Criminal Appeal (SJ) No.291 OF 1994 [Appeal against the judgment and order dated 7.9.1994 passed by the Additional Sessions Judge I, Gaya in Sessions Trial No.40 of 1990/ 74 of 1992] 1. GENDO PANDIT S/O SRI SHIV DAYAL PANDIT 2. GANESH CHOUDHARY S/O SRI SHIBU CHOUDHARY, BOTH RESIDENTS OF VILLAGE DIHURI, P.S. FATEHPUR, DISTRICT GAYA …………………….. Appellants Versus 1. THE STATE OF BIHAR 2. MINA DEVI WIFE OF KISHORI MALI, RESIDENT OF VILLAGE DIBURI, P.S. FATEHPUR, DISTRICT GAYA ---------------------- Respondents For the Appellants : Mr. Shivanand Pd. Sinha, Advocate Mr. Jayanand, Advocate For the Respondents : Mrs. Indu Bala Pandey, Addl. P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellants have been convicted u/s. 376 I.P.C. and sentenced to R.I. for ten years by a judgment dated 7.9.1994 passed by the Additional Sessions Judge I, Gaya in Sessions Trial No.40 of 1990/ 74 of 1992. According to the Complainant (P.W.4), when she was returning after easing herself, the two appellants and one unknown person committed rape upon her. During trial seven witnesses were examined on behalf of the prosecution. Out of whom, P.W.1, P.W.2 and P.W.3 were declared hostile, whereas the P.W.4 is the prosecutrix herself and P.W.5 is her husband and P.W.6 is formal, who has proved - 2 - the complaint petition and P.W.7 is also formal, who has proved the typing of the complaint petition. In effect therefore the case is based on the sole evidence of P.W.4. To examine her evidence it appears that in her Solemn Affirmation she has stated that all the three accused had committed rape upon her, but during trial she alleged such a fact only about the present two appellants also in her Solemn Affirmation, she stated that rape had been committed when she was returning after easing herself but during trial she stated that rape had been committed when she was going to ease. Since it was a case based on a complaint, there is no objective evidence to support the factum of rape. Moreover it appears that P.W.1 Nathun Dhobi, who had accompanied the complainant to the Court and got the complaint instituted by engaging a lawyer, was actively inimical to appellant Gendo Pandit. Admittedly the documents, which have been brought on record by the appellants, show that there was active animosity between the witnesses and the appellants and the possibility of the prosecutrix having been set up by those persons can not be completely ruled out. Further, since there is no objective evidence with regard to commission of rape, I am inclined to give benefit of doubt to both the appellants under the circumstances. In the result, this appeal is allowed and the order of conviction and sentence passed against the appellants on - 3 - 7.9.1994 passed by the Additional Sessions Judge I, Gaya in Sessions Trial No.40 of 1990/ 74 of 1992 is set aside. The appellants are discharged from the liabilities of their respective bail bonds. Patna High Court Dated, 6th April, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )