JUDGMENT : Heard learned counsel for the appellant and learned counsel for the State. 2. The instant Criminal appeal has been preferred against Judgment of conviction and order of sentence, both dated 12.12.2003, in Sessions Trial No.08 of 2003, passed by the learned Addl. District & Sessions Judge, Fast Track Court-II, Jamshedpur, whereby the sole appellant, Dukhi Ram Hansda has been convicted for the offence punishable under Section 376 of the Indian Penal Code and awarded rigorous imprisonment for seven years. The instant Criminal Appeal has been preferred on 30th January, 2004, which was admitted on 23.04.2004 and prayer for bail of the appellant was refused and subsequently the same was considered and allowed on 10.02.2005 and since then the Criminal Appeal is pending before this Hon'ble Court. 3. The brief facts of the prosecution case is, on the basis of the statement of the informant, Huding Hembram aged about 25 years, who was working as a labour under one Contractor, Bablu Babu at Aambagan, Sakchi. On 01.07.2002 at about 5 P.M., she left Tata for her house, at Village Bhursadih by 407 bus and got down at Gitilata Chowk, which is situated at a distance of 2 K.M. from her village. It is alleged that, while she was going to her home, the accused/appellant started chasing her, caught-hold and dragged her towards the bushes. She made forceful protest and tried to escape but the accused/appellant was stronger, who succeeded in lifting her and caught her wrist and dragged her near the bush and thrashed her on the ground. The accused /appellant first of all, bite on her cheek and started undressing her blouse and molesting her breast. It is alleged by the prosecution, that she raised hulla and her mouth was gagged by the accused/appellant. Her undergarment was also undressed, she was forcibly committed rape by the accused/appellant. It is further alleged, that she was begging, but the accused/appellant did not care and mercilessly committed rape upon her. It is further stated by the prosecution, that the sister of the informant, namely, Bijo Hembram (P.W.4), who got down from another bus, was going ahead, but after hearing the noise of weeping, she came running to her (informant), but before her arrival, the victim/informant has already been raped and the accused fled away by taking help of darkness. It is further stated by the prosecution, that the sister of the informant, namely, Bijo Hembram (P.W.4), who got down from another bus, was going ahead, but after hearing the noise of weeping, she came running to her (informant), but before her arrival, the victim/informant has already been raped and the accused fled away by taking help of darkness. Thereafter both the sisters went to their house, at Bhursadih and stated the entire episode to their mother, Rukmani Devi (P.W.5) and brothers, Mutra Hansda, Baburam Hembram and Surai Baskey. Subseqently, they proceeded to Potka Police Station to inform the matter, in the way the Sub Inspector of Police of Potka Police Station, J. K. Thakur met them and recorded the statements of the informant at 10 P.M., on 01.07.2002. On the basis of the 'fardbeyan' of the informant, the Police Registered Potka P.S. Case No.46 of 2002 (dated 01.07.2002), under Section 376 of the Indian Penal Code. 4. After investigation, the Police submitted charge-sheet vide No.42 of 2002 dated 18.08.2002, under Section 376 of the Indian Penal Code. 5. Cognizance of the offence has been taken and the case has been committed to the Court of Sessions, on 16.12.2002. 6. The charge has been framed against the accused/appellant under Section 376 of the Indian Penal Code on 04.03.2003, the appellant pleaded his innocence and thus, he was put under trial. 7. The prosecution in order to prove its case has examined altogether 8 witnesses and also adduced a number of documentary evidence. 8. Mutra Hansda has been examined as P.W.1. He is a hearsay witness and proved his signature, on the seizure-list of the cloth of informant/victim, as Exhibit-1 and on the seizure-list of the cloth of the accused/appellant, as Exhibit-2. During cross-examination, this witness has stated, that they were not in talking term with the accused/appellant, Dukhi Ram Hansda and prior to occurrence, they had some quarrel and enmity with the appellant/accused, Dukhi Ram Hansda. 