Criminal Appeal (SJ) No.626 of 2005 Against the judgment of conviction and order of sentence dated 27.10.2005 passed by Additional Sessions Judge, Kishanganj in Sessions Trial No.439 of 2003 arising out of G.R.Case No.597 of 2002. ------- KAILASH SHARMA @ KALSOO SHARMA……………………Appellant Versus STATE OF BIHAR……………………………………………………………Respondent ----- For the appellant:- S/Sri Asoka Jang Bahadur, Md. Anis Akhtar & Arif Siddique, Advocates For the State:- Sri Ajay Mishra, A.P.P. P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The solitary appellant questions his conviction for having committed offences under Sections 366A and 376 IPC which order was passed by the learned Additional Sessions Judge, Kishanganj in Sessions Trial No.439 of 2003 on 27.10.2005. After hearing the appellant on sentence on the same day the learned Additional Sessions Judge directed the appellant to undergo rigorous imprisonment for eight years and ten years respectively under Section 366A and 376 IPC. 2. Informant of the case P.W.9 lodged the report with the police stating that his 14 years old daughter, namely, Chano Kumari disappeared after she had gone to attend to 2 the call of nature and in spite of hectic search made by him and his neighbours, she could not be traced out as a result of which the informant and others retreated to their respective homes. Lastly, the informant could learn that it was this appellant Kalsu Sharma along with other accused persons named in the FIR, like, Bharat Sharma and Dewanand Singh, who had taken his daughter away as they were also found not present in the village. 3. The case was registered and investigation was taken by P.W.12, S.I. Dayanand Bishwash who after completion of the same submitted chargesheet sending up the accused for trial which ultimately ended in the impugned judgment. 4. The defence of the appellant was that he was quite innocent and had falsely been implicated by the father of the victim, thats, the informant (P.W.9) for reasons best known to him and, may be, and on an apriori suspicion. 5. Twelve witnesses were examined by the prosecution in support of the charges. Out of them P.Ws. 1 and 2 were declared hostile whereas P.Ws.3, 4, 5 and 6 were persons who had neither seen the occurrence nor had any 3 personal knowledge about any part of it and appear having learnt about the incident from others. P.W.7 was the mother of the victim. The victim of the offence having been examined as P.W.8. P.W.9 is the informant of the case and father of the victim and the two doctors who had examined the victim, namely, Nalini Kant Prasad and Dr. Sudarshana Chakravorty were examined as P.Ws.10 and 11 respectively. As just pointed out the investigating officer of the case was examined as P.W.12. 6. From the evidence of P.Ws.10 and 11 the two doctors, one of whom Dr. Nalini Kant Prasad was one of the members of the board constituted for the medical examination of the victim P.W.8 as also Dr. Smt. Sudarshana Chakravorty were of the opinion that on examination of the person of P.W.8 no external or internal injuries could be found either by the board or Dr. Chakravorty. The age of the victim appears ascertained by the medical board of which P.W.10 was one of the members and it is indicated from the report and the evidence of P.W.10 that the victim P.W.8 was 14 years of age. As regards the state of the private part of the victim, the medical board mainly adopted 4 the opinion of Dr. Smt. Chakravorty and it was stated by P.W.10, one of the members of the board, that the opinion of Dr. Chakravorty was fully endorsed by them. However, on perusal of the evidence of P.W.11 Dr. Smt. Sudarshana Chakravorty this court finds that she did not find any external or internal injury. She did not even state as to what was the state of hymen or other structure of her private part and whether there was any damage to it or whether there was any recent or ancient signs of the lady being subjected to sexual intercourse. Thus, the evidence of the two doctors is of no assistance as regards the evidence of P.W.8 that she was subjected to sexual intercourse forcibly by the present appellant. 7. However, it is settled principle of law that if the court finds the evidence of the prosecutrix inspiring there could not be any difficulty in basing the conviction of an accused charged with offence under Section 376 IPC. This is where this court is required to examine the evidence of the prosecutrix in the light of her claim that it was this appellant who had perpetrated the offence upon her. 5 8. Informant P.W.9, admittedly, was not an eye witness to any part of the occurrence. So is the case with the mother of the victim P.W.7. Both of them, i.e., the parents of the victim stated that the victim went outside her house in the dead of night to attend to the call of nature and when she did not return a hectic search was made of her by P.Ws.9 and 6 but she could not be traced out and, lastly, on some information-the source whereof has not been disclosed even in evidence—the informant came to know that this appellant and three others had taken away his daughter and further that her daughter came back after five days of the incident and met him at L.R.P.Chowk at Bahadurganj. This has come in evidence of P.W.8, the victim herself, that the place Bahadurganj was at a distance of at least 45 kilometers from her house and she has not stated the description of the place of her confinement. It could very well be imagined that the lady was removed from a place which could be far away from her house and could be at a distance of more than 50 kilometers. The evidence of both of the victim as also of her father, P.W.9, creates a mystery as regards the 6 arrival of the girl. P.W.9 stated as did P.W.8 that he was sitting at L.R.P.Chowk on that particular day when P.W.8 came back and met him. P.W.8 also says that she came to L.R.P.Chowk at Bahadurganj and met P.W.9 who was waiting for her. In that connection she further states that it was her father who had pointed out to her that it was this appellant who had taken her away and who had committed the offence with her. But when one considers the evidence of P.W.9 in paragraph-2 he appears telling the court that the victim had come out of the clutches of this appellant and had come to L.R.P.Chowk and there she stated that it was this appellant who had committed the offence in its entirety. Thus, what this court finds is that the evidences of both P.Ws.8 and 9 are diametrically opposed to each other as regards the appearance of the name of the present appellant in connection with taking away of the victim, wrongfully confining her and thereafter committing rape upon her. This creates a mysterious situation as to how then the appellant was suspected to have committed the offence on the day when the FIR was lodged just the next morning and it was containing the 7 names not only of this appellant but also of two others who were not put on trial. 9. It has already been noted that P.Ws.7 or 9, the parents of the victim, were not the eye witnesses to the occurrence. The victim alleged being taken away by some persons but she was also not knowing their names in spite of remaining in their company for five complete days. It was expected that she should have named the persons who had taken her away and had kept her confined and had subjected her to the offence. But she claims the knowledge of person from her father who in turn claims the knowledge about the perpetrators of the offence from his daughter. The evidence of the two witnesses has created a situation where the whole prosecution claim that the appellant was the real culprit pales into serious doubt. 10. In fact, while considering the evidence of many witnesses including those who had given hearsay account of the occurrence, what appeared was that the witnesses were suspecting the appellant on account of his past conduct. P.W.5 in paragraph-1 has stated that the appellant had a history of making the girls to elope with him. This is the evidence of 8 almost all witnesses, like, P.W.6 in paragraph- 1, P.W.9 in paragraph-5 and the court feels that the above circumstance raised on an apriori suspicion against the appellant that it could be he and he alone, who could have committed the offence. It was a case in which there was a serious doubt about the complicity of the appellant as regards the whole incident. The court below simply fell in error in placing reliance on such vacillating depositions of two witnesses to record a finding of guilt and ultimately sentenced the appellant to terms of imprisonment. I find the judgment of conviction and order of sentence on that account unsustainable in law. The same are hereby set aside. The appeal is allowed. The appellant, Kailash Sharma @ Kalsoo Sharma is in custody. He is directed to be released forthwith, if not wanted in any other case. Patna High Court, Dated, the 25th day of April, 2011, Brajesh Kumar/NAFR. ( Dharnidhar Jha,J.)