IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (DB) No.1271 of 2010 ASHA DEVI, W/O ASHESWAR SHAFI, RESIDENT OF VILLAGE – KARHARA, P.S. BENIPATTI, DISTRICT – MADHUBANI. ……. PETITIONER. Versus 1. THE STATE OF BIHAR. 2. KISHORI RAM SON OF LATE BATHU RAM 3. DUKH MOCHAN RAM SON OF LATE MANJHI RAM BOTH RESIDENTS OF VILLAGE – KANHARA CHAMARTOLI, P.S. BENIPATTI, DISTRICT – MADHUBANI. …… RESPONDENTS. ----------- 02/ 04.11.2010 Appellant is the complainant of Complaint Case No. 66 of 1997 instituted under Sections 323, 341, 376, 380 & 452 of the Indian Penal Code. On the basis of the complaint case, F.I.R. of Benipatti P.S. Case No. 99 of 1997 was instituted on the directions of the C.J.M., Madhubani under Section 156(3) of the Cr.P.C. Present case has been filed by the informant against the judgment of acquittal passed by Additional Sessions Judge, Fast Track Court No. V, Madhubani dated 10.8.2010 in Sessions Trial No. 68 of 1998. The case of prosecution as disclosed in the complaint petition, which is the basis of the police case is that on 26.2.1997 the husband of the informant had gone to market for purchasing some articles. The informant was alone in her house and pressing clothes as she is by caste a Washerman. The clothes was being pressed by her at the 2 verandah of her house, when the accused persons came and entered into the room of her house. The room was bolted from inside and one by one all three accused persons committed rape upon the informant. On account of the gang rape by accused persons she had some pain. The daughter of the informant, who had gone to graze cows, return in the meantime, she started weeping loudly to see her mother in the naked position. The accused persons after committing rape on the informant left her house. The complainant, thereafter, filed a complaint case and on that basis police case was instituted in which charge sheet was submitted on completion of the investigation under Section 376 of the IPC against the accused persons. The prosecution examined altogether 7 witnesses. The trial court has discussed the evidence of all witnesses in detail in different paragraphs of its judgment and in para 9 and 10 there is discussion regarding the reason for not believing the prosecution case. Paragraph 9 and 10 of the judgment are quoted herein below:- Paragraph 9 “On the other hand, the learned counsel for accused persons stressfully argued that the 3 prosecution has miserably failed to prove its charges beyond all reasonable doubts. PW1, who is family member of the victim, has not supported the prosecution case. PW 3 has also not supported the prosecution case. PWs. 2, 4, 5 and 7 are not eye witness of the occurrence. The manner of occurrence has also not been proved. There are vital contradiction in the evidence of PWs. PW 2 Mona Devi is own mother-in-law of the victim Asha Devi. She stated that there are houses adjacent by the side of house of Asha Devi in the broad day light, it is not possible to commit rape as alleged by the victim. The accused Thakkab Ram is an uncle of accused Kishori Ram and Accused Dukhmochan is cousin of accused Kishori Ram. It is not probable that uncle, nephew and cousin will commit gang rape in presence of each other one by one as alleged by the victim. PW 5 Poonam Kumari is the daughter of the victim herself. She stated in para 1 of her evidence that her mother did not state anything to her. Evidence of PW 6 4 is not reliable. In para 6 of her evidence, she deliberately stated a lie about the relationship between accused Kishori Ram, Dukhmochan Ram, accused Thakkab Ram. The evidence of PW6 is not consistent with the complaint petition made by the complainant. In complaint petition, the complainant has stated that accused persons spoke that they would teach a lesson to the complainant for lodging a false case against them, but in the evidence, in para 6, she stated that before occurrence there is no dispute with her and accused persons. The complainant did not go to the P.S. before filing the complaint in court, if in fact, alleged occurrence have been happened then naturally, she would have been gone to P.S. for lodging a case and also she get herself examined by the doctor to prove the guilt of accused persons. Neither the victim herself nor her husband got treated the victim by doctor. In para 13, PW 6 deposed that she did not state anything to the villagers about her rape which is unnatural conduct of the informant. The PW 7 5 Asheshwar Safi, who is husband of the informant, deposed that police did not register a case. Contrary to the evidence of PW 6 who stated that she did not go to the P.S. for lodging a case. PW 7 also deposed that the panchayati was held after two days of alleged and Md. Hashim, Pradeep Yadav and Mehdi Jan, Soaib etc. were nominated as panches. The panches asked the accused persons to pay Rs.3,000/- by way of fine but the accused persons did not agree. The evidence of PW 7 has been falsified by the evidence of DW 1- Md. Taslim, DW 2- Soaib, DW 3- Mehdi Jan, DW 4- Pradeep Yadav. All the DWs. Deposed that they know informant Asha Devi and accused persons. The husband of Asha Devi is never made any complaint about the accused persons. Asha Devi informant and her husband never told them about the rape committed by the accused persons. Husband of informant Asha Devi never called them for panchayat, and no alleged panchayat was done by them.” 6 Paragraph 10 “It is further argued by the learned counsel for accused persons that the complainant has suppressed the material evidence of rape by not getting her examined by a doctor. The complainant has not given any satisfactory explanation for delay in filing complaint. The prosecution has not been able to prove the case beyond all reasonable doubts.” The appeal preferred by the appellant against the judgment of acquittal has no merit considering the discussion in the impugned judgment at para 9 and 10 of the impugned judgment. We also find that simply by making an allegation of gang rape and not proving it by other co- related evidence, there is no sufficient ground for conviction. There is no infirmity in the judgment passed by the trial court. Accordingly, this appeal is dismissed. DKS/ (Mridula Mishra, J.) (Dharnidhar Jha, J.)