9. Surai Baskey has been examined as P.W.2. He is also a hearsay witness and during his cross-examination, he has claimed to be an eye-witness to the occurrence and further stated, that at 7.15 P.M., the informant, Huding Hembram got down from the vehicle along with her elder sister (P.W.4- Bijo Hembram). Ms. 9. Surai Baskey has been examined as P.W.2. He is also a hearsay witness and during his cross-examination, he has claimed to be an eye-witness to the occurrence and further stated, that at 7.15 P.M., the informant, Huding Hembram got down from the vehicle along with her elder sister (P.W.4- Bijo Hembram). Ms. Amrita Banerjee, learned counsel for the appellant has submitted that P.W.2 (Surai Baskey) has claimed himself in examination-in-chief, to be hearsay witness, but during his cross-examination, he has claimed himself to be an eye-witness to the occurrence, which cannot be relied upon. Further-more, the credential of P.W.2 (Surai Baskey) is highly doubtful, as this witness has stated, that at around 7.15 p.m., victim, Huding Hembram got down from the vehicle along with her elder sister (P.W.4 Bijo Hembram), but from the fardbeyan and her deposition, as P.W.6 (Huding Hembram) has never said, that she got down from the vehicle along with her elder sister and as such, credential of P.W.2, who is a hearsay witness and claimed to be an eye-witness, is highly doubtful, as such, cannot be relied upon. Learned counsel for the State, Mr. Anand Kumar Pandey, Additional Public Prosecutor has submitted that from record of the case P.W.2 is a hearsay witness. 10. Baburam Hembram has been examined as P.W.3. He is the brother of the victim and also a hearsay witness. 11. Bijo Hembram, elder sister of the victim has been examined as P.W.4. This witness has stated that, while she was coming to her village, she heard someone's crying and she saw one male fleeing away. Subsequently, she realized that the voice of crying is of her own sister, Huding Hembram. Thereafter she went there and saw her sister (P.W.6) crying. The Victim (P.W.6) disclosed, that the accused/appellant has committed rape against her. Thereafter they went to their house and disclosed the entire story to their mother and brother. Subsequently, they were going to the Police Station. During cross-examination, this witness has stated, that she was ahead of her sister (P.W.6) and she (P.W.6- Huding Hembram) got down from bus after 5 minutes of this witness. She has further stated during cross-examination, that she took ten minutes in arriving to the place of occurrence. None of the clothes of her sister (P.W.6) were torn nor she could say, as to whether, her (P.W.6) blouse was opened or not. She has further stated during cross-examination, that she took ten minutes in arriving to the place of occurrence. None of the clothes of her sister (P.W.6) were torn nor she could say, as to whether, her (P.W.6) blouse was opened or not. She has further stated, that she saw the mark of injury upon the body of her sister (P.W.6) and her (P.W.6) bangles were also broken. The Sub Inspector of Police has also seized the broken bangles from the place of occurrence. She has admitted, that her family had enemity with the appellant/accused, Dukhi Ram, with respect to dispute over a pond. Ms. Amrita Banerjee, learned counsel for the appellant has submitted, that evidence of P.W.4 (Bijo Hembram) is not worth reliable, as this witness was ahead of the victim. She took ten minutes to reach the place of occurrence. A person, who is ahead of victim cannot hear the sound of crying, if she has gone up-to a distance. Further-more, this witness has not identified the person, who fled away even though, the person was co-villager and as such, her statement given in the Court is not worth reliable. Learned counsel for the appellant has further submitted, that the statement of P.W.4 (Bijo Hembram) is also not reliable, as this witness has stated, that she has not seen the cloth of the victim to be torn and could not remember as to whether her blouse was open or not. She has categorically stated, that the broken bangles were recovered by the Police officer at the place of occurrence. Police officer has been been examined as P.W.8. He has not stated anything about this fact nor has seized the broken bangles from the place of occurrence. Thus, learned counsel for the appellant has submitted, that statement of P.W.4 (Bijo Hembram) is not reliable and cannot be relied upon, for convicting an innocent person. Mr. Anand Kumar Pandey, learned Additional Public Prosecutor appearing for the State after perusing the records, has fairly submitted that seizure of broken bangles is not on record. 12. Rukmani Devi @ Jhari Hembram, mother of the victim, has been examined as P.W.5. She is also a hearsay witness, and stated that she has not seen the occurrence, rather in Para-11 of her cross-examination, she has stated that blouse and sari of the victim was torn. 12. Rukmani Devi @ Jhari Hembram, mother of the victim, has been examined as P.W.5. She is also a hearsay witness, and stated that she has not seen the occurrence, rather in Para-11 of her cross-examination, she has stated that blouse and sari of the victim was torn. Her (victim) glass bangles were also broken, but has not sustained any injury because of broken bangles. She has further stated that the victim has sustained injuries on her back and waist. She has further stated, in Para-12 of her cross-examination, that Huding (victim) has disclosed before the Sub Inspector of Police, that her (Huding) bangles were broken and she (Huding) has sustained injuries. She has further stated in Para-13 of her cross-examination, that she has informed the village chowkidar and she along with chowkidar went to the Police Station. Ms. Amrita Banerjee, learned counsel for the appellant has submitted, that although P.W.5 (Rukmani Devi) @ Jhari Hembram, mother of the victim is a hearsay witness, but false implication of the appellant will be apparent from the statements made in Paras 11, 12 and 13 of her cross-examination, which are contradictory to the statement of the victim, who has been examined as P.W.6, as such, false implication of the appellant by the family members of victim cannot be ruled out. Mr. Anand Kumar Pandey, learned Additional Public Prosecutor appearing for the State has further submitted that P.W.5, mother of the victim, is a hearsay witness and as such, some minor contradiction and discrepancy in the evidence crept up, as has been recorded in Paras 11, 12 and 13 of her cross-examination but are not fatal for the prosecution case. There may be some minor contradictions in the evidence of P.W.5, but that has cropped up because of delay in trial and lapse of time. 13. Huding Hembram, informant and victim of the case has been examined as P.W.6. This witness has stated that she got down from the bus at 6.30 p.m. and she was followed by the accused/appellant, Dukhi Ram Hansda on bicycle, who caught-hold and thrashed her and when she shouted for help, her mouth was pressed. Her blouse was forcibly removed and undergarment was also removed and thereafter committed rape upon her. She has further stated, that after raising hulla, her sister came, at that time, accused/appellant fled away. Her blouse was forcibly removed and undergarment was also removed and thereafter committed rape upon her. She has further stated, that after raising hulla, her sister came, at that time, accused/appellant fled away. She has further stated during her cross-examination, that accused/appellant, Dukhi Ram Hansda is a co-villager, whom she knew from her childhood. Dukhi Ram Hansda is a married man, having children. Dukhi Ram Hansda was coming on a bicycle. She has further stated in Para-13 of cross-examination, that on the date of occurrence, accused/appellant was coming on bicycle in the same route. She has further stated in Para-14 of her cross-examination, that she walked two and half kilometres, when the occurrence was committed at a lonely place, where no house was situated, but she has further stated in Para-15 of her cross-examination, that bushes were standing at a distance of 20-25 hands, from the road and that is the only way to her villagers for in-grace and ex-grace. She has further stated in Para-17 and Para-18 of her cross-examination, that she raised hulla, but the accused caught-hold from her back. The accused dragged her and lifted her to a distance of 30 hands. She has further stated that she has not sustained any injury on the head or back because of thrashing done by the accused. She has further stated that hook of her blouse was broken because of pull made by the accused/appellant and she has sustained injury on her hand, as her bangles were broken. She has further stated in Para-10 of her cross-examination that her sister came after 20 minutes of her raising noise but the accused fled away with bicycle. She has further stated in Para22 of her cross-examination, that sign of rape was there at the petticoat and on her undergarment. Ms. Amrita Banerjee, learned counsel for the appellant has submitted, that the statement of the victim cannot be relied upon for convicting an innocent person. Ms. Amrita Banerjee, learned counsel for the appellant has further submitted, that the sister of the victim could not say about any damage of the hook of the victim's blouse rather the mother has said that the victim's clothes were torn and the sister of the victim, who has been examined as P.W.5 has said, that she could not remember, whether her clothes were torn or not, whether the same was damaged or not. She has further submitted, that none of the witnesses i.e. P.W.4 (sister of the victim) or P.W.5 (mother of the victim) has said about the injury caused, because of broken bangles, but this witness has stated during deposition, although in the 'fardbeyan', she (victim-cum-informant) has not said anything about the injury, because of broken bangles. Ms. Amrita Banerjee, learned counsel for the appellant has further submitted, that the Doctor (P.W.7), who has proved the injury report of the victim, has also not found any injury on the hand of the victim. The learned counsel for the appellant has further submitted, that sister of the victim (P.W.4) has not said about the bicycle of the accused/appellant who fled away after commission of crime and as such, vital contradictions in the deposition of P.W.4 (Bijo Hembram), P.W.5 (Rukmani Devi @ Jhari Hembram) and P.W.6 (Huding Hembram), as such, the testimonies of these witnesses are wholly unreliable for convicting the appellant, as the Doctor (P.W.7) has also not found positive finding of rape, on the basis of Pathological report also, which has been marked as Exhibit-3. Mr. Anand Kumar Pandey, learned Additional Public Prosecutor appearing for the State has fairly submitted, that from perusal of the records, it