Criminal Appeal (SJ) No.189 of 1997 Against the judgment and order dated 27.05.1997 passed by Sri Shyam Badan Singh, 3rd Additional District & Sessions Judge, Siwan in Sessions Trial No. 570 of 1996. Tuna Mina @ Ful Mohammad Mian, Son of Mohammad Sahid, resident of village – Dindayalpur, P.S. – G. B. Nagar, District – Siwan. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. --------------- For the Appellant : Mr. Arun Kumar Tripathi, Amicus Curiae. For the Respondent : Mr. Sujit Kumar Singh, A.P.P. --------------- P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the amicus curiae and learned counsel for the State. 2. The appellant has been convicted under Section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and further sentenced to pay a fine of Rs.10,000/- and in default in payment of fine, to undergo rigorous imprisonment for further two years. 3. The prosecution case as alleged by the informant is that on 2.3.1995 the prosecutrix has come to her father’s place at village Dindayalpur on the occasion of marriage of her sister. She had come 2 along with her three years old daughter. It is alleged that she went inside the house and when she came out she found her daughter the victim girl missing. On the following morning the victim girl was brought by the mother of Bishwanath Choudhary at about 4:00 A.M and stated that the victim girl had been made over to her by the mother Tunna Mian, the accused of the present case. However, after some time the girl was found restless and her mother when looked her private parts, it was noticed that the private part of the victim was found swollen and then the girl was referred for examination by a board of doctors and on the fardbeyan of the informant the FIR was lodged, investigation proceeded and charge-sheet was submitted and on the charge-sheet cognizance was taken and the case was committed to the court of Sessions and after considering the oral and documentary evidence the order of conviction and sentence recorded as stated above. 4. However, the victim girl is unable to disclose anything about the occurrence and in the fardbeyan it has been stated that the mother was saying that the mother of Tunna Mian had handed over the victim girl to her. 5. P.W. 1, Lalmati Devi is the wife of Bishwanath Chaudhary who took the victim girl to her mother saying that the mother of Tunna Mian had handed over the victim girl to her. 6. P.W. 6 is the lady doctor who has stated that labia majora 3 swollen and opined that there were sign of sexual assault present and she has admitted that the injuries may be caused by the means other than sexual assault. However, there is no eye witness of the occurrence and only evidence that the girl was found missing at 4:00 A.M. on the following date on 09.02.1998 when the informant reached her father’s place. However, the evidence of P.W. 2 though in para 1 is that Tunna Mian picked up the girl in his lap and carried her while she was playing but in para 4 of the evidence she stated that she did not see Tunna Mian carrying away the girl and hence the evidence of P.W. 2 about the implication of Tunna Mian suffers from the infirmities and there is no direct evidence against the appellant about his implication and hence the matter hinges on the circumstantial evidence. However, taking into consideration the evidence and the chain of the circumstances not complete pointing towards the guilt of the accused in all probabilities and hence the prosecution has not been able to prove the charges leveled against the appellant beyond all reasonable doubts and hence the judgment and order of conviction and sentence recorded against the appellant is hereby set aside and the appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 18th July, 2011. N.A.F.R./Kundan.