inquest report, Ext. 4 fardbeyan of the 4 informant, Ext. 5 carbon copy of the forwarding report of viscera, Ext. 1/1 signature on the inquest report. 7. After considering the oral and documentary evidence the trial court acquitted the appellant of the charges under Section 306 of the Indian Penal Code and convicted the appellant under Section 376 of the Indian Penal Code on the supposition that there is possibility of deceased having been love and intimacy with Sheikh Mojibul and there is principle of voluntary sexual intercourse but since she was sixteen years old and hence the consent is irrelevant and so the accused is guilty. 8. Learned counsel for the appellant, however, contended that there is no evidence of rape except evidence of Md. Shahanwaz Alam P.W. 10 which is not reliable and worthy of confidence and further the prosecution story as disclosed in the fardbeyan that after the occurrence there was Panchayati but the learned lower court has found the story of Panchayati not substantiated and disbelieved. 9. However, the prosecution case as alleged in the fardbeyan is that Md. Shahanwaz Alam saw the victim Sheikh Mojibul committing rape and then he asked Sheikh Mojibul what he is doing then Sheikh Mojibul threatened to go away else he will be killed and then he saw 7- 8 persons named standing there at a distance of 50 feet armed with Lathi and Danda and went away and informed the father of the victim 5 and made Halla and then the father of the victim came to the place of occurrence and took the victim and thereafter the matter was reported to father of accused but no response. However, it is alleged that on the next when they were going to lodge a case they requested not to lodge a case and the marriage would be solemnized so Panchayati held and decided and then refusal to marry causing the death of the victim by poisoning by committing suicide. 10. However, out of sixteen witnesses examined in this case, P.Ws. 2, 5, 6 and 9 have turned hostile and have not supported the prosecution case. P.W. 3 has been tendered, P.W. 14 is the I.O., P.Ws. 15 and 4 is the witness of the inquest report. 11. P.W. 7 is the doctor who has conducted the post-mortem examination on the person of the victim and stated that it was about 48 hours prior to the post-mortem examination at 11:00 A.M on 04.07.1995 and hence the case hinges on the evidence of P.Ws. 8, 10, 11, 12 and 16. 12. P.W. 11 is the father of the victim has stated that Md. Shahanwaz Alam disclosed that Sheikh Mojibul has committed rape on Rafat Nissan and on 30.06.1995 he along with Rafat Nissan and Khabiruddin were going to police station on bullock cart then the accused persons and other came and asked him to return bullock cart as they will arrange in Panchayati the marriage of Sheikh Mojibul with 6 Rafat Nissan and then there was Panchayati and it was decided that the marriage was solemnized within eight days but latter Illiyas and Sk. Mojibul disclosed at 6:00 P.M. that they have refused to marry and then in his cross-examination he has stated that when he went along with Md. Shahanwaz Alam saw his daughter that he did not ask her daughter about rape but she disclosed after coming house to her mother and he did not see injury on her body. 13. P.W. 13 the mother of the victim has stated that Md. Shahanwaz Alam disclosed her about the rape on her daughter. 14. P.W. 1 has also stated that he has not seen the rape and he learnt on Halla. However, stated that Rafat Nissan disclosed that Sk. Mujibul and Shahanwaz Alam have committed rape with her. However, he has stated Md. Salim, Pramukh Viswas, Parmanand Viswas were in the Panchayati. This witness is the brother of the informant and in his further cross-examination has stated that his brother disclosed that Rafat Nissan disclosed that Sk. Mujibul and Shahanwaz Alam son of Master Saheb has committed rape. 15. P.W. 12 though has come to support the prosecution case about the Panchayati and has stated that in the said Panchayati Kaji Musthak Sharif @ Sarpanch, Tamizuddin Sarpanch, Dabruddin, Khabruddin, Shahanwaz, Illiyas, Mojim and others were present and he was a visitor. 7 16. P.W. 8 has also stated that he learnt about the rape from Shahanwas Alam and the victim also told her and in the Panchayati Tamizuddin, Sharif, Kaji Musthak and Praveen Biswas were there. 