JUDGMENT Amareshwar Sahay, J. 1. The appellant Hare Krishna Das has preferred this appeal against the Judgment dated 07.10.1999 passed by Sessions Judge, Chaibasa in Sessions Trial No. 178 of 1998 whereby and whereunder, the appellant was convicted under Section 376 of the Indian Penal Code and was sentenced to undergo Rigorous Imprisonment for a period of seven years. 2. The prosecution case in short according to the prosecutrix Bhanumati Pan (P.W.-6) who recorded her Fard Bayan on 27.10.1997 at about 4:00 P.M. at the Police Station along with her sister-in-law Jai Ma Devi and cousin Yudhisthir Pan alleging therein that on 25.10.1997, in the night, she was sleeping in her home after taking her meal. Her mother was also sleeping on a nearby cot. At about 10:00 P.M. in the night, her co-villager Hare Krishna Das (appellant) entered into her room, lifted her from the cot and then he wanted to take her out of the room, but at that time she woke up and then she tried to raise alarm but, the accused gagged her mouth and thereafter took her to the courtyard and then led her down on the ground and then, gagged her mouth and then he forcibly committed rape on her. Further case is that after committing rape, the accused stood up and thereafter, the informant (P.W.-6) started raising alarm. At this, her mother who was sleeping, woke up but by that time, the accused fled away by scaling the boundary wall. Immediately thereafter, the neighbours namely Neelambar Pan and Kuni Devi etc. came there to whom, she narrated about the occurrence. 3. After instituting the F.I.R., the victim girl was sent for medical examination. P.W.-3 Dr. Radhika Kumari Sinha examined her medically and found her to be aged between 20 - 23 years and she was found to be sexually habitual. Hymen were old ruptured, no spermatozoa, dead or alive was found. Even no kind of injuries found either on her private part or any part of her body. 4. After completion of the investigation, chargesheet was submitted against the appellant and was put on trial. 5. In order to establish the charge, altogether seven witnesses were examined by the prosecution. P.W.-1 Kesav Chandra Pan, is the brother-in-law of the victim girl who allegedly came at the place of occurrence after hearing the alarm raised by the victim. 4. After completion of the investigation, chargesheet was submitted against the appellant and was put on trial. 5. In order to establish the charge, altogether seven witnesses were examined by the prosecution. P.W.-1 Kesav Chandra Pan, is the brother-in-law of the victim girl who allegedly came at the place of occurrence after hearing the alarm raised by the victim. He stated that he saw the appellant fleeing away from the place of occurrence after scaling the boundary wall. He has admitted that the night was dark and there was no source of light at the place of occurrence. 6. P.W.-2 is Neelambar Pan, the brother of P.W.-1. He has also stated on the same line to that of P.W.-1 and he has stated that he also arrived at the place of occurrence after hearing the Halla raised by the victim girl and then he also saw the appellant fleeing away from the place of occurrence. 7. P.W.-3 is the Doctor, who examined the victim girl medically. 8. P.W.-4 is Sudarsan Pan who is the cousin of the victim girl. He has also stated in his evidence that after hearing Halla raised by the victim girl, he came running to her house and saw the appellant running from the place of occurrence. 9. P.W.-5 is Savitri Pan who is the mother of the victim girl. She has stated in her evidence that she was also sleeping in the same room in which her daughter i.e. the victim girl was sleeping. This witness, though in her examination in chief has stated that she saw the appellant committing rape on her daughter but, in her cross examination, she has stated that she could not see as to when her daughter was taken out from the room and it is only at about 2:00 - 3:00 in the night, she heard the alarm of her daughter and then she came out of the room and thereafter, she saw her daughter was lying on the ground and the appellant was fleeing away from that place. This statement of P.W.5 clearly makes her evidence unreliable because it is totally against the prosecution version according to which the occurrence took place at 10:00 P.M. and not at 2:00 - 3:00 P.M. 10. P.W.-6 is the prosecutrix herself. She has narrated the story of rape on her by the appellant in details. This statement of P.W.5 clearly makes her evidence unreliable because it is totally against the prosecution version according to which the occurrence took place at 10:00 P.M. and not at 2:00 - 3:00 P.M. 10. P.W.-6 is the prosecutrix herself. She has narrated the story of rape on her by the appellant in details. She has admitted in her evidence that P.W.-1 and P.W.-2, who were her brother-in-laws, were accused in connection with a case under Section 376 of the Indian Penal Code and in that case, the present appellant was one of the witnesses of the prosecution and in the said case, both P.W.-1 and P.W.-2 were convicted under Section 376 of the Indian Penal Code. 11. P.W.-7 is the Investigation Officer. 12. On the basis of the aforesaid evidence of the prosecution, the learned Trial Court convicted and sentenced the appellant as stated in earlier paragraphs. 13. Challenging the conviction and sentence passed by the Trial Court, learned Counsel appearing for the appellant has submitted that the whole case of the prosecution is concocted and it was lodged only with a view to take revenge as the appellant had deposed as prosecution witness against the brother-in-laws (P.W.1 and P.W.2) of the victim girl in a case in which both of them were accused in a case under Section 376 of the Indian Penal Code and her brother-in- laws i.e. P.W.-1 and P.W.-2 were convicted in the said case of rape. It is further submitted that the story put forward by the prosecution was whole improbable because of the fact that admittedly the night of the occurrence was dark and no evidence has come on record that there was any source of light at the place of occurrence and therefore, at the time when all the members of the family were sleeping after taking their meal, it was not possible for any person to identify the appellant or any other person who may have entered into the house. It is further submitted that even according to the prosecution, the house of the victim was surrounded by a boundary wall but the door of the main entrance was not locked from inside rather it was open and from that very door, the three witnesses namely P.W.-1, P.W.-2 and P.W.-4 came to the place of occurrence after hearing the alarm raised by the victim and allegedly saw the appellant fleeing away from the place of occurrence by scaling the boundary wall. If the main door was open then it can be believed that instead of using the open door, the appellant would flee away be scaling the walls. It is further argued that according to the medical evidence, though the girl was aged about 20 - 23 years and was unmarried but she was found to be habituated to intercourse. This makes her to be of doubtful character. Further, according to the Doctor, neither there was any sign of rape nor any injury on her private part or on her person was found which makes the case of the prosecution to be doubtful. 14. Having gone through the evidence of the prosecution in detail, I am in agreement with the submission advanced on behalf of the appellant and I feel that it is not safe to sustain the conviction of the appellant on the basis of such unreliable evidence. 15. In view of the discussions and findings above, I hold that the trial Court has committed error in convicting the appellant under Section 376 of the Indian Penal Code through, the prosecution failed to establish charge beyond all reasonable doubts. Consequently, this appeal is allowed. The conviction and sentence passed against the appellant by trial court is hereby set aside. The appellant who is on jail, is directed to be released forthwith if not wanted in any other case.