appears that Doctor (P.W.7) has not found any injury on the hand of the victim nor has found the positive sign of rape upon the victim, which is apparent from the record of the case. 14. Dr. Binod Kumar Choudhury has been examined as P.W.7. He is the medical officer, who examined victim (P.W.6-Huding Hembram), on 02.07.2002, aged about 18-19 years. On the basis of the pathological report, no positive finding of rape was found. Doctor has found pinpoint bruise over the left side of the cheek. Ms. Amrita Banerjee, learned counsel for the appellant has submitted, that pin-point bruise over the left side of the cheek cannot be caused by kissing. The learned counsel for the appellant has further submitted, that Doctor has not found any external or internal injury, related with the rape. Ms. Banerjee, in support of her submission, has submitted that, as per the prosecution case she (informant) has made protest, while she was being dragged on road to a distance of 20-25 hands, to the place of occurrence, but no sign of scratch or mark of injury was found on the leg or any part of the body. Ms. Banerjee, in support of her submission, has submitted that, as per the prosecution case she (informant) has made protest, while she was being dragged on road to a distance of 20-25 hands, to the place of occurrence, but no sign of scratch or mark of injury was found on the leg or any part of the body. Mother of the victim has found mark of injury on the back and waist of the victim, who has been examined as P.W.5, but neither the informant nor her sister (P.W.4-Bijo Hembram) has said anything. Doctor (P.W.7) has not found such injury. The victim (P.W.6) has also not stated about such injury and as such, entire prosecution case is unbelievable. Learned counsel for the State, Mr. Anand Kumar Pandey, Additional Public Prosecutor has submitted that victim has supported her version in the Court and as such, same is sufficient for conviction. 15. Bimal Kumar, Sub Inspector of Police has been examined as P.W.8. He is the Investigating officer of the case. He has received seizure-list of the clothes of the victim (P.W.6-Huding Hembram) from the officer-in-charge and has inspected the place of occurrence on 02.07.2002. This witness has explained the place of occurrence to be a place, where Khajur trees were found. This witness has further stated that the place of occurrence is dry and hard, but he did not found any special mark at the place of occurrence. The place of occurrence is surrounded by bushes all around. This witness has proved, the 'fardbeyan' recorded by the Officer-in-charge, J. K. Thakur, as Exhibit4 and two seizure lists in writing and signatures of the Officer-in-charge, as Exhibit-1/1 and Exhibit-2/1. The formal First Information Report has been marked as Exhibit-5. During cross-examination, this witness has stated, that for chemical examination, he has asked for the clothes, which have not been handed-over to him. This witness in Para-4 of his cross-examination has further stated that he has not verified the fact whether the victim has gone to Jamshedpur (Tata) for working or not. This witness in Para-5 of his cross-examination, has further stated, that P.W.1 (Mutra Hansda) has never claimed before him that he is an eye-witness to the occurrence. Ms. Amrita Banerjee, learned counsel for the appellant has submitted, that as per the evidence, place of occurrence is hard and dry land surrounded by bushes of 'khajur'. This witness in Para-5 of his cross-examination, has further stated, that P.W.1 (Mutra Hansda) has never claimed before him that he is an eye-witness to the occurrence. Ms. Amrita Banerjee, learned counsel for the appellant has submitted, that as per the evidence, place of occurrence is hard and dry land surrounded by bushes of 'khajur'. If the lady (victim) is dragged forcibly by the appellant, as alleged by the prosecution, then she must have sustained some injury, but the Doctor has not found any such injury i.e. injury report (Exhibit-3). The Investigating Officer has inspected the place of occurrence, on the very next day i.e. 02.07.2002, but did not found any remarkable thing at the place of occurrence. The learned counsel for the appellant has submitted, that Investigation officer in Para-4 of his cross-examination stated that he did not verify the fact of victim (P.W.6) about going to Tata to work under a contractor. The learned counsel for the appellant has further submitted, that the appellant has wrongly been convicted by the learned trial court, on the basis of perverse finding. There is no material on record to convict the appellant. The learned counsel for the appellant has submitted, that the Investigating officer being Sub Inspector of Police has not taken recourse of provisions laid down under Section 53 Cr.P.C. nor the accused could be medically examined to ascertain the fact of commission of offence by the accused. Ms. Amrita Banerjee, learned counsel for the appellant has submitted, that there is vital discrepancy in the evidence of P.W.4 (Bijo Hembram) and the victim (P.W.6-Huding Hembram). P.W.4 has not identified the accused nor has said that the accused was having bicycle, who fled away, whereas P.W.6 has categorically stated that the accused was having bicycle, who was coming behind her. The learned counsel for the appellant has further stated, that P.W.6 has stated the accused was fleeing away with the bicycle. P.W.4 (Bijo Hembram) witnessed the accused fleeing away, being a co-villager neither identified, nor named, nor said that the accused was fleeing away with bicycle. The evidence of P.W.4 and P.W.6 are contradictory to each other, as such, cannot be relied upon for convicting the appellant. Ms. P.W.4 (Bijo Hembram) witnessed the accused fleeing away, being a co-villager neither identified, nor named, nor said that the accused was fleeing away with bicycle. The evidence of P.W.4 and P.W.6 are contradictory to each other, as such, cannot be relied upon for convicting the appellant. Ms. Banerjee, learned counsel for the appellant has further submitted, that the medical report completely belies the prosecution case and as such, the impugned judgment of conviction and order of sentence is bad in law and is fit to be set aside by this Hon'ble Court. Learned counsel for the appellant has further submitted that the learned trial court has convicted the appellant on the basis of the perverse finding. The Court below has not scrutinized the evidence of P.W.4 and P.W.6 meticulously and has passed the order in a mechanical manner. The learned counsel for the appellant has further submitted, that it is a case where an innocent person has been falsely implicated in this case because of dispute with respect to a pond and as such, the judgment of conviction and order of sentence is not sustainable in the eyes of law. Mr. Anand Kumar Pandey, learned Additional Public Prosecutor has vehemently argued in support of the impugned judgment of conviction and tried to convince this Court for upholding the impugned judgment of conviction and order of sentence. 16. Having heard Ms. Amrita Banerjee, learned counsel for the appellant, learned counsel for the State, Mr. Anand Kumar Pandey, Additional Public Prosecutor and from perusal of the records i.e. First Information Report, charge, evidence and the exhibits, this Court is of the opinion that the prosecution has not proved its case beyond all reasonable doubt for the reasons, which are as follows :- (i) The Doctor has not found any mark of injury on the person of the victim; (ii) Doctor has opined on the basis of the pathological report that no positive sign of rape is there on the person of the victim. (iii) Doctor has not found any mark of injury on the hand, back or waist of the victim, as alleged by the victim (P.W.6) that she has sustained injury on her hand by broken bangles. Her mother (P.W.5) has said, that she saw injury on the back and waist of the victim. (iii) Doctor has not found any mark of injury on the hand, back or waist of the victim, as alleged by the victim (P.W.6) that she has sustained injury on her hand by broken bangles. Her mother (P.W.5) has said, that she saw injury on the back and waist of the victim. (iv) P.W.4, elder sister of the victim, was ahead of the victim and took 20 minutes to reach the place of occurrence, has not found any clothes of the victim to be torn or damage, whereas P.W.5 (Rukmani Devi), mother of the victim has found sari and blouse of the victim to be torn and the victim (P.W.6) has said that her blouse was also torn because of the pull, made by the appellant and the hooks of the blouse got damaged. All these witnesses are contradictory to each other. (v) The Investigating officer has not found any mark of injury on the person and as such, he has not requisitioned the victim before the Doctor for the injuries. As per prosecution case injuries ought to have been caused upon victim as per prosecution case victim was dragged, thrashed and raped on hard and dry surface. (vi) The Investigating officer has not found any special mark at the place of occurrence, which has been inspected by him, on the very next day i.e. 02.07.2002, which is rocky and hard place fully surrounded by bushes of khajur trees, which may cause hurt, if any person tries to cross the bushes to reach the place of occurrence or rape has been committed against woman forcibly be a man. 17. Under the aforesaid facts and circumstances of the case, this Court is of the opinion that the impugned judgment of conviction and order of sentence passed by the learned trial court, is fit to be set aside, because of the aforesaid reasons. 18. Accordingly, the judgment of conviction and order of sentence, both dated 12.12.2003, in Sessions Trial No.08 of 2003, passed by the learned Addl. District & Sessions Judge, Fast Track Court-II, Jamshedpur, is hereby set aside. 19. The appellant, who is already in bail, is discharged from the liability of the bail bonds. 20. Accordingly, the instant appeal stands allowed. 21. Let L.C.R. along with a copy of this judgment be sent to the court concerned for necessary action.