Criminal Appeal (SJ) No. 224 of 2007 ------- Against the judgment and order of conviction and sentence dated 24.1.2007 and 25.1.2007 passed by Shri Manoj Kumar Verma, Additional Sessions Judge (Fast Track Court No. 1), Purnea. ---------- Dip Narain Yadav, son of late Jag Narain Yadav, resident of village – Haria Tola, Rupauli, P.S. – Janki Nagar, District – Purnea …………… 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 JUSTICE DHARNIDHAR JHA --------- Dharnidhar Jha, J. The solitary appellant challenges the conviction under section 376 IPC recorded by the Additional Sessions judge-cum- Presiding Officer, Fast Track Court – I, Purnea in S.T. No. 568 of 1999/ Trial no. 333 of 2006 by judgment dated 25.1.2007. After hearing the appellant on the quantum of sentence, he has been sentenced to undergo RI for seven years on the above count. 2. The prosecution case is contained in Complaint Case no. 732 of 1997 in which the prosecutrix alleged that while she was in her field on 17.8.1997 at 2 P.M., which was situated near her house, the present appellant came there and after pointing out to her that because 2 she had lodged a case of rape against the appellant, he should do it again with her and, accordingly, felled her and after making her naked, committed rape upon her. 3. The petition of complaint was sent to police under section 156(3) Cr.P.C. for institution of a regular case and, thus, Janki Nagar P.S. Case no. 226 of 1997 was registered and after investigation, the appellant was sent up for trial. 4. The defence of the appellant was that on account of enmity, which was recorded as also because the family members of the prosecutrix (P.W. 5) were attempting to put criminal pressure upon him so that the appellant could relinquish his claim, the false case had been slapped upon him. 5. Five witnesses were examined in support of the charges. Each of the witnesses has admitted that they had some interest with P.W. 4 Jamun Mahto, who was the father in law of the prosecutrix. P.W. 4 has himself admitted that there had been some dispute with the appellant and on that account there were certain cases between the parties, as may appear from the discussion of those cases in paragraph 11 of the judgment passed by the learned trial court. In the above background, what this court is required to do is to scan the evidence on the scale of probability as also with care and caution. 6. P.W. 5, the prosecutrix, while supporting her case, appears making some of the statements, which do not go down well with this Court. If she was really being forced to submit to the carnal desires of the appellant, it was expected that she should have offered 3 some sort of resistance but, neither in the complaint petition nor in her evidence she was stating that she resisted the attempt or the act of the appellant. In the complaint petition, she stated that she was raising an alarm and witnesses were attracted on that account but, in paragraph 12 of her evidence, P.W. 5, the prosecutrix stated that she did not object to the act being committed by the appellant. Not only that, she appears consulting a doctor and getting herself examined, as may appear from paragraph 18 of the evidence of P.W. 5. But, what appears stated by her is that she was prescribed some drugs, which she took. She does not state that the doctor had issued any certificate in support of her charges that she had been raped. Not only that, even if the doctor who could have prescribed some drugs without certifying that there was any signs of rape or injuries, which could have been caused on account of the act of the appellant while putting the prosecutrix down on the ground, the doctor, has not been examined. The I.O. also was not examined. 7. It is admitted by P.W. 5 that there was a piece of land by the side of her house and there was some dispute between the parties and there had been cases also, which admission also appears in the evidence of P.W. 4. P.W. 2 is a witness who admitted that he deposed in favour of P.W. 4 and against the accused persons. Likewise, the other witnesses appear related either to the family of the prosecutrix or to P.W. 2. Not only that, there is a very clear statement appearing in the petition of complaint in paragraph 3 that the prosecutirx had probably filed a case of nature against the appellant prior to filing of the present 4 case. If this could be the background, then, firstly, it is not expected that the appellant could go to commit the act in open field and that too with a lady of the family which was his staunch enemy. This appears quite improbable also that a lady, who was belonging to the family of the enemy of the appellant, would have allowed the appellant even to touch her body without raising any hue and cry. 8. Improbabilities also appear when the lady was telling the trial court as I have noted, in paragraph 12, that she was not resisting the act of the appellant. The lady was the mother of four children on the day of the occurrence. She was aged about 30 years on that date and she was quite grown up to know as to what could be the cost which a woman had to pay if she is subjected to such acts and, especially, when the act is being perpetrated upon her by one of her enemies. The story simply appears improbable and the circumstances come further to enforce that improbability, considering which, in my considered view, the learned trial judge was not justified in recording an order of conviction against the appellant and further in passing order of sentence against him. 9. In the result, the appeal is allowed. The judgment and order of conviction and sentence passed upon the appellant is set aside. The appellant is in custody. He is directed to be released forthwith if not wanted in any other case. 10. Shri Ajay Mishra, learned amicus curiae has assisted this court and he deserves one fee of argument, which is directed to be paid by the Patna High Court Legal Services Committee for which purpose 5 let a copy of the first and the last pages of the judgment be made over to him. (Dharnidhar Jha, J.) Patna High Court, The 17th August, 2011, NAFR/Anil/