CRIMINAL APPEAL (SJ) NO.766 OF 2007 Against the judgment of conviction dated 23.06.2007 and order of sentence dated 02.07.2007 passed by Additional District & Sessions Judge, Fast Track Court-I, Banka in Sessions Trial No.77 of 1995. 1. SUSHIL TANTI & 2. GOPAL TANTI Both resident of village-Boka, Police Station- Belhar, District-Banka.... Appellants VERSUS STATE OF BIHAR.... .... RESPONDENT For the Appellants: S/Sri Krishna Mohan & Praveen Kumar, Advocates. For the Respondent: Sri Ajay Mishra, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The present appeal is directed against the judgment of conviction dated 23.06.2007 by which the two appellants were held guilty of committing an offence under Section 376 IPC. After being heard on sentence on 02.07.2007, the tow appellants were directed to suffer rigorous imprisonment for seven years as also to pay a fine of Rs.5,000/-, else, to suffer simple imprisonment for six months. 2. The prosecution case is contained in the fardbeyan dated 29.01.1994 of P.W.5 Rukma Devi who happened to be the victim of the case alleging that while she was going to bring the bundles of paddy from the field at about 6.30 P.M. and had reached a 2 particular place, the two appellants armed respectively with country made gun and chhura accosted her and put her on the ground and by turn committed rape upon her. It was stated that because her husband was in Kolkata and not at the village, she had awaited to lodge the report and finally had lodged the report. The informant stated that after she had come to her house she informed the witnesses who have been examined in the case including her mother-in-law who has not been examined. 3. It is apparently clear that the lady was not examined by any doctor and the record indicates that the investigating officer of the case was also not examined. However, five witnesses came to support the prosecution case. P.Ws.1, 2, 3 and 4 stated that they had learnt about the incident from P.W.5. P.W.5 stated in her evidence that while she was going to bring the bundles of paddy from the field the two appellants accosted her and committed rape upon her at the point of gun and chhura by turn. The lady stated that her mother-in-law was in the same field where the paddy bundle were lying and she was undressed by the appellants for being raped. She went and narrated the incident to her mother-in-law. It is pertinent to point out that the mother-in-law has not been examined. So far as the evidence of the lady is 3 concerned, she has stuck to her version that the two appellants raped her. However, during her cross- examination, she stated that she had gone to police station with her husband for lodging the report and her husband put his L.T.I. as a witness. This evidence of P.W.5 is completely contrary to the earlier version given by her before the police. The remaining witnesses P.Ws.1, 2, 3 and 4 have stated that they came to learn about the incident from P.W.5, but it appears from the evidence of P.W.3 in paragraph-4 that the lady was having some regular visitors in her house in absence of her husband. 4. It was contended that the fardbeyan was lodged after 49 days of the occurrence which has taken place on 12.12.1993. Contention was that there was no explanation and whatever was stated by the lady in her evidence was completely bogus inasmuch as she appears stating to the court that she had narrated the incident to the Mukhiya and Sarpanch and they had asked her to go and lodge the report. However, she stated that the accused persons were threatening her not to lodge the report, but ultimately the lady lodged the report after 49 days of the occurrence. Witnesses were cross-examined regarding the previous enmity between the parties. P.W.1 in paragraph-3 and P.W.5 in paragraph-3 have stated that they were not 4 aware of the fact as to whether P.W.5 had lodged any case earlier to the present one against the accused persons. However, the defence in order to support that plea produced the certified copy of the complaint register Ext-1 which indicated that Complaint Case No.C-815 of 1993 was filed by the informant also under Section 376 IPC against the two appellants and three others on 14.12.1996 for the same occurrence. Thus, it appears that there was some enmity between the parties and making of the report after 49 days of the incident without any acceptable reasons in that behalf does not appear convincing. 5. Attempt was made by the defence to probabilize as if the lady was of easy virtue and that was the reason that a specific question was put to her during her cross-examination paragraph-4 that she had illicit relationship with many boys of her village and she used to have sex with them. It is true that she had denied the suggestion but P.W.3 who was her own Gotni stated in court in paragraph-4 that she was regularly visited by multiple villagers and might be that the lady was of easy virtue and there could be some strong reason to her that she filed a false case on account of any particular reason which might not be known to the defence. This is the reason that witnesses who were examined by the defence, like, 5 D.Ws.1, 2 and 3 were stating that she had never stated to any one in the village about the appellants committing the offence as alleged. After having perused the evidence, I find that there could be sufficient reason to doubt the veracity of the story and in that light the appeal succeeds. 6. In the result, the appeal is allowed. The appellants are acquitted of the charge for which they were convicted. The sentences passed upon them are also set aside. The appellants, namely, Sushil Tanti and Gopal Tanti are in custody. They shall be released forthwith, if not wanted in any other case. Patna High Court, Dated, the 16th day of September, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)