JUDGMENT : Heard learned counsel for the appellant, Mr. P.K. Mukhopadhyay and Mr. Rajesh Kumar Mishra, Addl. Public Prosecutor, appearing for the State. 2. The instant Criminal Appeal is directed against the judgment of conviction dated 13.1.2004 and order of sentence dated 14.1.2004 passed by the learned Additional District and Sessions Judge, Fast Track Court-III, Dhanbad in Sessions Trial No. 92 of 2003, arising out of Jharia P.S. Case No. 374 of 2002, corresponding G.R. Case No. 2920 of 2002, whereby the sole appellant, Munna Ravidass @ Robins Kumar has been convicted by the learned trial court for offence punishable under Section 376 of the Indian Penal Code and awarded rigorous imprisonment for seven years. 3. The prosecution case is based upon the written report submitted by Indradeo Paswan (P.W.6 father of the victim, whose name in not being disclosed), before the Officer In-charge, Jharia Police Station, on 5.11.2002, containing signatures of Indru Devi, Rekha Devi, Baiwati Devi and thumb impressions of Sumitra Devi, Aarti Devi, Rina Devi and Kanti Devi stating therein, that Indradeo Paswan is resident of Bhoga No. 5 and his wife had died ten years ago, leaving behind two daughters (including victim) and one son. The informant has further stated that his elder daughter (victim) is dumb, aged about 14 years and unable to speak. The informant has further stated, that house of Jai Lal Ravidas is situated in front of his house of the informant and Munna Ravidass @ Robins Kumar (appellant) son of Jai Lal Ravidas has committed rape upon his handicapped daughter, due to which victim has pregnancy of seven months, which is known to the entire resident of the Mohalla, panchayati was convened but Jai Lal Ravidas @ Prasad (father of the appellant) and Munna Ravidass (appellant) were not ready to obey decision of the panchayati and they also threatened to go anywhere. The informant has further stated that father of the appellant Jai Lal Ravidas is working in Bharat Coking Coal Limited and informant is a poor person as such, threatening has been given to him. On the basis of written report, police instituted, Jharia P.S. Case No. 374 of 2002 dated 6.11.2002, corresponding G.R. Case No. 2920 of 2002, under Section 376 of the Indian Penal Code. 4. On the basis of written report, police instituted, Jharia P.S. Case No. 374 of 2002 dated 6.11.2002, corresponding G.R. Case No. 2920 of 2002, under Section 376 of the Indian Penal Code. 4. During investigation, the Police recorded the statements of the witnesses and after investigation submitted charge-sheet vide No. 465 of 2002 dated 30.11.2002, under section 376 of the Indian Penal Code against the sole accused, Munna Ravidass @ Robins Kumar. The cognizance of the offence has been taken vide order dated 2.1.2003 and the case has been committed to the court of sessions vide order dated 1.2.2003. 5. The charge has been framed by the learned trial Court against the appellant, under section 376 of the Indian Penal Code on 8.4.2003 to which the appellant, Munna Ravidass @ Robins Kumar has pleaded his innocence and thus appellant was put under trial. 6. The prosecution in order to prove its case has examined altogether nine witnesses and adduced documentary evidences. Dr. S.P. Jha (who has examined the victim) has been examined as P.W.1, Indru Devi (aunt of the victim) has been examined as P.W.2, Soni Kumari (sister of the victim) has been examined as P.W.3, Aarti Devi (witness of panchayati) has been examined as P.W.4, Nuri Paswan (uncle of the victim) has been examined P.W.5, Indradeo Paswan (informant and father of the victim) has been examined as P.W.6, Dewanti Devi has been examined as P.W.7 and has been declared hostile by the prosecution, Ramdharan Singh (Sub-Inspector of Police and Investigating Officer of the case) has been examined as P.W.8, victim (whose name is not being disclosed) has been examined as P.W.9. 7. The prosecution has also adduced documentary evidence in support of the prosecution case. Injury report of the victim has been proved and marked as exhibit-1, written report with signature of the informant has been proved and marked as exhibit-2, endorsement of the Officer-Incharge on the first information report has been proved and marked as exhibit-3, fardbayan (written report) has been proved and marked as exhibit-4 medical report regarding age has been proved and marked as exhibit-5. 8. After closure of the prosecution evidence, appellant has been examined under section 313 Cr.P.C., on 15.12.2003, where appellant has denied the allegation levelled against him. Defence has not examined any witness in support of their case. 9. Learned counsel for the appellant, Mr. P.K. Mukhopadhyay assisted by Mr. 8. After closure of the prosecution evidence, appellant has been examined under section 313 Cr.P.C., on 15.12.2003, where appellant has denied the allegation levelled against him. Defence has not examined any witness in support of their case. 9. Learned counsel for the appellant, Mr. P.K. Mukhopadhyay assisted by Mr. S.K. Murti and Mr. Hemant Kumar Chakraborty advocates has submitted, that impugned judgment of conviction and order of sentence is bad in law and fit to be set aside. Learned counsel for the appellant has submitted, that victim is a dumb girl and she is not a