Criminal Appeal (SJ) No.15 OF 1997 [Appeal against the judgment and order dated 11.12.1996 and 12.12.1996 passed by the 2nd Additional Sessions Judge, Sitamarhi in Sessions Trial No.89 of 1996] Md. Mustafa, son of Abdul Hai, resident of village Barka Gaura, Police Station Nanpur, District Sitamarhi …………………….. Appellant Versus The State of Bihar ………….. Respondent For the Appellant : Mr. Rajesh Kumar Singh, Advocate Mr. Rana Pratap Singh, Advocate For the Respondent : Mrs. Indu Bala Pandey, Addl. P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellant has been convicted u/s.376 I.P.C. and sentenced to R.I. for seven years as also a fine of Rs.5,000/- and in default of which further R.I. for one year by a judgment dated 11.12.1996 and 12.12.1996 passed by the 2nd Additional Sessions Judge, Sitamarhi in Sessions Trial No.89 of 1996. 2. The case of the prosecution according to the prosecutrix (P.W.4) is that the appellant entered into her house on the night of 7.11.1995 and forcibly committed rape upon her. After the act was done she raised a hulla, at which P.W.3 (mother-in- law) and others came running and saw the appellant fleeing away. 3. During trial, the prosecution has examined six witnesses. Out of whom, P.W.1 and P.W.2 are the neighbours whereas P.W.3 is the mother-in-law of the prosecutrix and P.W.4 is the prosecutrix herself. P.W.5 is the doctor and P.W.6 is the Investigating Officer. When P.W.3, the mother-in-law of the 2 prosecutrix, was examined during trial, she stated that on the fateful day she suddenly woke up on some strange noise of her daughter-in-law and then she saw the appellant committing rape upon her. She left the place and went to call P.W.1 and P.W.2 and when they returned they saw the appellant fleeing away from the place of occurrence. The next day a Panchayati was held in which the appellant was fined a sum of Rs.10,000/-, but he refused to pay the same, so three days later the present case was instituted. In her cross-examination she stated that her son used to work in Delhi and had not come to the villager since 5-6 months. She also stated that she had identified the appellant fleeing away from the place of occurrence thus falsifying her previous statement that she had seen the appellant committing rape upon her. The Investigating Officer has been examined as P.W.6, who while describing the place of occurrence stated that the prosecutrix used to live in a one room hutment which had no door and next to it were two other rooms which had bamboo doors but the same were in possession of the mother-in-law. He also stated that the appellant used to live about 5-10 yards away from the house of the prosecutrix. 4. On going through the evidence of P.W.1 and P.W.2, I find that they have stated that P.W.3 had come to call them saying that the appellant had entered into the house of her daughter-in- law and when they returned there they saw the appellant fleeing away. From their evidence the conduct of P.W.3, the mother-in- law, appears to be very strange that instead of raising a cry on 3 seeing the appellant while committing rape upon her daughter-in- law she did not raise any hulla and instead went to call P.W.1 and P.W.2. Even if P.W.4, who was a girl of young age, was afraid of the appellant it does not stand to reason why the mother-in-law P.W.3 also would be similarly afraid of the appellant. The natural reaction of a person would be to shout and scream to prevent the act instead of which P.W.3 went to inform P.W.1 and P.W.2 that the appellant had been seen going inside the house. This gives rise to suspicion as to whether the act committed was an act of consent between the two. The suspicion further deepens in the background of the evidence of the doctor who found the prosecutrix pregnant of about three and half months even while her husband used to live in Delhi and not visited her since the last five months as conceded by the witnesses. 5. In the result, giving benefit of doubt to the appellant the appeal is allowed and the order of conviction and sentence passed against the appellant on 11.12.1996 and 12.12.1996 by the 2nd Additional Sessions Judge, Sitamarhi in Sessions Trial No.89 of 1996 is set aside. The appellant is discharged from the liability of his bail bonds. Patna High Court Dated, 30th June, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )