JUDGMENT : 1. Heard, learned counsel for the appellant, Mr. Shree Nivas Roy and Mr. Suraj Mohan, Additional Public Prosecutor, on behalf of the State. 2. The instant Criminal Appeal is directed against the judgment of conviction dated 15.12.2003 and order of sentence dated 18.12.2003 passed by learned Additional Sessions Judge, Fast Track Court VII, Giridih in Sessions Trial No.102 of 1991, arising out of Dhanwar P.S. Case No. 41 of 1990 (G.R. Case No.395 of 1990), whereby the learned trial court has found the appellant guilty under Sections 376 and 323 of the Indian Penal Code. The learned Trial Court has awarded rigorous imprisonment for seven years and fine of Rs.2000/-, in case of default of fine further rigorous imprisonment for three months for offence committed under Section 376 of the Indian Penal Code. The learned Trial Court has also awarded sentence under Section 323 for rigorous imprisonment for three months and fine of Rs.500/- in case of default of fine further rigorous imprisonment one month. Both the sentences are directed to run concurrently. 3. The prosecution case is based upon the fardbeyan of victim, (whose name is not being disclosed) w/o Hussain Mian, on 02.03.1990 at 9 A.M. in presence of Choukidar (Heman Mahto) and mother Amna Khatoon and villagers Laljit Paswan and Sukhdeo Paswan, recorded by the officer in-charge, Dhanwar Police Station where the informant has alleged that, on previous night i.e. 01.03.1990, her son Md. Akhtar, aged about 10 years was sleeping with her, as her husband was working in Calcutta. Her son asked to help him in attending the call of nature, the informant took a lantern and went along with his son, who sat for attending the call of nature beside the road. The informant has further stated, that in the meantime Bandhan Mian, who is her cousin-in-law came from the north side and forcefully thrashed the informant on the road, inserted cloth in her mouth and after lifting the sari and petticoat above the waist, the informant tried to raise alarm/brawl, the appellant assaulted on her face by fist, which has caused injury below the left eye and thereafter the informant committed sexual intercourse with the informant forcefully, her son started crying because of fear and after committing the sexual intercourse the Bandhan Mian went to his house. The informant has stated, that the semen stain was found on the sari and petticoat and also the soil of the road has stained her cloth. The informant has stated, that after hearing the cry of her son, aforesaid named co-villagers came and whom the occurrence has been disclosed. The informant has claimed, that Bandhan Mian has forcibly committed rape upon her and also caused injury. 4. On the basis of the fardbeyan the police instituted Dhanwar P.S. Case No.41 of 1990 dated 02.03.1990 under Sections 376/323 of the Indian Penal Code and after investigation, the police submitted chargesheet vide No.60/90 dated 29.07.1990 under Sections 376/323 of the Indian penal Code against the sole accused, Bandhan Mian. The cognizance of the offence has been taken and the case has been committed to the court of Sessions vide order dated 24.04.1991. Charge has been framed against the appellant, Bandhan Mian on 30.07.1995, under Sections 376/323 of the Indian Penal Code, to which the appellant pleaded his innocence and thus he was put under trial. 5. The prosecution has examined altogether five witnesses to prove its case. The prosecution has also adduced and proved a number of documentary evidence, which have been proved and marked as exhibits. 6. Apart from documentary evidence P.W.-1, Sukhdeo Paswan (hearsay and seizure witness), P.W.-2, Laljit Paswan is also hearsay witness, P.W.-3, Md. Akhtar Ansari an eye witness to the occurrence and son of the informant, P.W.-4, Amna Khatoon, mother of the informant and a hearsay witness and P.W.-5, informant-cum-victim of the case (whose name is not being disclosed). 7. Signature of P.W.-1, Sukhdeo Paswan, on the seizure list has been proved and marked as Ext.-1, formal F.I.R. has been proved and marked as Ext.-2 and fardbayen has been proved and marked as Ext.-2/A. 8. After the recording of the statement of the appellant under Section 313 Cr.PC. on 07.03.2002. The defence has examined a formal witness as D.W.-1, Mohan Das, to prove the complaint petition No.330/89 and has been proved and marked as Exhibit-B and the certified copy of order dated 11.04.1991 in T.R. No.760/91 has been proved and marked as Exhibit-A. 9. After the recording of the statement of the appellant under Section 313 Cr.PC. on 07.03.2002. The defence has examined a formal witness as D.W.