Criminal Appeal (SJ) No. 77 of 2007 ------- Against the judgment and order of conviction and sentence dated 21/22.11.2006 passed by Shri Shivendra Narain Singh, Additional Sessions Judge, Fast Track Court IV, Muzaffarpur in S.T. No. 520 of 2005. ------- Fakira Sahani, son of late Banke Sahani, resident of village – Korma Dih, Police station – Kurhani, District – Muzaffarpur ………………… Appellant Versus The State of Bihar ……………. Respondent -------- For the Appellant : Shri Sushil Kumar Singh, 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. The solitary appellant Fakira Sahani was indicted of committing offence under section 376 IPC on Dahauri Devi (P.W.5) at 10 A.M. on 6.4.2004 while she was scrapping grass in the fields for being tried in S.T. No. 520 of 2005. By judgment dated 21.11.2006, the appellant was held guilty of committing that offence. The learned Presiding Officer, Fast Track Court IV, Muzaffarpur, after hearing the appellant on sentence, directed him to suffer RI for seven years as also to pay a fine of rupees five thousand, else to suffer RI for one more month. The appellant has preferred the present appeal to challenge the propriety of the order of conviction and appropriateness of sentence passed upon him. 2. P.W. 5 alleged that while she was scrapping grass, this appellant came, overpowered her and after putting her on the ground, ravished her. The written report (Ext.2) was filed after twenty two hours of the occurrence and on that basis, FIR was drawn up, which was investigated into by P.W. 6, the I.O. of the 2 case. The allegation was that the appellant had committed the act into a maize field. However, the evidence of P.W. 6 indicated that no maize plant had been smashed, broken or trampled. In fact, P.W. 6 did not find any signs of commission of any such offence, as alleged by the prosecutrix but, still, because the prosecutrix was supporting herself and some more witnesses were coming to support the allegation during investigation, the solitary appellant was sent up for trial. 3. The appellant had pleaded in defence that he had falsely been implicated on account of some dispute with regard to a piece of land which was mortgaged, but the learned trial judge brushed aside that defence and went on to pass the impugned judgment. 4. As many as seven witnesses were examined, out of whom all turned hostile except P.W. 5, the prosecutrix and P.W. 6, the Investigating Officer. P.W. 7, the doctor, who had examined the prosecutrix (P.W. 5) has stated that she did not find any signs of commission of rape upon P.W. 5 and, further, that the signs may not have been found on account of the lady being of advanced age and habituated to sexual intercourse. This appears from Ext. 2, the medical report submitted by P.W. 7. 5. While arguing the appeal, it was contended that solitary evidence of the prosecutrix was not supported by any independent source so much so that the medical opinion was also not lending any support to her evidence. It was contended further that the evidence of the I.O. regarding the absence of any signs of trampling or struggling on being dragged into the field was quite contrary to the circumstances which could be supposed to be present in the light of the story as was told by P.W. 5. It was contended that the learned trial judge was conjecturizing to convict the appellant by noting that because there was no motive nor there was any specific explanation offered by the present appellant as to why he had been implicated in the present case, the charge stood proved. 6. The reasoning assigned by the learned trial judge does not find favour with me for many reasons; one of the reasons being that the lady stated in her 3 evidence as also in the written report that when the appellant was committing the act, she was crying and shouting for help and many persons were attracted to the scene of occurrence, seeing which the appellant released the lady and ran away. The appellant was seen running away from the scene of occurrence by persons who had been attracted to the scene of occurrence. No one supported this story of P.W. 5. Even her family members who were the husband or her children, did not come before the court to state that the lady after having reached her house, had stated to any of them as to what had befallen her. There was no trampling or any such mark on the place of occurrence and it goes unexplained as to why the written report was lodged after twenty two hours of the occurrence and the lady was produced before P.W. 7 for her examination after three days. She was taken into the field and, necessarily, by being dragged and therefore, it could be safely supposed that some marks of violence could have appeared on her person but, P.W. 7 did not find any, least to talk of finding any injury on her private part. 7. It is true that the lady did not have any of the motives to falsely implicate the appellant but, that does not prove the charge inasmuch as the evidence of the witnesses does not inspire confidence of the court. Circumstances, which I have just pointed out, create a dent in the prosecution story and the evidence of P.W. 5. It is not quite unsafe to place reliance upon the evidence of P.W. 5 so as to convict the appellant. There might be various reasons which could be known to the prosecutrix herself as to why she came forward with such a belated story and why she was shying away from being medically examined for three days of the occurrence and was still slapping the written report upon the appellant with such serious charges. The story does not inspire confidence nor does her conduct and, as such, I find that this is a fit case in which the appellant could have been acquitted after being given the benefit of doubt. That benefit of doubt is allowed to accrue to him by allowing the present appeal. 4 8. The judgment and order of conviction and sentence are set aside. The appeal stands allowed. The appellant appears to be in custody. He shall be released forthwith if not wanted in any other case. 9. Shri Sushil Kumar Singh, learned amicus curiae has assisted this court immensely and, as such, 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 20th October, 2011, NAFR/Anil/