minor. Learned counsel for the appellant has further submitted that victim has been examined as P.W.9, she has stated during cross-examination, that she (victim) has come to the court along with Indru Devi (aunt of the victim) and as per the direction of Indru Devi she has stated before this Court and she has categorically stated that Munna Ravidass @ Robins Kumar has not done anything with her. Learned counsel for the appellant has further submitted, that under such background appellant cannot be convicted under Section 376 of the Indian Penal Code and benefit of doubt may be granted in favour of the appellant. Learned counsel for the appellant has further submitted, that injury report (exhibit-1) of the victim suggest about the pregnancy, of seven months but it is onus of the prosecution to prove that such pregnancy was due to the physical relationship between appellant, Munna Ravidass @ Robins Kumar and the victim, which has not been proved by the prosecution. P.W.8 Ramdharn Singh, the Investigating Officer has categorically stated during cross-examination that no D.N.A test was conducted and only on the basis of supervision report and direction of Superintendent of Police, Officer-in-charge has submitted charge-sheet. Learned counsel for the appellant has further submitted that even though the victim was carrying pregnancy of seven months but investigation is not in accordance with law, as the appellant has not been examined under Section 53A Cr.P.C. and there is no material to prove that victim was pregnant by this appellant. Learned counsel for the appellant has further submitted that even though the victim was carrying pregnancy of seven months but investigation is not in accordance with law, as the appellant has not been examined under Section 53A Cr.P.C. and there is no material to prove that victim was pregnant by this appellant. Learned counsel for the appellant has further submitted that father of the victim has filed this case just to solemnize marriage of the appellant with his daughter a dumb girl, who has stated that age of the victim about 14 years but radiological examination of the victim which has been proved and marked as exhibit-5 suggest, that victim is of 17 years old, (plus minus two years). Learned counsel for the appellant has further submitted that P.W.6 informant and father of the victim, Indradeo Paswan has proved his signature on written report as exhibit-2 but during cross-examination he has categorically stated that what is written in the fardbayan, he does not know. Learned counsel for the appellant has submitted that informant is not knowing the content of F.I.R., on the basis of which appellant has been convicted. Learned counsel for the appellant has further submitted that P.W.2 is Indru Devi, who is a hearsay witness and aunt of the victim, has categorically stated that she heard about the occurrence from the victim. Learned counsel for the appellant has further submitted, that during cross-examination P.W.2 Indru Devi has admitted in paragraph 3 that her marriage was solemnized 25 years ago and at that time victim was a minor girl. On the basis of such submission learned counsel for the appellant has submitted, that considering the paragraph 3 of P.W.2 Indru Devi, whose marriage was solemnized 25 years ago and the evidence brought on record as exhibit-5 (the radiological report) where the age of the victim ascertained about 17 years. Learned counsel for the appellant has submitted, that considering the above evidence jointly the age of the victim is not 14 years and as such credential of the informant as P.W.6, Indradeo Paswan is highly doubtful, who has stated that age of her daughter is of 14 years. Learned counsel for the appellant has further stated, that P.W.3 Soni Kumari, is sister of the victim, who has categorically stated, that she heard about the occurrence from her elder sister (victim) that Munna Ravidass committed rape against her. Learned counsel for the appellant has further stated, that P.W.3 Soni Kumari, is sister of the victim, who has categorically stated, that she heard about the occurrence from her elder sister (victim) that Munna Ravidass committed rape against her. This witness has further admitted during cross-examination that victim in the previous month was missing from her house for three to four days. Learned Counsel for the appellant has submitted, that considering evidence of PW-3, Soni Kumari, the character of the victim is also not good and it cannot be said that it is Munna Ravidass who is responsible for pregnancy of the victim. Aarti Devi, another aunt of the victim has been examined as PW-4 and she got information about the occurrence from the victim and her family members. Learned counsel for the appellant has submitted that Aarti Devi, is a member of Panchayati. Nuri Paswan (uncle of the victim) has been examined as PW-5, who is hearsay witness and he got information about the occurrence from his wife. Learned counsel for the appellant has submitted that his evidence is not worth considering as he is a hearsay witness. P.W.7 is Devanti Devi, who has been declared hostile by the prosecution. Learned counsel for the appellant Mr. P.K. Mukhopadhyay has submitted that no paper of panchayati has been proved and only on the ground that victim was carrying