Criminal Appeal (SJ) No. 9 of 2007 -------- Against the judgment and order of conviction and sentenced dated 30.11.2006 and 5.12.2006 passed by Shri Digvijay Singh, Additional Sessions Jude, FTC No. 4, Jamui in S.T. No. 296 of 2006. ----------- Sheo Lakhan Sah, son of late Jaklal Sah, resident of Badhar, P.S. – Jehanabad, District – Jehanabad at present resident of Sikandara Anchal Aamin Quarter, P.S. – Sikandara, District - Jamui ………… Appellant Versus The State of Bihar …………….. Respondent --------- For the Appellant : Shri Ajay Mishra, Advocate Amicus Curiae For the State : Shri S.N. Prasad, A P P --------- P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA ----------- Dharnidhar Jha, J. This appeal questions the propriety and correctness of the judgment of conviction and order of sentence dated 30.11.2006 and 5.12.2006 passed by the learned Additional Sessions Judge-cum- Presiding Officer, Fast Track Court – IV, Jamui in S.T. No. 296 of 2006 convicting the appellant for the offence under sections 376/511 IPC and directing him to suffer rigorous imprisonment for five years. 2. The case of the prosecution is contained in the written statement of P.W. 5, Shambhu Prasad Keshri in which he stated that his eight-years-old-daughter, examined as P.W. 1 in the court, was gagged and taken away by the appellant into a room with an intent to 2 be raped and that the appellant, after undressing the child, was attempting to commit that offence. 3. On the basis of Ext. 2, the FIR of the case (Ext.3) was drawn up and the case was investigated into. During the investigation, the incident was supported by the witnesses and that ended in submission of charge sheet sending the appellant for trial. 4. Seven witnesses were examined by the prosecution, which included the victim child (P.W. 1) and the informant (P.W. 5). Other witness coming forward to support was P.W. 7 Ram Chandra Singh, who was a constable in the Home guard and who stated that after hearing the cries of the girl while he was urinating, he came to the room to find that the present appellant had undressed himself and the child and was attempting to ravish her. Suggestion was given to P.W. 7 by the defence that in fact he was carrying on illicit relationship with the wife of the informant and further because this appellant had submitted a report in the capacity of being Amin, which was adverse to the informant, they had hatched up a story to implicate the appellant. 5. The basic flaw in the prosecution case appears from the evidence of the informant. I have already noted that the case was instituted on the written report. During the course of his evidence, P.W. 5 stated that he, in fact, had not written the report himself or got it dictated, rather, the Officer Incharge of the police station called him to the police station and asked him to put his signature on a plain paper. If this could be so, then it could be extremely hazardous to 3 believe that anything had really happened for which any report had been made. This is the first infirmity the court finds in the evidence of the prosecution. The other infirmity is that except P.W.7, a Home Guard, none was coming to support the incident. Out of seven witnesses produced by the prosecution, all were coming to say that either they had not seen the occurrence or merely heard about it. Besides, evidence of P.W. 1 could not be easily acceptable as she was aged about eight years on the day she was examined. The questions which were put to her to test her capacity to retain facts as also to reproduce them and answers to those questions appear not such which could, in fact, indicate that she had the developed faculty of retention to say before the court which could be relied as evidence. Moreover, there is variance in the statements of P.W. 1 with his evidence in Court. P.W. 1 stated that the appellant had called her into the room whereas written report avers that she was gagged and taken into the room, which is also the evidence of P.W. 5, her father when he stated in paragraph 2 that he heard a halla and he went near the block office, where he was told by her daughter that she was gagged and taken away by the appellant. There was no perceptible injury on her person. The I.O. has not stated as to what were the articles recovered from the place of occurrence as P.W. 7 has stated that he took the victim and the appellant before the B.D.O. and as per the evidence of P.W. 7, the appellant was at that time naked at that time. The police must have recovered the clothes of the appellant, which evidence appears completely lacking. It is further indicated that the informant used to 4 borrow money from the appellant and this fact has been admitted by P.W. 1 as also by P.W. 5. Not only that, appellant has also made such statement during his examination under section 313 Cr.P.C. 6. Considering the evidence, which is available on record of the case, what this Court finds is that there is sufficient room for doubting the veracity of the prosecution story itself and there might be the possibility that after tutoring the little girl, the appellant had been dragged into a case so as to be humiliated for any reason, particularly, for having borrowed some money from the informant or for having made a report addressed to him as an Amin. 7. In the result, the judgment and order of conviction and sentence passed against the appellant are set aside and the appellant is acquitted of the charge. The appeal stands allowed. The appellant is in jail. He shall be released from custody forthwith if not wanted in any other case. 8. Shri Ajay Mishra, learned amicus curiae has assisted this court and he deserves one fee of argument, which is directed to be paid by the Patna High Court Legal Services Committee for which purpose let a copy of the first and the last pages of the judgment be made over to him. (Dharnidhar Jha, J.) Patna High Court, The 9th August, 2011, NAFR/Anil/