Judgment ANIL KUMAR SINHA, J. 1. The present appeal has been directed against the order of conviction and sentence passed by the 3rd Additional Sessions Judge, Jam-shedpur,in Sessions Trial No. 330/91 arising out of Mosabani PS case No. 13/91 (G.R. No. 377/91), whereby the learned Additional Sessions Judge convicted the appellant, namely, Manindra Nath Shyamal for committing offence under Sections 457 and 376/511 of the Indian Penal Code and sentenced him to undergo RI for two years each on the aforesaid counts. The sentences were to run concurrently. 2. The prosecution story as per the fardbeyan of the informant Urmila Patar (Exhibit 1) is that in the night of 16/17.2.1991 at about 1 a.m., while the informant Urmila Patar was witnessing a Drama along with her parents in the village, her father asked her at about 1 a.m. to bring a chadar as he was feeling cold. The informant went to bring chadar from her house and as soon as she entered into her house, it is alleged that the appellant Maninder Shyamal also entered in the room, caught hold of her and thrashed her on the ground and after removing her pant committed rape with her. The informant tried to raise alarm but her mouth was gagged by the appellant. After some time the, informants father came and caught the appellant, who managed to release himself and fled away. It is stated that in course of scuffle, the frauk worn by the informant was torn. Thereafter, the informant went to Mosabani in search of mukhiya but since the mukhiya was not available, so, on the following day the informant went to the police station at about 6.00 a.m. along with her father and gave statement before the SI of Police at Mosabani, who recorded her statement and a FIR was lodged against the appellant under Sections 448 and 376 of the IPC. After completing the investigation, the police submitted charge-sheet in the case under Section 448/376, IPC, on the basis of which, cognizance was taken under the aforesaid counts and the case was committed to the Court of Session for trial. 3. After completing the investigation, the police submitted charge-sheet in the case under Section 448/376, IPC, on the basis of which, cognizance was taken under the aforesaid counts and the case was committed to the Court of Session for trial. 3. The accused-appellant was, however, charged under Section 457/376, IPC, to which he pleaded not guilty and claimed to be tried and the defence case is that the accused has been falsely implicated at the instance of mukhiya, namely/Srikant Patar (PW 4) because the accused had worked against him in the election of mukhiya. 4. It appears from the judgment of the learned trial Court that the appellant was not convicted under Section 376, IPC, rather, he was convicted under Sections 457, 376/511, IPC and was sentenced to undergo imprisonment in the manner stated above. 5. In order to prove the charges, the prosecution examined as many as nine witnesses in this case. PW 9 Dr. D.K. Sahu has proved the medical report (Ext. 3) of Dr. (Mrs.) Sundaravalli, Sr. Medical Officer (O&G), Mosabani Mines Hospital since the doctor was not examined by the prosecution It, however, appears from the medical report (Exhibit 3) of the doctor that she did not find any evidence of injury or bruises over the entire body including genitals. She found that the hymen was intact. There is no tear or evidence of bruise and no sperm was found on the examination of the vaginal (sic) for sperm. The doctor has stated in her report (Exhibit 3) that the age of the victim girl is between 10-12 years as no auxiliary/pubic hair was present and the number of teeth found by her was 28 It, therefore, clearly appears from the medical report of the doctor, who could not be examined by the prosecution, that no sign of rape was found by her when she examined the prosecutrix, namely, Urmila Patar. 6. In this case, the most important witness is the informant herself, inasmuch, as the other witnesses are the hearsay witnesses. As such, 1 think it proper to discuss the evidence of the prosecutrix first, who has been examined as PW 3. PW 3 has stated in her examination-in-chief that on being asked by her father, she went to fetch chadar from her house and after sometime her father came and at that time the accused Maninder Shyamal was present in her house. PW 3 has stated in her examination-in-chief that on being asked by her father, she went to fetch chadar from her house and after sometime her father came and at that time the accused Maninder Shyamal was present in her house. She further stated that accused Maninder was misbehaving with her and so her father caught him but he managed to flee away and on the following day she went to the Police Station along with the mukhiya where a report was lodged in the early morning. She further stated that accused Maninder committed rape with her, although she has not stated in so many words that he had any sexual intercourse by penetrating in her private parts and has stated that "Maninder ne mere saath boora kaam kiya". Although, in the FIR, she has definitely stated that the accused committed intercourse with her by penetrating in her private part. In cross-examination, PW 3 has stated that she went to witness Drama in the village along with her mother and she remained with her mother for the whole night and she did not go anywhere during the night hours leaving the Drama. She has further stated that she did not meet with her father during the whole night and she actually met him on the following day at 10 a.m. This statement of PW 3 gives a fatal blow to the prosecution version, inasmuch, as it is the case of the prosecution that at about 1 a.m. in the night, the father asked the informant to bring a chadar from her house and when she went to fetch chadar from the house, the accused followed her and caught her in the house and thereafter, committed rape with her by force. In view of the fact that the informant did not go home during the night hours, the question of committing rape upon her did not arise at all and the very genesis of the occurrence has been given a go-bye by the informant herself. In view of the fact that the informant did not go home during the night hours, the question of committing rape upon her did not arise at all and the very genesis of the occurrence has been given a go-bye by the informant herself. PW 3 has made the position further clear by stating that she did not make any statement before the police and