-1, Mohan Das, to prove the complaint petition No.330/89 and has been proved and marked as Exhibit-B and the certified copy of order dated 11.04.1991 in T.R. No.760/91 has been proved and marked as Exhibit-A. 9. After hearing of both the parties, the learned trial court has passed the impugned judgment of conviction and order of sentence against the same, the present appeal has been preferred by the appellant and the appeal has been admitted before this Hon’ble Court on 30.04.2004 and order of sentence has been suspended vide order dated 07.01.2005 by granting him bail. 10. Learned counsel for the appellant, Mr. Shree Nivas Roy, Advocate has submitted, that the impugned judgment of conviction and order of sentence is bad in law and the learned trial court without scrutinizing the evidence has convicted the appellant, ignoring the relationship and enmity between the parties. Learned counsel for the appellant has submitted that from perusal of the first information report, the appellant is cousin-in-law of the informant and both are residing besides each other and they are taking water from the same well. The learned counsel for the appellant has submitted, that in the present case none of the independent witnesses have been examined, on behalf of the prosecution nor the Chowkidar (Heman Mahto) has been examined, on behalf of the prosecution. Learned counsel for the appellant has further submitted, that the investigating officer of this case has not been examined nor the medical report or the Doctor has been examined, who has examined the victim, on the basis of police requisition and as such, non-examination of the investigating officer and the medical officer has caused serious prejudice to the appellant by not affording an opportunity to elucidate the fact from the mouth of the investigating officer and the doctor. Learned counsel for the appellant has submitted, that the medical report has deliberately not been brought on record, as the same belies the entire prosecution case, as the doctor has found no sign of recent sexual intercourse and the medical examination of the victim was done on the same day i.e. 02.03.1990 and that is the reason the prosecution has not brought the medical evidence on record, as the same was fatal for the prosecution. Learned counsel for the appellant has submitted, that from perusal of the first information report vivid description of rape has been given by the lady saying, that the appellant has penetrated his private part in her vagina. She has categorically stated, that semen has fallen on her cloth i.e. sari and petticoat but during deposition of the victim as P.W.-5, she has stated, that blood has stained her cloth during her cross-examination. Learned counsel for the appellant has submitted, that under such contradictory statement of the victim, the appellant cannot be convicted without having any material against him, in the background, when the appellant being a cousin-in-law of the informant with whom she has enmity and from the evidence of P.W.-3 Md. Akhtar Ansari, son of the informant, who has admitted that on the same day, there was a quarrel between the wife of the appellant and with him and subsequently led to the quarrel between the informant of the present case and the wife of the appellant. Learned counsel for the appellant has further submitted, that P.W.-1 and P.W.-2 are themselves contradictory to each other, they are the partition witnesses, interested on behalf of the prosecution. Learned counsel for the appellant has further submitted, that P.W.-1 Sukhdeo Paswan has submitted, that on hearing the brawl, he along with P.W.-2 Laljit Paswan went to the place of the occurrence and he is the signatory of the seizure list of stained petticoat and sari of the informant. When the evidence of P.W.-2 Laljit Paswan is taken into notice, Laljit Paswan has never said, that he went to the place of occurrence alongwith Sukhdeo Paswan P.W.-1 as stated by P.W.-1 Sukhdeo Paswan as his house is situated at a distance of the 70-80 degs (steps) from the house of the informant. This witness has admitted in paragraph 9 of his cross-examination, that in the litigation with the appellant, this witness was in the side of the informant, on the above premises. This witness has admitted in paragraph 9 of his cross-examination, that in the litigation with the appellant, this witness was in the side of the informant, on the above premises. Learned counsel for the appellant has submitted that none of the neighbours have been examined in this case and it is peculiar that two persons, who are residing at the distance 70-80 degs (steps) being interested witnesses have been examined in this case, as P.W.-1 and P.W.-2 but their evidences are themselves contradictory to each other, as the evidence of P.W.-2, Laljit Paswan never proved the presence of P.W.-1, Sukhdeo Paswan, at the place of occurrence, as claimed by P.W. 1, Sukhdeo Paswan, that he came along with Laljit Paswan (P.W. 2) at the place of occurrence after hearing the cry of the lady and her son. Learned counsel for the appellant has further submitted, that Md. Akhtar Ansari, son of the informant claimed to be an eye witness to the occurrence, has no credential. This witnesses has stated, that he was attending the call of the nature, his uncle Budhan Miyan came and thrashed his mother on the road and committed wrong with her. Learned counsel for the appellant has submitted that the natural conduct of the witness is that, if a person is doing something forcefully against her mother, he will either assault that person or will try to save his mother but this witness being son of informant has not taken any attempt. His evidence as P.W.-3 is contradictory to the evidence of P.W.-5, the victim and informant of the case. This witness has categorically stated, that in the morning he has some quarrel with wife of Budhan Miyan, owing to fetching of water from the well. Subsequently, his mother came and thereafter quarrel started between his mother and wife of Bandhan Miyan, for that occurrence no assault was made upon her mother nor any case has been filed from either of the side. This witness has further stated, that continuous quarrel was going on between the parties. This witness has been given suggestion by the defence in paragraph 4 during his cross-examination, whatever he has stated before the court has not been stated before the police nor any occurrence took place, as he has claimed before the court nor he has said before the police that Bandhan Miyan has committed rape upon his mother. This witness has been given suggestion by the defence in paragraph 4 during his cross-examination, whatever he has stated before the court has not been stated before the police nor any occurrence took place, as he has claimed before the court nor he has said before the police that Bandhan Miyan has committed rape upon his mother. Learned counsel for the appellant has submitted, that since the investigating officer has not been examined in this case, as such the serious prejudice has been caused to the appellant by not affording any opportunity to elucidate all the facts, which are relevant for the adjudication of the present case. Learned counsel for the appellant has further submitted, that Amna Khatoon, mother of the victim has been examined P.W.-4. She has claimed during her examination-in-chief, that youngest sister- in- law of the victim has informed her about wrong done by Bandhan Miyan against his daughter, who is unconscious at police station. This witness went to the police station and heard everything from her daughter. Learned counsel for the appellant has submitted, that Amna Khatoon has claimed herself to be a hearsay witness, who reached the police station after the informant reached their but from the perusal of the first information report, it appears that Amna Khatoon was one of the witness, who went alongwith victim to the police station and as such her (P.W.-4) credential is also not free from doubt. Learned counsel for the appellant has submitted, that this witness (P.W. 4) has categorically admitted during cross-examination that Bandhan Miyan is relative and they are residing in the same house and there is land dispute between the parties. 11. Learned counsel for the appellant has drawn the attention of this Court, towards the evidence of the informant-cum-victim of the case, who has been examined as P.W.-5. Learned counsel for the appellant Mr. Shree Nivas Roy has submitted, that the credential of the victim is doubtful, as she has exaggerated and try to develop her case by stating during examination-in-chief, that when she alongwith her son, who was to attain the call of the nature, she had lantern and lathi in her hand. She has further stated, that Bandhan Miyan came, thrashed her and climbed over her and sat on her thigh. Bandhan Miyan has inserted cloth in her mouth and committed rape upon her. She has further stated, that Bandhan Miyan came, thrashed her and climbed over her and sat on her thigh. Bandhan Miyan has inserted cloth in her mouth and committed rape upon her. The informant has claimed that after removal of her cloth, she raised hulla and thereafter, Bandhan Miyan assaulted her on cheeks. The semen fallen from Bandhan Miyan stained her cloth. The informant has stated, that on brawl raised by her, Laljit Paswan (P.W.-2) and Sukhdeo Paswan (P.W.-1) came there, whom she has disclosed about the incident and thereafter, took chowkidar with her, went to Dhanwar Police Station alongwith Laljit Paswan (P.W.-2), Sukhdeo Paswan (P.W.-1) and her mother (P.W.-4). Her fardbeyan was recorded and she put her thumb impression over the same and thereafter she was sent for medical examination, where the doctor has treated her. She has admitted during her cross-examination, that Bandhan Miyan is her brother-in-law and after one month of occurrence her husband came from Calcutta. She has further stated, that prior to this occurrence a case was instituted by her husband, Hussain Miyan against Bandhan Miyan, Suleman Miyan and wife of Bandhan Miyan. In the said case Sukhdeo Paswan, Haneef Miyan and Bandhu Paswan are witnesses. She has admitted, that her first marriage was contracted with Lato Miyan of Chachaidih, who died and thereafter with Abdul Miyan. From Abdul Miyan they have not been blessed with any child from the said wedlock and she has further stated that her son, Md. Akhtar Ansari has been born from her husband, Hussain Miyan. She has further stated, that her son Akhtar’s marriage was solemnized with daughter of Budhan Miyan and second marriage of Akhtar was solemnized at Takhtahi from the said wedlock Akhtar has one girl child. She has further stated, that she is the third wife of Hussian Miyan. She has stated, during her cross-examination, is contradictory to the statement of the Md. Akhtar Ansari, son of the informant, when this witness has stated that prior to this occurrence no quarrel took place with the wife of Bandhan Miyan in the evening nor there was any Panchayati with regard to any quarrel with the appellant. She has stated, during her cross-examination, is contradictory to the statement of the Md. Akhtar Ansari, son of the informant, when this witness has stated that prior to this occurrence no quarrel took place with the wife of Bandhan Miyan in the evening nor there was any Panchayati with regard to any quarrel with the appellant. She has further stated during her cross-examination, that when her son was attending the call of the nature, he had lathi in his hand and the lantern was with the informant and her son was at the distance of 2-4 steps, west of the informant. She has further stated, that before the occurrence took place, the victim along with her son raised brawl, and after one hour of brawl villagers assembled. She has further stated, that because of the sexual intercourse there was injury in her urinal track, back, knee from that blood was oozing, which stain her cloth, her bangles were broken, causing injury to the informant. The informant has stated, that after fardbeyan, sub-inspector has sent her before the doctor, whom she has shown her all the injuries and the blood stained cloth was handed over to the sub-inspector. She has further given a contradictory statement in paragraph 19 of the cross-examination that her husband is residing in Calcutta and the daroga has recorded the statement of her husband, who also came to the court in this case but today she came alone. The evidence of P.W.-5 is not a trustworthy witness. She has taken her chastity on doubt for falsely implicating this Bandhan Miyan with whom she has enmity, because of the fact that husband was present in the house as per cross-examination of this lady at paragraph 19 of her cross-examination, whose statement has been recorded by the police under section 161 Cr.P.C. but said husband has not been examined in this case. Learned counsel for the appellant has submitted, that the medical report, which belies the entire prosecution case has not been brought on record nor the doctor or the investigating officer or chowkidar has been examined in this case and in absence of any such material the impugned judgment of conviction and order of sentence is bad in law and cannot sustained in the eyes of law. 12. Learned counsel for the State, Mr. 12. Learned counsel for the State, Mr. Suraj Mohan, Additional Public Prosecutor has submitted, that the informant P.W.-5 victim of the case and her son Md. Akhtar Ansari, P.W.-3 has supported the case of prosecution and as such, the impugned judgment of conviction and order of sentence is well founded by the trial court. 13. Learned Counsel for the appellant, Mr. Shree Nivas Roy has submitted that, from perusal of the record, it is apparent that the investigating officer and Chowkidar have not been examined in this case, nor the medical evidence of the lady has been brought on record. 14. After hearing the learned counsel for the appellant Mr. Shree Nivas Roy and learned counsel for the State Mr. Suraj Mohan, Additional Public Prosecutor and from perusal of the record that is the F.I.R., charge, deposition of five prosecution witnesses, three Exhibits, statement of the appellant under Section 313 Cr.P.C. and the defence witness, this court has gone through the material and considered the same. It is a case, which was instituted on 02.03.1990, for occurrence committed in the night of 1-2/03/1990 and the victim was examined by Doctor on 02.03.1990, on the basis of police requisition, but the medical report is in the case diary and has not been brought on record nor exhibited in this case. This court exercises its jurisdiction under Section 172 Cr.P.C., which explained that any criminal court may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. It has also been held by the Hon’ble Supreme Court in the case as reported in 2009 (4) JCR (SC) 142; Md. Ankoos & Ors. v. The Public Prosecutor, High Court of A.P. that criminal court can use case diary in aid of enquiry or trial but cannot be used as an evidence. From perusal of the injury report issued by the Doctor, on the examination of the victim on 02.03.1990 he has categorically stated, that no recent sign of sexual intercourse was found. Doctor has found one abrasion below the left eye of the informant. From perusal of the record, it appears, that enmity was prevailing between the parties and both the parties are related and next door neighbours. The son of the informant P.W.-3 Md. Doctor has found one abrasion below the left eye of the informant. From perusal of the record, it appears, that enmity was prevailing between the parties and both the parties are related and next door neighbours. The son of the informant P.W.-3 Md. Akhtar Ansari has admitted, that there was a quarrel between wife of Bandhan Miyan (appellant) and this witness, which was ultimately culminated between his mother and wife of Bandhan Miyan and that quarrel took place because of fetching of water from the common well. The non-examination of the investigating officer in such cases, like the present one, is causing serious prejudice to the appellant, as the appellant had no opportunity and to cross-examine the investigating officer to elucidate the facts from the investigating officer. Non-examination of the chowkidar or any co-villager, resident of nearby of the informant and the appellant, is also important for the present case and the investigating officer has not tried to collect the material by taking statement of such witnesses, who are residing next door to the informant and the appellant. The conduct of P.W.