Criminal Appeal (SJ) No.269 of 1997 Against the judgment and order dated 30. 08. 1997 and order of sentence dated 01. 09. 1997 passed by Shri Bipin Bihari Verma, Additional Sessions Judge, Supaul, in Sessions Trial No. 34 of 1996. Kula Paswan @ Kula Nand Paswan, son of Bal Kishun Paswan, resident of Village- Tharhi Bhabanipur, P.S. Pipra, District-Supaul. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. For the Appellant. : Mr. Arun, Advocate. Mr. Dhananjay Kumar Upadhyay, Advocate. For the Respondent State : Mr. Parmeshwar Mehta, A.P.P. PRESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted for offence under Section 376 of Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years. 3. The prosecution as alleged in the Fardbeyan that while the informant was sleeping at her verandah and no male member in the house, in the meantime the appellant came and caught hold the hand of the informant and took her inside the house and committed rape on her and when she tried to make hulla then the appellant closed 2 her mouth and after committed rape when appellant tried to flee away then she caught hold the appellant and started hulla and on hulla her Mausi and Nani came and she disclosed her about the occurrence. She has further alleged that on hulla, the brother and father of Kula Paswan came get liberated and assaulted the victim. 4. On the statement of the victim, F.I.R. was lodged and during investigation the victim was medically check up by the Doctor. After investigation, charge sheet submitted. Cognizance was taken and the case was committed to the Court of Sessions. Where charge was framed. 5. During trial, eight witnesses were examined as P.W.1 Asharfi Paswan, P.W. 2, Tejo Paswan, P.W. 3, Durga Nand Paswan, P.W. 4, Nagiya Devi, P.W. 5 Sulen Devi (informant), P.W. 6, Muniya Devi, P.W. Dr. Rita Singh, P.W. 8, Ram Chandra Yadav, A.S.I. 6. Documentary evidence adduced Ext.1 is the examination report of Sulen Devi, Ext. 2 is the F.I.R., Ext. 3 is seizure list, Ext. 4. On considering the oral and documentary evidence order of conviction and sentence recorded. 3 7. Learned counsel for the appellant, however, contends that evidence of the victim itself contradictory and not even a single witness supported the prosecution case and date and time of occurrence has not been mentioned. Hence evidence of this witness is not corroborated the rape and the evidence of the victim does not find any corroboration when the victim is a married woman. 8. Learned counsel for the State however, contends that victim supported the case about rape and no lady herself made false allegation of rape on her future life. 9. P.W. 5 is the victim has stated that in her evidence that while she was sleeping in the verandah then Kula Paswan came and catch hold of her hand and took her in the house and he committed rape on her and when she tried to make hulla her mouth was closed by cloths. Thereafter, she catch hold of him and on hulla father and mother of Kula Paswan came and liberated him. She has further stated that her father is not alive and her mother has got second marriage and she is living with her Nani. 10. However, She was examined by the Doctor 4 in the Hospital. However, in her cross-examination she stated that in the tola there are 60-67 houses. All are Paswan. She further stated that all are accused. Further, she has stated that she was not knowing to the appellant since before the occurrence and she had not seen him in the village. She was got up by catching hold of her arm. She has further stated that appellant was not known to her and was not knowing his name. In para 11 of her cross examination, she has stated that she get up when appellant catch hold of her arm and she remained sitting for an hour and when she get up, the appellant did not disclose anything and when father of the appellant called him, the appellant went away then she hold of him and make hulla and on hulla several villagers were came. It is further stated that when the villagers collected, her Nani and Mausi came. 11. However, P.W. 1 and 3 have been tendered. P.W.2 has been declared hostile and P.W. 4 and 6 are Mausi and Nani. P.W. 6 stated that when she returned then Sulen Devi disclosed. 12. P.W. 7 is the Doctor. However, Doctor opined that there was no sign of violence from her body 5 and there was no vaginal swab shows nor any spermatozoa either living or dead was found. However, her age was assessed to be 16-17 years and she is supposed to be habitual sexual intercourse and no finding about rape on her person, but possibility of rape can not be excluded However, the victim was examined on 17-18th September, 1995 and occurrence alleged to be on 15. 09. 1995. 13. However, under the facts and circumstances, the only question arises, though, victim supported the prosecution case about rape, but there is no corroboration either by medical evidence or any other evidence. Question for consideration whether the corroboration is required to maintain the conviction. 14. However, corroboration in a rape case various decisions available that when asked for corroboration is to add assault to injured. However, in case of a married woman and when the evidence of the victim is fluctuated in such circumstances then in her evidence that she catch hold the appellant and on hulla several people came, but none has come forward to support the prosecution case and evidence of the doctor is not corroborate. 6 15. Having regard to the fact and circumstances, neither any villagers come forward to support the prosecution case nor evidence of the Doctor corroborates the evidence of the victim and hence, in such a situation the appellant is entitled for benefit of doubt hence the prosecution has not been able to prove the charges beyond all reasonable doubt. 16. Hence order of conviction and sentence recorded by the lower court is hereby set aside and the appeal is allowed. Patna High Court, The 28th July, 2011. NAFR/m.p. ( Gopal Prasad, J.)