17. P.W. 16 is Sk. Tamizuddin the brother of the informant and he has stated that on 30.06.1995 Dabaruddin disclosed him about the rape on Rafat Nissan by Sk. Mojibul and at that time Ishak, Samir, Hamizuddin and others came and asked him to Panchayati for marriage and request not to go to file a case. 18. However, from the evidence of P.Ws. 1, 8, 11, 12, 13 and 16 it is apparent that they are not eye-witness to rape and only learnt about the occurrence either from informant or Md. Shahanwaz Alam. None says that the victim disclosed about the rape. P.W. 11 in his evidence has stated that victim did not disclose to him but disclosed to her mother, mother is P.W. 13 who in her evidence did not say that victim disclosed about rape but says that she learnt for statement and hence their evidence hit by hearsay. However, so far the evidence regarding the Panchayati is concerned P.Ws. 1, 11 and 16 has only come to support, who are the full-brothers. 19. The only evidence remains with regard to commission of rape is the evidence of P.W. 10. However, P.W. 10 in his evidence has stated that he saw Sk. Mujibul committing rape in the field of Patua and when he asked what he is doing then he threatened to kill and when the 8 witness receded back then he saw several persons which includes Md. Ishak the father of the victim Md. Khalif, Md. Sadik, Samruddin, Md. Shahanwaz, Haffizudin and Noor Alam there, armed with Lathi then he fled away to the house of Rafat Nissan and disclosed his father Dabrruddin about the rape. However, the evidence of this witness suffers from inherent improbability. The victim is his niece and he saw the rape committed on the victim but he does not make any cry or Halla rather he says that Sk. Mujibul the accused himself threaten to kill which again appears to be highly improbable that a person committing rape having guilty mind will threat to kill the uncle of the victim with whom the rape is being committed in open field and further the prosecution story that when receded back two steps then he saw 6-7 persons at a distance of 50-60 feet and then instead of disclosing about occurrence or making Halla he fled away itself indicates improbable behavior that instead of making Halla will flee away. It is also highly improbable that a man will rape when several persons standing nearby. However, this witness P.W. 10 is the son of P.W. 8 and he has stated that at the time of occurrence both the victim and the appellant were naked and the victim was besmeared with blood but P.W. 11 stated that he did not find blood in any cloth of victim. However, the conduct of P.W. 10 is that he saw the rape but did not make any Halla at the place of occurrence. 9 20. Hence, the evidence of P.W. 10 on factum of rape does not inspire confidence and the evidence of other witnesses about rape is hit by hearsay. The prosecution story of Panchayati also not proved beyond doubt as no independent witness come to support Panchayati. 21. Except P.W. 10 there is no other witness with regard to the rape. The factum of Panchayati having been established as any independent witness of Panchayati has come forward to prove the Panchayati or the decision of the Panchayati and the learned lower court merely on conjecture and surmise take into consideration that the rape was being committed with the consent of the victim aged 15 years. However, there is no cogent, reliable and unimpeachable evidence with regard to rape and the evidence of Md. Shahanwaz Alam suffer from inherent improbabilities and unworthy and the prosecution story in the fardbeyan by the Shahanwaz Alam itself appears to be highly improbable and not worthy of reliance his conduct that instead of making Halla at the place of occurrence, he rushed to the brother of the informant to report the matter and further his evidence that at the place of occurrence while Sk. Mujibul was committing rape when other persons were standing there with Lathi itself appears to be the prosecution story repugnant to normal common sense. 22. Hence, taking into consideration the entire evidence under the facts and circumstances when neither the factum of rape nor the factum 10 of Panchayati having been established the prosecution story has not been able to prove the charges beyond reasonable doubt and hence I give the appellant benefit of doubt and hold that the prosecution has not been able to prove the charges beyond reasonable doubt and hence, the order of conviction and sentence passed by the learned trial court is set aside and I acquit the appellant from the charges leveled against him and the appellant who is on bail, is ordered to be discharged from the liability of bail bond, if any. 23. Hence, the appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 26th August, 2011. N.A.F.R/Kundan.