JUDGMENT This appeal has been filed against the judgment of conviction dated 31.7.2001 and order of sentence dated 6.8.2008 passed by Sri Sarju Prasad, Sessions Judge, Godda in Sessions Trial No. 45 of 2000 against the appellant, Laxman Mahato, by which the appellant has been found guilty of committing rape upon the informant, victim, Sunita Kumari and has been convicted U/S 376 of I.P.C. and has been sentenced to undergo rigorous imprisonment for seven years. 2. The prosecution case was started on the basis of the fardbeyan given by the victim girl, Sunita Kumari, P.W.4. The fardbeyan was record by the Investigating Officer, P.W.9, Randhir Singh on 16.2.1999 in the evening at 6.30 in the evening near the garage of Laxman Singh. The victim girl has stated that on 16.12.1999 in the evening at 5.30 P.M. she was going to the shop of Pralad Sah for purchasing pencil on foot. When she reached near the Ashok Electrical Shop then the accused Laxman Mahato aged about 20 years S/o of Ram Swaroop Mahato guarded her from the front and after closing her mouth took her in his garage and closed the door from inside. While her mouth was closed , he put her on the chouki and after removing her panty, he committed rape upon her by force. Thereafter he went out of the garage. She started weeping inside the garage then people gathered there, where upon Laxman Mahato ran away. In the meanwhile police also came and recorded her statement. 3. On the basis of her said fardbeyan police registered a case u/s 376 I.P.C. and after investigation submitted chargesheet against the accused persons. Since the case was exclusively triable by the court of sessions, learned Magistrate took cognizance of the offence and committed the case to the court of sessions where the trial was held. 4. It appears that in course of the trial, the prosecution has altogether examined nine witnesses. P.W.1 is Pramod Kr. Mandal, P.W.2 is Birendra Mahto, brother of the informant,P.W.3 is Nakul Mahto, father of the informant, P.W.4, Sunita Kumari is the informant herself, P.W.5 is Ahilya Devi, P.W.6 is Bindiya Devi, P.W.7 is Pradeep Yadav, declared hostile, P.W.8 is Doctor Lily Singh who examined the victim and P.W.9 is Randhir Singh, investigating officer of the case. P.W.1 is Pramod Kr. Mandal, P.W.2 is Birendra Mahto, brother of the informant,P.W.3 is Nakul Mahto, father of the informant, P.W.4, Sunita Kumari is the informant herself, P.W.5 is Ahilya Devi, P.W.6 is Bindiya Devi, P.W.7 is Pradeep Yadav, declared hostile, P.W.8 is Doctor Lily Singh who examined the victim and P.W.9 is Randhir Singh, investigating officer of the case. Learned trial court after considering the evidence and materials on record found the appellant Laxman Mahato guilty and convicted and sentenced him as aforesaid. 5. It is submitted by learned counsel for the appellant that the victim girl, Sunita Kumari(P.W.4) has given a totally different version in her statement before the court and as such the statement given by her in the fardbeyan is either not true or the statement which she had signed given before the investigating officer has not been brought to the notice of the court and as such the her fardbeyan and statement u/s 161 Cr.P.C are contradicting each other. He has further submitted that non examination of any independent witness, who were seen near about the occurrence or who came immediately after the occurrence as admitted by the prosecution witnesses also creates doubt in the prosecution case. Learned counsel for the appellant has further submitted that evidence of the doctor and the investigating officer also does not corroborate the evidence of the prosecutrix. In such a situation the learned trial court committed an error of law and fact in convicting the appellant and it is a fit case in which benefit of doubt must be given to the accused. 6. On the other hand learned counsel for the state has submitted that there is no difference in the statement of the prosecutrix as given in the fardbeyan and as given in her statement before the court when she was examined as P.W.4. There is direct allegation of rape against the acused. More over he submitted that there is no reason given by the defence as to why she will falsely implicate the accused. 7. There is direct allegation of rape against the acused. More over he submitted that there is no reason given by the defence as to why she will falsely implicate the accused. 7. After hearing both the parties and going though the evidences, I find that P.W.4, the victim girl, Sunita Kumari has stated that on 16.12.1999 she had left her house to purchase a pencil from the shop of Prahlad Sah and when she reached near the electrical shop then the accused Laxman Mahato came from back and closed her mouth and there after by force he took her in a motorcycle to his garage. There after in the room of the garage he threw her on a chouki and committed rape upon her. She has stated that after committing rape he cloased the door of the room from outside by lock then she started making hulla where upon people gathered and police also came. When the police came she gave her statement to the police where she signed on the same also. She has proved her signature in the fardbeyan as Ext1/A. She has stated that she gave her panty to the police who prepared a seizure list which was signed by her and her aunt, Bindiya Devi put her L.T.I. Her signature was marked in the seizure list as Ext1/B. She was sent to the Sadar Hospital where