Criminal Appeal (SJ) No.213 of 2007 Against the judgment of conviction dated 08.02.2007 and order of sentence dated 09.02.2007 passed by Additional District & Sessions Judge, Fast Track Court No.V, Aurangabad in Sessions Trial No.278 of 1990/334 of 2006 arising out of Baroon P.S.Case No.107 of 1989, G.R.Case No.999 of 1989. RAM BILAS SINGH.... .... APPELLANT VERSUS STATE OF BIHAR.... .... RESPONDENT For the Appellant: Sri Rana Pratap Singh, Senior Advocate. Sri Sunil Kumar Sharma, Advocate. For the Respondent : 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 was tried in Sessions Trial No.278 of 1990/334 of 2006 by being charged under Section 376 IPC and by the judgment dated 08.02.2007 was found guilty of committing the above offence. After being heard on sentence, the appellant was directed to suffer rigorous imprisonment for five years. The appellant has preferred the present appeal questioning the correctness of the findings and propriety of the sentence recorded and passed against him. 2 2. The prosecution case is contained in the fardbeyan(Ext-4) of P.W.8 Sumitra Devi who alleged that in the night intervening 15-16th of June, 1989 she was sleeping in the house of P.W.4 Sona Kuwar due to the absence of her male family members who had gone out in search of her Dewar who had earlier been threatened on that day by the appellant. It is stated that the appellant came to the house of P.W.4, knocked at the door and asked to open it else he will break the door and enter into the room. It is stated that the door was opened by P.W.4. The appellant enquired from P.W.4 as to why, in spite of his objections, she had allowed P.W.8 to sleep inside her house and then dragged P.W.8 from the house of P.W.4 to the own house of P.W.8 where he closed the doors and committed rape upon her. 3. On the basis of the fardbeyan, the FIR of the case, Ext-5, was drawn up and the same was investigated into by P.W.12 S.I. Surya Narayan Lal Das who inspected the place of occurrence and recorded the statement of witnesses, sent the victim P.W.8 to the doctor for examination and after finding materials sufficient, sent the appellant up for trial. 4. The defence of the appellant was of 3 false implication on account of previous enmity which was admitted by the witnesses as also by the prosecutrix. Besides, during the examination of P.W.8, it was suggested to her that she was a lady of easy virtue, having relationship with other persons and had even conceived an illegitimate child for which she had consulted a doctor to terminate the illegal pregnancy and on account of enmity she had falsely implicated the appellant who was the selected Mukhiya on the day of the occurrence. 5. Twelve witnesses were examined by the prosecution. Except P.W.8, there is no evidence directly on the point of commission of the offence. P.W.4 Sona Kuwar has given evidence on facts that the appellant came to her house knocked at the door and asked either to open the door or else he would break the door upon and enter into the house. The doors were opened by P.W.4. The appellant thereafter caught hold of the victim P.W.8 and dragged her from the house of P.W.4 to the house of P.W.8 where she was raped. Other witnesses than P.Ws.4 and 7 except P.W.2 are witnesses who have heard about the commission of occurrence either from P.W.8 or P.W.4 on account of having reached the house of 4 P.W.8 after hearing hullah. They have stated that they found Sumitra Devi(P.W.8)weeping there. And they have also stated that she stated to them that she has been sexually assaulted by the present appellant. However, the father-in-law of the victim and other family members have not been examined in the case to say that they were absent from the house in that particular night and that the lady was all alone there. It has been admitted by P.W.8 Sumitra Devi in paragraphs-13 and 15 that there was a dispute in between the prosecutrix and the present appellant in respect of a drainage which was passing in between there houses. She has further stated that only seven days prior to the occurrence a quarrel had taken place for the above subject matter. In addition to the above, she has admitted in paragraph-15 that she had earlier filed a case of extortion against the present appellant. P.W.8 has given a description of occurrence in paragraph-23 in which she has stated that she was made naked by removing her saree and petticoat, both clothes were put under her head and thereafter she was ravished by the appellant. P.W.8 has stated that the appellant was committing the offence with force and on that account injuries were caused to 5 her breasts and blood had fallen on her clothes and also on the ground which had been seen by the police as may appear from her evidence in paragraph-24. However, when it comes to the evidence of P.W.12, the Investigating Officer of the case he stated that he did not find any mark of blood on the cot or anywhere on the surface of the house or even on the saree or petticoat of P.W.8. Thus, what appears from the evidence of P.W.8 and P.W.12 is that the story as told by P.W.8 could not be accepted in the light of non finding of the blood by the investigating officer either on her clothes or any where either on the cot or on the floor of the room. Not only that witnesses specially P.W.4 and P.W.7 have stated that P.W.8 was picked up by the appellant and was dragged out of the house of P.W. 4 by the appellant to be taken into her own house. This evidence has come in paragraphs-8 and 29 of the evidence of P.Ws. 4 and 7 and it was rightly submitted that if the manner of occurrence could be accepted then ordinarily the evidence of doctor could have indicated the finding of some semblance of injuries on the person of P.W.8 on account of the witness being dragged out of the house of P.W.4 so as to be taken into her own 6 house. Besides, the manner of occurrence as narrated by P.W.8 in which she stated some injuries being caused to her gets falsified when the court considers the evidence of the doctor who was examined as P.W.11 who did not find any injury either on the external or internal parts of the body of the prosecutrix. The doctor also did not find any injury or blood any where at the body of the prosecutrix and she was not certain about the commission of rape upon P.W.8. In fact P.W.11 stated that there was no injury on her private part though the evidence of P.W.8 in paragraph-24 indicates as if some serious injuries could have been caused to her. 6. The witnesses who had come to support the allegations, even as hearsay witnesses, appear related to each other. The evidence of relationship has appeared in the evidence of P.W.1 in paragraph-7, P.W.3 in paragraph-13 and further in the evidence of P.W.4 in paragraphs-8 and 9 which also indicate the grudge P.W.4 was nursing against the appellant. The evidence of these witnesses indicates as if there had been two faction in the village one of which was led by the present appellant whereas the other factions was constituted by the witnesses and 7 others and there was serious enmity due to which litigations were also pending between the parties in different courts and it could be the reason that probably P.W.8 set up and lodged a false case. 7. Considering the aforesaid facts and circumstances, I find that the judgment of conviction which was passed by the trial Judge is not sustainable and, as such, the same is hereby set aside. The conviction is also set aside. The appeal is allowed. The appellant is in custody. He shall be released forthwith, if not wanted in any other case. Patna High Court, Dated, the 10th day of August, 2011, Brajesh Kumar, NAFR ( Dharnidhar Jha,J.)