Criminal Appeal (SJ) No.575 of 2005 Against the judgment of conviction and order of sentence dated 16.09.2005 and 21.09.2005 passed by Additional Sessions Judge, Fast Track Court No.II, Rohtas at Sasaram in Sessions Trial No.736 of 2002 arising out of Sheosagar P.S.Case No.84 of 2002. BIKARMA SAH…………………………………………………………………Appellant Versus STATE OF BIHAR………………………………………………………Respondent ---- For the appellant:- Smt. Nutan Sahay, Amicus Curiae For the State:- 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 Bikarma Sah was tried after being charged under Section 376 IPC by Fast Track Court No.II, Rohtas at Sasaram in Sessions Trial No.736 of 2002. By judgment dated 16.09.2005, he was held guilty of committing the offence and by the order of sentence passed on 21.09.2005, the appellant was directed to suffer rigorous imprisonment for ten years as also to pay a fine of Rs.5,000/-, in default of which the appellant had to suffer rigorous imprisonment for further period of six months. Appellant Bikarma Sah has preferred the present appeal to question the above noted judgment and order of sentence. 2. The case is based on the written 2 report of Rishamuni Devi(P.W.6) who happens to be the mother of Guriya, a girl child aged about three years. It was stated by P.W.6 in her written report that a Barat had come at the house of one Dadan Lal for solemnization of the marriage of his daughter and the victim, Guriya went there and could not be traced out. At about 10 P.M. her cries were heard coming from the Darwaja of the informant and lastly, she was found standing bare bodied. 3. When the child woke up on 31st of May, 2002, the informant found that she was weeping and she had difficulty in urinating and there was blood stain around her private part. When she was engaged in house hold cores, it is said, this appellant came there and handed over the frock of the child to her and stated that the child had been injured and as such she should be treated. 4. The informant stated that she narrated the incident to her villagers and Panchayati was also held in which the appellant was adjudicated guilty and thereby she lodged the written report under the firm belief that it was the present appellant who had committed rape upon the child. 3 5. On the basis of the written report of P.W.6 the FIR of the case, Ext-2, was drawn up and the investigation was under taken whereafter the appellant was sent up for trial. 6. During the course of trial, twelve witnesses were examined out of whom P.Ws.7, 8, 9 and 10 were declared hostile. Other witnesses including the informant were not witnesses to any part of the occurrence, even to the fact that the appellant had been seen by any of them taking the three-year-old-child away with him. The doctor who examined the victim of the offence P.W.12, namely, Dr. Sarita Kumari in her evidence stated that she did not find any swelling anywhere on the private parts of the child nor she could detect bleeding per her private part and no scratch or any other mark was also seen there. There was a simple abrasion measuring ½ c.m.x ¼ c.m. with scales seen on her chin. In her evidence, as may appear from paragraph-16 of the judgment, the doctor was finding that the pelvic was normal and there was no foreign particle seen on the private part of the child including her thighs and lower part of abdomen. The hymen was intact and it was very difficult to introduce the tip of little finger 4 in the vagina of the child. Thus, what appeared from the evidence of the doctor was that save and except an abrasion which had also almost healed up, there was no finding giving to rise an inference that any act had been done with the little child so as to supporting the suspicion of the informant that she had been ravished or even an attempt was made in that behalf. 7. After having gone through the evidence of the witnesses including those who came to support the story of the informant as regards the child going missing and re-appearing and further that her frock was handed over by the appellant, there does not appear any linking evidence to raise an inference that anything had been done to the little girl. Even her wearing apparels were not carrying any evidence of rape committed upon her. 8. On consideration of the evidence available on record of the case what this court finds is that it was merely a case of suspicion which was also baseless inasmuch as the child might have received the injury which was recorded by P.W.12 in any other manner than that as alleged. It was a case in which there was no evidence justifying the order of conviction 5 which was passed by the learned trial court and infliction of the sentence as directed by him to be undergone by the present appellant. 9. In the result, the appeal succeeds and the same is allowed. The order of conviction and the sentence passed upon the appellant, are hereby set aside. He is acquitted of the charge. It appears that the appellant, Bikarma Sah is in custody. He is directed to be released forthwith, if not wanted in any other case. 10. This court records its deep appreciation of the assistance which it got from Smt. Nutan Sahay, else this appeal won’t have been disposed of. Smt. Sahay shall be entitled to a fee of hearing which could be paid to her by the High Court Legal Services Committee and for that purpose let the first and last pages of this judgment be made over to her. Patna High Court, Dated, the 26th day of April, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)