pregnancy of seven months, appellant cannot be convicted. Learned counsel for the appellant has submitted that victim who has been examined as P.W.9 has completely exonerated the appellant from the charge under section 376 of the Indian Penal Code, when the victim has stated during cross-examination that whatever she is stating before the court, she is stating as per the instruction of her aunt Indru Devi, who came with her in the court, she has further stated that Munna Ravidass has not done anything with her. Learned counsel for the appellant Mr. P.K. Mukhopadhyay has submitted, that in this case appellant is entitled for benefit of doubt and may be acquitted from the conviction under section 376 of the Indian Penal Code. 10. Mr. Rajesh Kumar Mishra, learned Additional Public Prosecutor appearing for the State, has submitted that the impugned judgment of conviction and order of sentence is based on material available on record. Learned counsel for the State Mr. 10. Mr. Rajesh Kumar Mishra, learned Additional Public Prosecutor appearing for the State, has submitted that the impugned judgment of conviction and order of sentence is based on material available on record. Learned counsel for the State Mr. Rajesh Kumar Mishra, learned Additional Public Prosecutor has further submitted that exhibit-1 shows that victim is a minor girl and she was carrying pregnancy of seven months; Learned counsel for the State has further submitted that victim is a dumb girl and she has disclosed about the occurrence to her sister, aunt and father about the commission (sic-of?) rape against her by Munna Ravidass. Learned counsel for the State has submitted, that victim is a innocent, handicapped girl and her statement must be considered with caution and thus, the impugned judgment of conviction and order of sentence does not requires any interference by this Hon'ble Court. 11. Heard, learned Counsel for the appellant Mr. P.K. Mukhopadhyay assisted by Mr. S.K. Murti and Mr. Hemant Kumar Chakraborty Advocate and Mr. Rakesh Kumar Mishra, learned Additional Public Prosecutor for the State, perused the record, F.I.R., charge, deposition of the prosecution witness exhibit of the prosecution side and the statement of the appellant recorded under Section 313 Cr.P.C. and the impugned judgment of conviction and order of sentence, this Hon'ble Court is of the opinion that the argument placed on behalf of the appellant, has got same force as the victim who has been examined as PW-9 has categorically stated during cross-examination that she has come to the court along with her aunt Indru Devi and whatever she has stated in the court is on the direction of Indru Devi. Further she has stated that Munna Ravidass has not committed on anything with her. Apart from this the informant i.e. PW-7 (father of the victim) has admitted during cross-examination that whatever has been stated in the fardbayan (written report) he has no knowledge about the content of the same, which is signed by him and which is proved and has been marked as exhibit-2. Further the evidence of PW-1 Dr. S.P. Jha, who has issued injury report has been proved and marked as exhibit-1, has categorically stated that he cannot say that pregnancy of the victim has been caused by Munna Ravidass. The Investigating Officer Ram Dharan Singh P.W.8, has categorically stated during his cross-examination that no D.N.A. test of the pregnancy was conducted. Further the evidence of PW-1 Dr. S.P. Jha, who has issued injury report has been proved and marked as exhibit-1, has categorically stated that he cannot say that pregnancy of the victim has been caused by Munna Ravidass. The Investigating Officer Ram Dharan Singh P.W.8, has categorically stated during his cross-examination that no D.N.A. test of the pregnancy was conducted. Under such background this court is of the opinion that prosecution has not been able to prove the case beyond, all reasonable doubt against the appellant. The benefit of the doubt is given in favour of the appellant. There is no material which suggest that pregnancy of the victim has been caused by Munna Ravidass and not by any other person as there is no medical report, no D.N.A. test, as such no conclusion can be drawn and the benefit of doubt is given in favour of the appellant. The victim during the cross-examination has completely exonerated Munna Ravidass from committing anything with her. Under the aforesaid background the appellant is acquitted by giving benefit of doubt and conviction under section 376 of the Indian Penal Code is hereby set aside. 12. From the aforesaid discussion made above, this court is of the considered view that the impugned judgment of conviction dated 13.1.2004 and order of sentence dated 14.1.2004 passed by the learned Additional District and Sessions Judge, Fast Track Court-III, Dhanbad in Sessions Trial No. 92 of 2003, arising out of Jharia P.S. Case No. 374 of 2002, corresponding G.R. Case No. 2920 of 2002, is not sustainable in the eyes of law and thus, the impugned judgment of conviction and order of sentence is hereby set aside. 13. Accordingly, the instant appeal stands allowed. 14. The appellant, who is already on bail and as such, he is discharged from the liability of his bail bond. 15. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.