Criminal Appeal (SJ) No.143 of 1998 Against the judgment and order dated 26. 03. 1998 passed by Sri Shobha Kant Pathak, Vth Additional Sessions Judge, West Champaran, Bettiah, in Sessions Trial No. 521 of 1997. 1. Hari Yadav, son of Sita Yadav. Resident of Village+P.o. Gudra More Tola, P.S. Majhaulia, District- West Champaran. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. For the Appellant. : Mr. S.N.P. Sinha, Senior Advocate. Mr. Mukesh Kumar, Advocate. Mrs. Mira Kumari, Advocate. For the Respondent State : Mr. Parmeshwar Mehta, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted for offence under Sections 366 A and 376 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for ten years for offence under Section 376 I.P.C. and further sentenced to undergo rigorous imprisonment for seven years for offence under Section 366 A. 3. The prosecution case as alleged by the complainant/informant on the complaint petition that in the night she was sleeping in her house, Dibia (lamp) was 2 burning, then accused entered into her thatch house by breaking the Tati (thatch fencing). Accused kept his hand on her body then she get up and cry then accused person closed her mouth and he lifted her and carry her toward Shesham orchard and committed rape on her. When she tried to resist then co-accused used to threat to kill her. There is delay in getting her check up due to her being poor state of affairs and delay in lodging the case due to social reason. However, occurrence is dated 14. 06. 1997 and complaint filed on 19. 06. 1997. After investigation, charge sheet submitted. Cognizance was taken and the case was committed to the Court of Sessions. 4. However, during trial nine witnesses were examined. However, P.W. 1 is the informant. P.W. 2 to 7 are non-official witnesses and there were turned hostile as they are P.W. 2 Jagdish Sahni, P.W. 3, Heera Sahni, P.W.4, Heera Yadav, P.W.5 Marachhia Devi, P.W. 6, Thakur Yadav, P.W.7, Ramjee Raut, P.W. 8, Usha Das, the Doctor and P.W. 9, Mahadeo Rabidas. On considering both oral and documentary evidence order of conviction and sentenced recorded as stated above. 5. Learned counsel for the appellant however, 3 contends that except the informant (victim), other non- official witnesses are turned hostile and occurrence is on 14. 06. 1997 and victim was examined on 23. 06. 1997 by the Doctor and evidence of Doctor does not corroborate hence, the evidence of prosecutrix not reliable to be accepted without any corroboration and hence prosecution has not been proved beyond reasonable doubt. 6. However, taking into consideration the prosecution case on the basis of which F.I.R. was lodged is that on the date of 14. 06. 1997, she was sleeping in the room and Dibia (lamp) was burning, then accused persons came by tearing the Tati and kept his hand on her body and when she made cry then her mouth was closed and she taken in Shesham orchard where they take out her cloths and committed rape on her. Prosecutrix in her evidence supported the prosecution case burning of Dibia (lamp) and Hari Yadav with one person took her in Shesham orchard when she tried to make hulla then closed her mouth and committed rape. She has further stated that she is coming in the village and disclosed the incident to Marachhia Devi and her father-in-law, Jagdish Sahni. However, in her cross-examination, she has not 4 compromise with Hari Yadav and she has compromised while disclose by his father name. 7. However, this witness in her cross- examination has stated that in the night it was dark and she could not identify the face of accused clearly. She has further stated that his father-in-law taken loan from Hari Yadav prior to the occurrence and Hari Yadav used to came and demanded the money given to his father-in-law and even after 2-3 days of the occurrence, he has also come. After nine days of the occurrence she along with her father-in-law came in court to file the case. She has further stated that Advocate did not enquire him about the occurrence. She has further stated that Hari Yadav gone to jail then there was Panchayati held in the village and in Panchayati, Hari Yadav ready to clear the loan then the case was compromised. However, this witness also shown to be minor, though, evidence of the Doctor has assessed her age 14 to 15 years on the basis of X-ray report. The doctor has stated in his evidence that if the victim was examined after a week then spermatozoma may not be found and it is difficult to say whether rape was committed or not ? However, occurrence is on 14. 06. 5 1997 and medical examination was done on 23. 06. 1997 and hence it is difficult to find out any corroboration of rape and Doctor has also found that no recent sign of sexual assault on the person. However, P.W. 2 to 6 turned hostile which includes Marchhia Devi and her father-in- law as they have stated they did not know about the occurrence and hence, neither they neither supported the case of Pramila Devi nor have supported the case of rape nor even the victim ever complained about rape. 8. So far, evidence of the victim is concerned, she has stated her age in her evidence 14-15 years, but the Presiding Officer has assessed her age between 18 to 20 years in the deposition. However, there is no other evidence about age of the victim, but it is admitted and not in dispute that victim is married lady and the occurrence took at her Sasural and his father-in-law was there, but her husband was out. 9. Now the question for consideration, whether the evidence of the witness is reliable to be accepted even without corroboration. However, it is legal principle that if evidence of the victim inspire confidence and there is no conformity in her evidence which may be accepted then in 6 that case evidence of sole witness or prosecutrix can be accepted and conviction can be recorded. However, if the evidence of witness is staking and is not of that decree to inspire confidence and there is something to be required more and then corroboration is required to maintain conviction. 10. However, having regard to the fact that occurrence took place on 14. 06. 1997, but it was not reported and after five days complaint was filed at the instance of her father-in-law. As per evidence of this witness that her father-in-law took her to court and there complaint was drafted and lodged and then there is intention, though, she stated in her cross-examination that a Dibia (lamp) was burning as well as in her cross- examination she has stated that there was dark and she could not identify the face clearly and further there was a loan on his father-in-law and the appellant used to come for payment for loan and this circumstance create a doubt about false implication or otherwise to rely with the evidence of this witness when she has changing her statement from time to time. 11. Having regard to the fact that this victim is a 7 married woman and court has assessed her age as 18-20 years and F.I.R. was drafted at the instance of her father- in-law, but her father-in-law neither supported the prosecution case nor has supported rape. Hence, in such circumstances, conviction on the basis of sole testimony of the victim is neither proper nor legal and in such circumstance, conviction without corroboration is not in the interest of justice. 12. Having regarding to the facts there is no corroboration at all and the evidence of the prosecutrix suffer from contradiction and changing her sole testimony of the evidence creates doubt to rely on her sole testimony, so the prosecution has not prove the charges beyond reasonable doubt and hence order of conviction and sentence recorded by the lower court is herby set aside and the appeal is allowed. Patna High Court. The 3rd August, 2011. NAFR/m.p. ( Gopal Prasad, J.)