Criminal Appeal (SJ) No.508 of 2007 ---- Against the judgment and order of conviction and sentence dated 19.3.2007 and 20.3.2007 passed by Sri Verendra Kumar Srivastava, Ist Additional Sessions Judge, Sasaram, in Sessions Trial No.486/221 of 2005/2006. ---- Kedar Ram..son of Basgit Ram, resident of Village- Pahari, P.S.- Katgahar, District- Rohtas at present Village- Rakasiya, P.S.-Agrer, District-Rohtas. …….. Appellant. Versus The State Of Bihar …… Respondent. ---- For the Appellant: Mr.Bimal Kumar, Advocate. For the Respondent: Mr.Ajay Mishra, A.P.P. P R E S E N T ------ THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA ------- Dharnidhar Jha,J. The present appeal is directed against the Judgment dated 19.3.2007 passed by the learned Ist Additional Sessions Judge, Rohtas at Sasaram, in Sessions Trial No.486/221 of 2005/2006 by which the solitary appellant, Kedar Ram, was held guilty of offence under Section 376 of Indian Penal Code and by order of sentence dated 20.3.2007 he was directed to suffer rigorous imprisonment for ten years as also to pay a fine of Rs.10,000/- else to suffer rigorous imprisonment for further period of one year. 2. P.W.3, Nathun Ram lodged the report alleging that on 21.5.2005 at about 3.30 A.M. he picked up the sound as if a man 2 were inside his house where his wife was sleeping. He went inside it and found the present appellant comfortably sitting there and the wife of P.W.3, Nathun Ram, P.W.4, namely, Usha Devi, who was deaf and dumb, stated that she had been sexually assaulted by the present appellant. P.W.3 clung to the waist of the present appellant and raised halla. People were attracted to the place of occurrence and thereafter, they also came to know about the incident. 3. On the basis of Ext.2, fard beyan of P.W.3, the F. I. R. of the case was registered and investigation was taken up during the course of which P.W.4, the victim of the occurrence was sent for examination by P.W.5, Dr. Jaishree Chandra, who did not find any external or internal injury on the person of the victim including her private part and was not sure that any rape had been committed upon the victim. However, witnesses, like, P.Ws.1,2 and 3 were supporting the charge before the police, as such, the police sent up the appellant for trial which ended in conviction of the appellant. 4. By referring to different evidence available on the lower court record it was suggested by the defence that it had come that appellant being an outsider settled in village as successor to the property of father-in-law, who was the uncle of the informant who 3 wanted to grab the property. As such, he became a sore in the eyes of the informant who was the nephew of the father-in-law of the appellant and as such was being victimized by being saddled with serious charge. It has been submitted that earlier to the present case also attempts were made by the prosecution party to commit criminal acts with the appellant for which he filed a case earlier to this case. 5. During the course of trial six witnesses were examined out of whom P.W.6 was the Investigating Officer of the case, namely, S.I. Kamleshwar Mishra. In addition to the above as also besides P.W.5 Dr. Jaishree Chandra, four witnesses appear to have supported all the charges who were family members related to each other. P.W.3, the informant of the case, admitted that Falgun Ram is his father. Musafir Ram was the son of Falgu Ram and as such he was full brother of the informant. P.W.2, Madan Ram has admitted in paragraph 3 of his deposition, was related to him as nephew. This is also admitted by P.Ws. 1 and 2 that prior to the present case the appellant, Kedar Ram, filed a case against Musafir Ram and Madan Ram and both of them had remained in jail for some period. In this backdrop of relatedness of the witnesses and enmity, this Court has been called upon to examine the propriety and correctness of the 4 judgment of conviction. 6. I have already indicated that when the informant entered into the room as stated in fardbeyan, he found the appellant sitting there comfortably. If a man had entered illegally into somebody’s house by which the privacy of the inmates of the house may be encroached upon so as to committing a heinous offence like violating a lady, he cannot sit comfortably when the victim to narrate the facts to others. As appears from the evidence of P.Ws. 1 and 3 the appellant was the son-in law of the uncle of the informant and P.W.1. It is not denied, rather is admitted that the appellant was residing in the house of his father-in-law which was situated contiguous to the house in which occurrence is said to have taken place. It is common experience that the attitude of rural people is always not to allow outsider to succeed to the property of their ancesters and make all attempts to get back the property which could be inherited by their relatives. It has come in the evidence of P.Ws.1 and 2 in paragraphs 4 and 3, respectively, that the appellant had filed a criminal case much before the institution of the present case against the informant and others, like, the two witnesses, P.Ws.1 and 2, who also stated that on being attracted to the scene of occurrence on 5 account of halla which was emerging from the house of the informant, they reached there and by signal the victim P.W.3 had indicated to them as well as that this appellant had ravished her. They had a purpose, besides strong motive due to certain anguish with the appellant for implicating him as the case was filed by the appellant in which P.W.2 had to remain in custody for some period of time. The appellant was a sore in the eyes of P.W.2 on account of being successor of the properties of his ancestors. 6. The support of prosecution case does not appear coming from the evidence of P.W. 5, Dr.Jayshri Chandra. The offence of rape was committed in the wee hours of 21/22.5.2005, to be exact at 3.30 A.M. The victim was examined by P.W.5 Dr. Jayshri Chandra on 22.5.2005 at 1.30 P.M. There is no evidence of any witness that she had changed her cloth and washed herself so as to eliminating the sign or stain which might have been left on account of commission of rape. For medical examination swab was taken out from her vaginal canal but no spermetozwa was found. I have already noted that there was no external or internal injury found by P.W.5. It was not a delayed examination. It was almost in time but in spite of that there was no sign of intercourse found by P.W.5. The evidence 6 of P.W.5, thus, rules out the possibility that the lady could have been ravished as alleged and that possibility, as I have indicated earlier, was on account of the fact that the appellant was found still sitting comfortably very much inside the house after rape was committed by him and that appears a circumstance detrimental to the prosecution. 8. In the result, the appeal succeeds and the same is hereby allowed. The Judgment of conviction and sentence passed upon the appellant is hereby set aside. The appellant is in jail. He shall be released forthwith, if not wanted in any other case. Patna High Court, The 11th August,2011, NAFR/AnilKr.Sinha (Dharnidhar Jha,J.)