CRIMINAL APPEAL No.293 OF 2001 Against the judgment and order dated 23.8.2001, passed by 3rd Additional District & Sessions Judge, Buxar in Sessions Trial No. 8 of 1993 BIJAY BAHADUR SINGH @ VIJAY BAHADHUR SINGH, son of late Captain Rajendra Prasad Singh, resident of village- Manohar Basant, P.S.- Basant, District- Chapra (Saran) ----- Appellant Versus THE STATE OF BIHAR ----- Respondent With CR. APP (SJ) No.318 oF 2001 1. PARASH MAHTO, son of Late Bhola Mahto. 2. Bangali Singh @ Devbrat Singh, son of Late Chand Govind Singh Both are residents of village- Sowan, P.S.- Krishna Parhm, District- Buxar ----- Appellant Versus THE STATE OF BIHAR ----- Respondent For the appellant in Cr.Appeal No. 293 of 2001 :- Mr. Chandrashekhar, Sr. Adv. Mr. Braj Nandan Tiwary, Adv. For the Bank in Cr.Appeal No. 293 of 2001 :- Mr. Shivaji Pandey, Sr. Adv. For the appellant in Cr.Appeal No. 318 of 2001 :- None For the State in both the appeals :- Mr. Rajendra Nath Jha, A.P.P. P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN 2 S.A. Khan, J. Criminal Appeal No. 293 of 2001 and Criminal Appeal No. 318 of 2001 are heard together as they arise out of a common judgment dated 23rd August, 2001 passed in Sessions Trial No. 8 of 1993 by the 3rd Additional District & Sessions Judge, Buxar. All the appellants have been convicted under Sections 376 and 452 of the Indian Penal Code to undergo R.I. for 10 years and to pay a fine of Rs. 5000/- to be shared by all convicts equally and in default thereof to undergo further sentence of 2½ years, one fourth of the total period of sentence. The sentences are to run consecutively. No separate sentence was awarded for the charge under Section 452 of the Indian Penal Code. The occurrence is said to have taken place on 12.2.1991 at about 11 p.m. and the First Information Report has been instituted on 18.2.1991. The prosecution case in short is that it is alleged that these appellants entered the house of the informant and after threatening her each of them raped the informant. The informant then left for her parents house on the next day and returned back after seven days to institute the present 3 case. Four witnesses have been examined during the trial. P.W. 4 is the doctor who has examined the victim lady and has not come to any conclusion regarding the factum of rape. P.W. 2 Latai Dusadh and P.W. 3, Lahariya Devi are the neighbours of P.W. 1, have both been declared hostile. This Court will therefore, examine the evidence of the victim Jairun Bibi, P.W. 1. Jairun Bibi has stated in her chief that the appellants were standing outside her house and were using abusive language in the night of 12.2.1991. They were trying to enter her house however, they could not succeed. In the chief she has deviated from her very statement in which she has alleged that the appellants have raped her. P.W. 1 was cross examined during the cross examination, she states that she had gone to her parents home after the occurrence and after returning, she instituted the First Information Report. She also states that she did not disclose that she did not inform her parents regarding the occurrence which had taken place on 12.2.1991. At paragraph 6, this witness has stated that she has entered the compromise with the appellants out of her own free will. She also stated before the 4 Court that she has not persued the case because she is a poor person and has compromised the matter. Counsel appearing on behalf of the state submits that although this witness has been declared hostile it would appear that she has disclosed before the Court the reason for turning hostile which is that she is a poor lady and therefore, she compromised the matter. Learned counsel appearing on behalf of the appellants on the other hand submits that the victim lady has lodged the case after 7 days without giving any explanation for the delay. The fact that she did not disclose about the occurrence to her husband or parents goes to show that in fact no occurrence took place and in order to get some financial benefit she has instituted this false case. The very fact that she has stated before the Court that she is a poor person would also indicate the motive for filing the case. On consideration of the entire facts regarding this case, I find that there could be some justification as offered by the informant for compromising the matter but there can hardly be any justification for instituting the case after 7 5 days. Furthermore, the neighbours or the other persons of the locality who have been named as witnesses have not supported any part of the occurrence. They have also not supported the allegation that the appellants misbehaved or had a bad character. This Court in order to find out the truth also perused the case diary although of course the diary cannot be considered for the purpose of convicting an accused however, even in the diary the husband or the neighbours have not come forward to support the prosecution version. So it appears that in fact there are no heresay witnesses to support the case as made out by the informant. After considering the entire facts, I find that the prosecution has not been able to prove the case of rape under Section 376 of the Indian Penal code or under Section 452 of the Indian Penal Code. The judgment and order of conviction is set aside. The appeal is allowed. The appellants are discharged from the liabilities of their bail bonds. Patna High Court, 30th April, 2009 N.A.F.R./Sanjay (Sheema Ali Khan, J.)