-3 having lathi in his hand, as stated by P.W. 5 victim, but not stated in her fardbeyan or by the witness P.W.-3 Md. Akhtar Ansari in his deposition before the court, seems to be contradictory and an attempt of the informant to develop and exaggerate her case. If the version of the lady is taken to be true, then the conduct of the son, Md. Akhtar Ansari, aged about 10 years, at the time of occurrence having lathi in his hand did not seems to be natural conduct, as Akhtar has never tried to save his mother nor tried to assault the appellant, who was committing rape upon his mother against her will, on the road in front of their house, where this witness was sitting to attend call of the nature at a distance 2-4 steps from the place of occurrence, as stated by the informant P.W.-5 herself. This Court is also of the opinion that during the statement of the appellant under section 313 Cr.P.C. particularly question no.3, he has categorically stated, that he has been falsely implicated because there is a quarrel between his sister- in- law, that is the informant and his wife and that is the reason he has been falsely implicated. This Court is also of the opinion that during the statement of the appellant under section 313 Cr.P.C. particularly question no.3, he has categorically stated, that he has been falsely implicated because there is a quarrel between his sister- in- law, that is the informant and his wife and that is the reason he has been falsely implicated. From perusal of the record, it appears that the statement of informant-cum-victim P.W.-5 during fardbeyan given by her before the police is also contradictory to the evidence of P.W.-3, son of the informant. The blood stained or semen stained sari and petticoat have not been brought on record nor the medical report has been brought on record. From the evidence of P.W.-5, victim lady, it appears that in the first information report, where she has alleged that cloth, that is sari and petticoat has been removed up to her waist, even then semen of the appellant has stained the cloth of the victim seems to be improbable story and this witness P.W.-5 has herself said during cross-examination, that blood has stained her sari and petticoat, which was oozing from her urinary tract after commission of the rape by the appellant. These two versions are contradictory to each other and if the same is conjointly read with the injury report of the doctor, which has not been brought on record, where the Doctor Manju Jha has categorically stated that no recent sexual intercourse has been found, there appear vital contradiction. Such vital contradictions and attempt of the prosecution not to bring the medical evidence on record speaks in volume. Further, for convicting a person under heinous crime, strict proof is required. In the present case except the oral testimony of the victim no material has been brought on record to corroborate the allegation levelled by the victim, rather injury report belies the prosecution case. Considering the above discussion made here, this Court is of the opinion, that appellant be acquitted, giving benefit of doubt from charge and conviction under Section 376 of the Indian Penal Code but his conviction under Section 323 I.P.C. is hereby upheld, as there is a sign of abrasion below the left eye of the informant. The learned Trial court has convicted the appellant under Section 323 of the Indian Penal Code and awarded rigorous imprisonment for three months and a fine of Rs. The learned Trial court has convicted the appellant under Section 323 of the Indian Penal Code and awarded rigorous imprisonment for three months and a fine of Rs. 500/- and in case of default rigorous imprisonment for one month. 15. Learned counsel for the appellant has submitted that appellant remained in custody for about 16 months during the trial and as such he has served out the sentence under Section 323 of the Indian Penal Code. 16. The appellant is directed to deposit the fine of Rs.500/- awarded by learned trial court within four weeks from the date of receiving a copy of judgment to the concerned trial court. 17. In the result, the impugned judgment of conviction dated 15.12.2003 and order of sentence dated 18.12.2003, passed by learned Additional Sessions Judge, Fast Track Court VII, Giridih, in Sessions Trial No. 102 of 1991, in connection with Dhanwar P.S. Case No. 41 of 1990, corresponding to G.R. Case No. 395 of 1990 is hereby modified and the appellant is acquitted of the charge and conviction under Section 376 of the Indian Penal Code by giving benefit of doubt and with a direction for payment of fine of Rs. 500/- as awarded by the learned Trial Court under Section 323 of the Indian Penal Code. 18. The appellant, who is on bail, is discharged from liability of his bail bond. 19. Accordingly, the appeal stands partly allowed. 20. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.