Criminal Appeal (SJ) No. 760 of 2007 ------- Against the judgment and order of conviction and sentence dated 13.7.2007 and 18.7.2007 passed by Shri Harendra Nath Tiwari, the learned Additional Sessions Judge I, Sitamarhi in S.T. No. 49 of 2004/ 11 of 2004. ---------- Dinesh Sharma alias Dinesh Thakur, son of Ghuran Thakur, resident of – Islampur, Pulice Station – Riga, District – Sitamarhi …………… Appellant Versus The State of Bihar …………… Respondent --------- For the Appellant : Shri Ajay Mishra, Advocate (Amicus Curiae) For the State : Shri S.N. Prasad, A. P. P. --------- P R E S E N T THE HON’BLE SHRI DHARNIDHAR JHA ------- Dharnidhar Jha, J. The solitary appellant was convicted by the learned Ist Additional Sessions Judge, Sitamarhi for committing the offence under sections 376/511 IPC and was directed to suffer RI for four years as also to pay a fine of rupees one thousand else, to suffer RI for three months. The appellant has preferred the present appeal to challenge the findings recorded by the learned trial judge. 2. The prosecution case is based on the fardbeyan of Ram Briksha Thakur (P.W. 4) in which he stated that after hearing the voice of his daughter-in- law (P.W.3) at about 11.30 P.M. on 26.10.2003, he along with his son Ram Swarath Thakur (not examined) as also his wife (P.W. 2), came to his house when he found that the present appellant was scuffling with P.W. 3, who stated to him that the appellant had entered inside her room and attempted to remove her clothes for committing rape upon her, upon which, she caught hold of the appellant and raised a cry. It was stated that all family members of the informant beat up the appellant, otherwise he would have committed rape upon P.W. 3. It is stated in the 2 fardbeyan itself that the chowkidar also came and he along with other persons of the village who had assembled there, informed the Mukhia about the incident whereafter the Mukhia of the panchayat intervened and proposed for a panchayati but, no decision could be taken in the panchayati and, as such, he was making the report after three days of the occurrence on 29.10.2003. After investigation of the case, on the basis of the FIR, the solitary appellant was sent up for trial and that ended in the conviction of the appellant. 3. Five witnesses appear examined by the prosecution out of whom, P.W. 5 Jitendra Jha was a witness of formal nature, who was proving the writings of the formal FIR to be that of Murari Lal Sharma and, as such, the FIR was marked Ext. 2. The other witnesses were the family members of the informant. P.W. 1 Bindeshwar Thakur has admitted that the informant Ram Briksh Thakur (P.W. 4) was his uncle. P.W. 2 Maulat Devi is the wife of the informant. P.W. 3 was the lady whom the appellant is said to have attempted to violate. P.W. 4 was the informant himself. 4. P.W. 3 stated that when she was inside her room, the present appellant entered inside it and attempted to remove her clothes when she woke up and caught the appellant as a result of which there was some scuffle between the two. P.W. 3 started shouting, as a result of which her mother in law, father in law and husband came there along with other villagers. The appellant was caught and kept there when the chowkidar also came. The appellant had received some injuries also on account of being assaulted by the villagers and the witnesses. Panchayati was proposed to be convened by the Mukhia of the panchayat but he went in collusion with the accused and, as such, no decision at the social level could be arrived at and, as such, the case was filed. P.W. 3 has admitted that the present appellant was the son of the elder brother of her husband and used to remain at his house as also away from it. P.W. 3 further stated that she had married second time to the son of the informant and she was married first in her childhood at Mahendra Nagar, Nepal to one Surendra Sharma who is still alive but, she broke the marriage 3 and got herself married to the son of the informant. She has stated that she was brought by one Jogi Thakur to be married in Sitamarhi and he happened to be the Samdhi of her father in law. P.W. 3 has admitted in paragraph 9 of her evidence that the accused had filed a criminal case against her husband and father in law prior to the present incident and that a lantern was burning at the place of occurrence. She stated that the appellant attempted to remove her sari to commit the act and she caught her. 5. P.Ws 1, 2 and 4 have supported the prosecution story by stating that when they heard the cries of the lady, they were attracted to the place of occurrence where the lady (P.W. 3) was all alone and on arriving there they found that a scuffle was going on between the two. 6. P.W. 3 was raising a cry of Chor-Chor and that attracted the persons and the witnesses also and the appellant was caught and assaulted by the villagers. Thus, what appears is that the story that when the informant reached at the scene of the occurrence after hearing the cries, found the appellant grappling with P.W. 3 does not get the support from P.W. 3 in her evidence. P.W. 4 stated that he found his wife raising the cry of Chor-Chor and the appellant was caught there. 7. Incidentally, the defence has brought on record through the very lady (P.W. 3) that the accused had filed a case prior to the present case against the husband of P.W. 3 and others. It appears from Ext. 1, which was brought on record and which is the copy of the FIR lodged on the statement of the present appellant that he had also filed a case for an occurrence of the same date for the offences under sections 323, 448 and 34 IPC. The witnesses have stated that the Mukhia had intervened and assured for settling the dispute in the village itself. If the appellant had really entered inside the house of the informant so as to committing the offence as alleged and as appears admitted by the witnesses that the chowkidar had reached just after the occurrence, there does not appear any reason that the appellant could have been allowed to go from the custody of the witnesses. It is stated by witnesses that the present appellant was tied down and kept for the whole night. The 4 chowkidar must have gone to the police station to report the matter but no police officer appears coming for three days of the occurrence and the case was lodged on the third day, probably, after the appellant had lodged the case vide Ext. A. It is admitted by witnesses that the appellant was assaulted and he was confined also. There might be a probability that in order to create a defence, the lady was prompted to file a case of the nature as was done by her. Moreover, the facts do not constitute the offence under sections 376/511 IPC. I have grave doubt regarding the veracity of the prosecution story on account of delayed lodging of the report for the reasons, which I have just noted and on account of not informing the police and the appellant being allowed to go scot-free if he had committed the act as was alleged. The story, simply, does not inspire confidence and non-examination of the IO also compounds that situation. 8. Accordingly, the appeal is allowed by setting aside the judgment of conviction and sentence. The appellant is acquitted. The appellant Dinesh Sharma alias Dinesh Thakur is in custody and he is directed to be released forthwith if not wanted in any other case. 9. It is indeed sad that in spite of the names appearing in the list, the counsel for the appellants in listed appeals are not appearing. The same happening in the present case, the court had to seek the assistance Shri Ajay Mishra, who readily offered his assistance. Let a fee of hearing be paid to Shri Mishra by the Patna High Court Legal Services Committee. (Dharnidhar Jha, J.) Patna High Court, The 21st September, 2011, NAFR/Anil/