she was examined and she identified the accused in the court. In her cross examination she has st ated that she was sent for medical examination on that very day and she was found aged about 15 years. In her cross examination she has stated that she does not know the accused from before and only knew as she used to see him going on the road. In para 15 of cross examination with regard to the manner of the occurrence, she has stated that the accused Laxman Mahato with another person who was driving the motor cycle brought her to the garage and Laxman Mahato and that person brought her inside the room by force by catching hold her leg and hand. When they took her inside by force she had made hulla, but nobody came. In para 17 she has stated that when Laxman Mahato was opening her panty then the other persons was holding her legs. When they took her inside by force she had made hulla, but nobody came. In para 17 she has stated that when Laxman Mahato was opening her panty then the other persons was holding her legs. She also stated that during the rape that other person was also standing inside the room. In para 22 of her cross examination she has stated that after committing rape both the accused persons ran away by putting the lock from outside the room. In para 22 she has stated that when the Investigating Officer came, he opened the door by breaking the lock. She has stated that at that time she was unconscious and when she was taken to the police station, then she regained her consciousness and thereafter she gave her statement in the Police station. This statement of the prosecutrix has not been corroborated by the Investigating Officer who is examined as P.W.9. P.W.9, Investigating Officer has stated in court that on 16.12.1999 he was posted at Godda Police station and about 6 p.m. in the evening he got some information that there was some fight between boy and girl near the house of Chakradhar Yadav at Bathdiha. When he reached there then in front of the garage the victim, Sunita Kumari gave her fardbeyan. In para 10 he has very clearly stated that he did not find the ‘kewar’ of the room closed or any broken lock at the place of occurrence. At para 14 he has stated that he did not find any breaking of ‘janjir’ of the kewar. At para 16 he stated that none of the witnesses stated before him that they saw the accused Laxman Mahato running away from the place of occurrence. He has stated that the place of the occurrence is busy place and there are shops and people near about. The father of the prosecutrix was also examined in the court as P.W.3. He has stated that on 16.12.1999 at about 5 p.m. when he was at his shop then a boy came in motorcycle and asked him to go to his house and on the way he stated that Sunita Kumari has been raped He came there and found his daughter Sunita Kumari is closed in the garage by Laxman Mahato. She told him about the occurrence. She told him about the occurrence. He also wanted to corroborate the victim girl by saying that the police reached the place of occurrence then the lock was broken and Sunita was brought out of the room. But as stated above , the investigating officer did not say that he broke the lock of the room. Another important witness is the doctor, P.W.8 who examined Sunita on 17.12.1999 at 10.45 a.m. P.W.8, the doctor found her age about 15 years, but the same was not confirmed by the X-ray examination. The doctor found no external or internal injury on the person of the victim girl nor any sign of sperm on her cloth or body. The doctor opinion was that no definite opinion with regard to sexual intercourse can be given. 8. Thus after going through the evidence of the victim girl as also his father, Investigating Officer and the doctor, it appears that to cover up the distance between electrical shop to the garage, the victim girl in her statement went to say that she was taken by the accused Laxman Mahto on a motorcycle by closing her mouth and the motor cycle was being driver by some other person. In cross examination at para 15, she wanted to give a different story from that given in the fardbeyan.She stated that she was taken from the motorcycle by the accused and that another persons by holding her legs and hands and that another persons was also present and holding the accused in opening her panty. The entire statement given by her in court makes the entire prosecution case doubtful. Not a single witness, whether her father , examined as P.W.3 or the independent witness, P.W.1 and P.W2 stated in court that Laxman Mahto was helped by another person and that she was taken on a motorcycle by force. This improvement in the prosecution case which are not supported by the doctor, P.W.8 or P.W.9 makes the entire prosecution case doubtful. 9. Accordingly, the accused is entitled to get benefit of doubt which is given to him. The accused Laxman Mahto is acquitted from the charges leveled against him giving the benefit of doubt. The conviction dated 31.2.01 and order of sentence dated 6.8.01 passed by Sri Sarju Prasad, Sessions Judge, Godda is set aside. 9. Accordingly, the accused is entitled to get benefit of doubt which is given to him. The accused Laxman Mahto is acquitted from the charges leveled against him giving the benefit of doubt. The conviction dated 31.2.01 and order of sentence dated 6.8.01 passed by Sri Sarju Prasad, Sessions Judge, Godda is set aside. Since the accused is in bail, he is discharged from the liability of his bail bond.