Criminal Appeal (SJ) No. 351 of 2008 -------- Against the Judgment and order dated 7.2.2008 and 8.2.2008 passed by Shri Jagbir Kumar Katiar, Additional Sessions Judge, FTC II, Gaya in S.T. No. 110 of 2006. ------- Vikram Paswan, son of Sri Ramdev Paswan, resident of village – Parsonda, P.S. – Guraru, District – Gaya ……………… Appellant Versus The State of Bihar …………….. Respondent -------- For the Appellant : Shri Birendra Kumar, Advocate For the State : Shri Ajay Mishra, APP -------- P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA --------- Dharnidhar Jha, J. The solitary appellant was tried by the learned Presiding Officer, Fast Track Court II, Gaya by being charged under sections 366(A) and 376 IPC in S.T. No. 110 of 2006. By judgment dated 7.2.2008 the learned trial judge found the appellant guilty of committing the offences and after hearing him on 8.2.2008 under section 235 Cr.P.C. directed him to suffer RI for ten years under each of the two counts. The sentences were directed to run concurrently. 2. Lalita Devi (P.W. 9) lodged a written report (Ext. 1) with the police alleging that this appellant had enticed her daughter Pinki Kumari (P.W. 10) away along with her son Ankush Kumar for subjecting her to illicit intercourse. The written report (Ext.1) was scribed by Kailash Prasad, who was the Mukhia of the Grampanchayat, on the basis of which FIR was drawn up and investigation was taken up by SI Jai Prakash, who recovered the lady and sent her to a doctor for medical examination and the report (Ext. 4) was obtained. P.W. 10 was also produced before a magistrate for recording her 2 statement under section 164 Cr.P.C. and this is how statement of the victim was recorded. Finding materials sufficient, the appellant was sent up for trial, which ended in the impugned judgment. 3. A total number of 12 witnesses were examined out of whom P.Ws 1, 2, 3, 4, 5 and 6 stated that they learnt in the village that the appellant had enticed away the daughter of P.W. 9 along with the younger son of the informant and subsequently, the lady was recovered. P.W. 10 Pinki Kumari has stated that while she was coming back from her Nanihal, this appellant met her at a particular place and asked her to accompany him and had also gone to his house. It is not denied that the place of occurrence is the same village of the victim and the appellant. It is stated that the appellant hired a three-wheeler and took her to Gaya and from there to Dhanbad and to different places. She was taken to Dhanbad by train from Gaya where the appellant and the victim are said to have boarded the train. The victim P.W.10 stated that she was forcibly raped by the appellant at different places and whenever she wanted to raise an alarm or to shout, she was threatened or beaten up by the appellant. It was further stated by P.W. 10 that when her brother Ankush Kumar raised a cry, his hands and feet were tied and was put on the railway track when the people of surrounding area found the child crying and were attracted to the track from where Ankush was picked up and handed over to the police. The I.O. does not speak even a word as regards the story of Ankush being found on the railway track by the villagers and being handed over to the police. None of the villagers, who could have picked up Ankush, came forward to support the story. Even Ankush was not examined to support any part of the story told by P.W. 10. 4. It was contended by drawing the attention of the court that the medical report (Ext. 4) indicated that the victim was found aged 16-17 years and there could be additional margin of one year in the age assessed by the doctor. It was contended that the doctor was not examined but because the 3 prosecution itself had tendered the medical report, as such, the accused had a right to place reliance upon it to argue that the victim was quite a grown up person and she was a willing party in going away from the place where the appellant is said to have met her or may be that she was telling a lie. In that connection, the attention of the court was drawn to different absurdities in the statement of P.W. 10. 5. On consideration of the evidence of P.W. 10, what appears is that while she was being put into a three-wheeler for being transported to Gaya, she was not raising any alarm nor was objecting to the act of being transported to a place where she was not destined to. Not only that, when specific questions were put as to whether she raised any alarm or shouted for help at the crowded Gaya railway station or even in the bogie of the train, she stated that she could not do so as she was frightened by the appellant. That she was taken to Dhanbad appears admitted by P.W. 10. She appears not raising any alarm nor seeking any help of anyone who met her way to Dhanbad for pointing out her plight. 6. The medical report (Ext. 4) indicated that she was aged 16-17 years. She was quite a grown up lady. The circumstance which appears from her evidence indicates as if she were either a willing party or had weaved out a story which was simply not inspiring confidence. 7. The learned judge has referred to a Supreme Court decision to say that even if there was no clinical damage to the private part of the lady, it could still be a case under section 376 IPC. The doctor has not been examined and the report was categorically stating that no sign of rape was found by the doctor as per the document (Ext. 4). If the doctor was not examined, opinion which was contained or expressed in Ext. 4 could not be considered to make out a case which was never available from the attending circumstances of the case. 4 8. In my considered view, it was a case in which the appellant had to be acquitted after being given the benefit of doubt and, accordingly, he is being acquitted of the charges he has been convicted for after being given the benefit of doubt. The appellant is in custody. He shall be released forthwith if not wanted in any other case. (Dharnidhar Jha, J) Patna High Court, Dated the 15th October, 2011, NAFR/Anil/