actually she was asked by the mukhiya to affix her LTI on a paper which she obeyed and it was the mukhiya, who took her to the hospital and had some talk with the doctor but no injury was found either on her private part or on any part of her body. She stated in clear and unambiguous term that accused Maninder had not committed any wrong work with her remaining thereby that he had not committed any rape with her. She stated in the following term : "Maninder ne mere sath kabhi koi bum kaam nahi kiya thaa". It would, therefore, appear that PW 3 who is the informant herself has given a fatal blow to the entire prosecution story by making the statement referred to above. It would appear from her evidence that it was the mukhiya of the village, who obtained her LTI on a paper and was instrumental in getting her examined by the doctor and as a matter of fact PW 3 did not make any statement before the police which she has admitted. I am, therefore, of the view that the entire prosecution story must be thrown on the basis of the aforesaid statement made by PW 3 herself but since the prosecution has examined the other witnesses also, it would be proper to discuss their evidence also. 7. PW 1 Uttam Patar is the father of the informant, who has introduced a new story in his evidence by stating that he had sent his daughter to bring a chadar from his house but since she did not return back and there was delay in her return so he himself went to the house and noticed that dibri (diya) which was burning in his house had been extinguished and there was complete darkness in his house. So, at first he lit the "dibri" and then he saw that the accused was lying on his daughter and was committing rape with her. So, at first he lit the "dibri" and then he saw that the accused was lying on his daughter and was committing rape with her. So, he caught the accused and brought him outside the house but he managed to flee away. The evidence of PW 1 has been given a go-bye by his daughter Urmila Patar (PW 3), who has admitted in her evidence that she did not go to fetch any chadar from the house in the night hours and she remained with her mother witnessing the Drama for the whole night and met her father on the following day at 10 a.m. PW 3 is a minor girl aged about 12 years and her evidence looks more convincing and reliable and in view of her statement that she remained all through in the yatra (Drama) during the night hours and did not go home to fetch any chadar, the evidence of PW 1 looks apparently false and does not deserve to be relied upon. PW 1 has given an explanation for delay in lodging the FIR which is quite contrary to the explanation given in the fardbeyan (Exhibit 1), inasmuch, as it has been stated in the FIR that the delay occurred because he had gone to search mukhiya, who was not available and when the mukhiya came he went along with him to the police station and reported the matter to police but in his evidence he has given a different explanation that a panchayati had taken place and due to that reason, delay occurred in lodging the FIR.In cross-examination, PW 1 has admitted that Dhundha Patar is his uncle-in-law and the father of accused had instituted a case against him regarding burning his house and so, it is evident that there is previous enmity between PW 1 and the accused on account of the aforesaid reason. He has, further, admitted that it took about 5-10 minutes time to lit the dibri and after lighting the dibri he saw the accused committing rape with his daughter. He has, further, admitted that it took about 5-10 minutes time to lit the dibri and after lighting the dibri he saw the accused committing rape with his daughter. This statement of PW 1 looks highly improbable and doubtful because the IO had admitted in his evidence that there is only one room in the house of the informant and if PW 1 entered in the room (the only one), the accused in all probability must have fled away then and there and it is not worth belief that he will continue with the commission of rape for 5-10 minutes after the arrival of PW 1, who lit the dibri and thereafter saw the accused, committing rape with his daughter. As such, the statement made by PW 1 that after lighting the dibri which took about 5-10 minutes time, he saw the accused committing rape with his daughter looks apparently false. PW 1 has then stated that when the accused fled away, he raised alarm. But curiously enough, no body came to his house, although it is an admitted position that Drama was being played at a distance of 100 yards from his house where the entire villagers were witnessing the Drama. So, this statement of PW 1 also does not look believable that no body came to his rescue on alarm being raised by him. PW 1 has then stated that the pant which the prosecutrix was wearing was thrown into the room with blood stains on it. First of all, there is no seizure of any such pant by the IO, nor, the pant having blood stains was produced in the case. What looks more surprising that PW 1 has stated that the pant was thrown into the room with the blood marks. In my humble view, this statement also looks highly improbable because if the pant had been removed from the person of the prosecutrix and had been thrown somewhere in the room, there was no possibility of it having got any blood mark on account of the commission of rape. PW 1 has stated about the written report which was submitted before the panchayati and has stated that the sarpanch had given his decision, but neither the sarpanch has been examined in the case nor the written report submitted by him before the sarpanch could saw the light of the day. PW 1 has stated about the written report which was submitted before the panchayati and has stated that the sarpanch had given his decision, but neither the sarpanch has been examined in the case nor the written report submitted by him before the sarpanch could saw the light of the day. According to PW 1, panchayat took place on the following day in evening and since the matter could not be resolved in the panchayat so the panchayat referred the matter for institution of a case. But, it appears that the FIR was instituted at 6 p.m. on 17.2.1991, although the distance of the police station is 5 km. from the place of occurrence. It would, therefore, appear that the story invented by PW 1 regarding holding of panchayati is nothing but figment of his imagination. 8. PW 2, Radha Rani Patar is none else but the mother of the informant with whom the informant was witnessing the drama in the alleged night of occurrence. PW 2 has clearly stated that she had gone to witness the drama which was being held at distance of 200 steps from her house and she never heard that her husband had sent her daughter to bring a chadar from house and no incident took place in her house on the fateful night nor the police ever come in the village and enquired from her or from her daughter. This witness was declared hostile by the prosecution but we cannot discard her evidence only on the ground that she has been declared hostile as she did not support the prosecution case. In cross-examination, PW 2, who is the mother of the informant, has clearly stated that her daughter Urmila was all along with her during the night hours and both of them went to their house in the following morning. She has further admitted that she lives in the house of Srikant Patar, mukhiya and the mukliiya had taken away her daughter to the police station where she was asked to give her thumb impression and as a matter of fact, she did not institute any case 9. She has further admitted that she lives in the house of Srikant Patar, mukhiya and the mukliiya had taken away her daughter to the police station where she was asked to give her thumb impression and as a matter of fact, she did not institute any case 9. PW 4, Srikant Patar is the mukhiya, who is a hearsay witness and according to him, he was informed about the occurrence by PW 1 and so, he went to the police station with the informant and her father and reported the matter at the police station. PW 1 has admitted that 2-3 cases are pending in which he is involved and has denied that he took the signature of LTI of PW 1 or his daughter, although PW 3 and PW 2 have made consistent statement to the effect that the mukliiya obtained the LTI of the informant on a piece of paper. PW 4 has denied the suggestion that since the accused had opposed his election, that is why, he has falsely implicated him in this case. 10. PW 5, Kamal Shyamal, PW 6, Ratan Shyamal and PW 7, Akshay Kumar Patar are all hear-say witness, who derived knowledge regarding the commission of rape from other persons. PWs 5 and 6 have expressed their ignorance regarding the commission of the alleged rape by the accused and so far PW 7 is concern, he has admitted that the mukhiya is his own brother and it appears that he is also sailing on the same boat. 11. PW 8, Chandergupt Prasad is the IO of this case, who has proved the formal FIR (Exhibit 2) and has stated that in course of investigation, he visited the place of occurrence and according to him, the place of occurrence is a house situated in village Koilisuta consisting of three rooms out of which he found that two rooms had been demolished and only one room was in living condition. In cross-examination, PW 8 has admitted that he did not seize any incriminating article from the house of the informant and has admitted that medical report received by him did not disclose any such injury on the person of the informant. In cross-examination, PW 8 has admitted that he did not seize any incriminating article from the house of the informant and has admitted that medical report received by him did not disclose any such injury on the person of the informant. The evidence of PW 8, who is the IO of the case looks doubtful in the sense that if he would have really visited the place of occurrence, he must have at least disclosed the boundary of the house, in question. But, in his evidence, he has not disclosed the boundary of the house of the informant while describing the place of occurrence which goes to show that he has done table work and he actually did not visit the place of occurrence which finds support from the evidence of PWs 2 and 3, who have unequivocally stated that the police never came to the village or recorded their statement. 12. The learned Counsel for the appellant submitted before me that the appellant is quite innocent and has been falsely implicated by the mukhiya of the village and from the evidence on record it is well proved that no rape was committed by the appellant with the informant as alleged in the FIR and it is also well established from the evidence of the prosecutrix herself supported by the evidence of her mother that the entire prosecution is a false one. The learned Counsel further submitted that the learned Court below wrongly convicted the appellant under Sections 457, 376/511, IPC and his argument was that if the allegation of committing rape, as alleged in the FIR, is falsified, there was no material before the learned Court below to fasten the appellant with the liability of committing offence under Section 376/511, IPC. It was also pointed out to me that in the facts and circumstances of the case, it Was not possible for the appellant to successfully commit rape with the prosecutrix single-handed when according to the FIR the prosecutrix was offering resistance. It was, therefore, submitted that the appellant should be held not guilty and acquitted of the charges. The submission advanced by the learned Counsel carries much force in it. 13. It was, therefore, submitted that the appellant should be held not guilty and acquitted of the charges. The submission advanced by the learned Counsel carries much force in it. 13. In view of the discussions made above, I have no doubt to say that the allegation of committing rape with the informant by the appellant is proved to be false from the evidence of prosecutrix, her mother and from the medical evidence also. There are materials on the record which suggest that the appellant was implicated in the case at the instance of PW 3, Srikant Patar, who is the mukhiya of the village. I further find that there was no justification for the learned Court below to hold the appellant guilty for committing offence under Sections 457, 376/511, IPC and it appears that learned Court below convicted the appellant in the manner stated above by ignoring the evidence of PWs 2 and 3 as also the medical evidence which completely falsifies the prosecution case. 14. On consideration of the evidence, facts and circumstances of the case, as discussed above, I hold the appellant not guilty to the charges and acquit him of the same. The impugned order of conviction and sentence is hereby set aside and this appeal, is accordingly, allowed. The appellant, who is on bail, is discharged from the liabilities of bail bond.