JUDGMENT : Heard, learned counsel for the appellant, Mr. S.P. Roy, Advocate and learned counsel for the State, Mr. Vinay Kumar Tiwari, learned Additional Public Prosecutor. 2. The instant Criminal appeal is directed against the judgment of conviction and order of sentence, both dated 20.01.2004, passed by the learned 2nd Additional Sessions Judge, Dumka, in Sessions Case No. 86 of 2003, whereby, the sole appellant has been convicted for the offence committed and punishable under Section 376 of the Indian Penal Code and awarded Rigours Imprisonment for five years. 3. The prosecution case, is based upon, written report submitted by the informant, Bachchi Devi (P.W.3) recorded by officer-in-charge, Jarmundi Police Station, Dumka, on 15.10.2001, wherein, the informant has stated, that on 12.10.2001 at about 2.00 P.M., she was going to cut grass in her Arhar field. She saw that the accused Prayag Rout resident of village – Babhandiha, was grazing his she buffalow and ox in her field. On protest made by the informant, the accused Prayag Rout dragged her into the Arher field and pressed her breast and committed rape against her. She raised hulla, then the accused fled away. Thereafter, informant returned to her home and narrated the occurrence to her husband and father-in-law, who disclosed the incident to villagers and subsequently written report was given at the police station. 4. On the basis of the written report of the informant, the Police has registered First Information Report bearing Jarmundi, P.S. Case No. 110 of 2001, dated 15.01.2001, under Section 307 of the Indian Penal Code against the accused Prayag Rout. 5. After investigation, the police has submitted charge sheet vide charge sheet no. 121 of 2002, dated 30.09.2002, under Section 376/511 of the Indian Penal Code against the accused Prayag Rout. 6. The cognizance of the offence has been taken vide order dated 17.10.2002 and the case has been committed to the Court of Sessions vide order dated 07.02.2003. 7. The learned trial Court has framed charge against the appellant, on 10.03.2003, under Section 376/511 of the Indian Penal Code, to which the appellant has pleaded his innocence and thus, he was put under trial. 8. The prosecution, in order to prove its case, has examined altogether six witnesses and also exhibited documentary evidence. 7. The learned trial Court has framed charge against the appellant, on 10.03.2003, under Section 376/511 of the Indian Penal Code, to which the appellant has pleaded his innocence and thus, he was put under trial. 8. The prosecution, in order to prove its case, has examined altogether six witnesses and also exhibited documentary evidence. Parmeshwar Mahato, (husband of the informant) has been examined as P.W.1, Niwas Mahato (brother-in-law of the informant) has been examined as P.W.2, Bachchi Devi (victim) has been examined as P.W.3, Subodh Yadav (father-in-law of the informant) has been examined as P.W.4, Kundan Kumar Singh (investigating officer) has been examined as P.W.5 and Dr. Pushpalata Tudu (Medical Officer) has been examined as P.W.6. Fardbeyan of the informant has been proved and marked as exhibit-1, Formal First Information Report has been proved and marked as exhibit-2, Requisition for Medical Test (carbon copy) has been proved and marked as exhibit-3 and Medical examination report of victim has been proved and marked as exhibit-4. 9. After closure of the prosecution evidence, the statement of the appellant has been recorded under Section 313 Cr.P.C., on 12.12.2003, to which the appellant has pleaded his innocence. Sole defence witness, Bijendar Rout has been examined as D.W.1. 10. After hearing learned counsel for the parties and on the basis of materials available on record, learned trial Court has passed the impugned judgment of conviction and order of sentence. Being aggrieved at and dissatisfied with the same, the present criminal appeal has been preferred by the appellant before this Hon’ble Court, assailing the impugned judgment of conviction and order of sentence. 11. Heard, learned counsel for the appellant, Mr. S. P. Roy, Advocate. Learned counsel for the appellant has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellant has drawn attention of this court towards, the framing of charge under Sections 376/511 of the Indian Penal Code and has submitted that the charge has been framed under lessor section but learned trial court has convicted the appellant under i.e. graver section 376 of the Indian Penal Code, which cannot sustain in the eyes of law, in view of Section 222 of the code of criminal procedure. Learned counsel for the appellant has further submitted, that the investigating officer has also submitted charge sheet under Section 376/511 of the Indian Penal Code and has admitted during his cross-examination as P.W.5 that, the Deputy Superintendent of Police has directed him to submit charge sheet under Section 376/511 of the Indian Penal Code, on the basis of the material collected during investigation. Learned counsel for the appellant has further submitted, that the P.W.1, Parmeshwar Mahato, husband of the informant, P.W.2 Niwas Mahato, brother-in-law of the informant and P.W.4, Subodh Yadav, father-in-law of the informant are hearsay witnesses. Learned counsel for the appellant has further submitted, that from the evidence of victim, Bachchi Devi (P.W.3), it appears that place of occurrence is situated besides the school, where students and teachers were present on the date of occurrence, which was Friday. Learned counsel for the appellant has further submitted, that P.W. 5, Kundan Kumar Singh, investigating officer of the case has categorically stated in paragraph-9 of his cross-examination that no injury was found on the person of the victim nor the victim has produced the Sari, Peticot and Blouse to the police. The Police officer has categorically stated that, he did not find any broken bangles at the place of occurrence. Learned counsel for the appellant has further submitted, that in the Medical evidence, which has been proved and marked as exhibit-4, the doctor has not given any finding with regard to the positive sign of rape, rather the doctor has stated that no mark of injury has been found over the body externally nor any mark of injury was found over the private part. The doctor has categorically stated that no spermatozoa was found as per the pathological report. Learned counsel for the appellant has further submitted, that learned trial Court has not taken judicial notice with regard to evidence of D.W.1, Bijendar Rout, who has categorically stated that, when quarrel has taken place between the informant and the appellant, he has not seen anything, which constitute an offence under Section 376 of the Indian Penal Code. Learned counsel for the appellant has further submitted, that D.W.1, Bijendar Rout has categorically stated that, no occurrence of rape has been committed and only on the basis of altercation between the parties, the false case has been instituted after three days of the occurrence. Learned counsel for the appellant has further submitted, that D.W.1, Bijendar Rout has categorically stated that, no occurrence of rape has been committed and only on the basis of altercation between the parties, the false case has been instituted after three days of the occurrence. Learned counsel for the appellant has thus submitted, that impugned judgment of conviction and order of sentence is not sustainable in the eyes of law fit to be set aside. 12. Heard, learned counsel for the State, Mr. Vinay Kumar Tiwari, Additional Public Prosecutor. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence has been passed by the learned trial Court on the basis of material available on record. Learned counsel for the State has further submitted, that P.W.3, victim of the case has supported her version made out in the fardbeyan, which has been proved and marked as exhibit-1. Learned counsel for the State has further submitted, that on the basis of police requisition which has been proved and marked as exhibit-3, the doctor has examined the victim and injury report has been proved and marked as exhibit- 4. Learned counsel for the State has further submitted, that doctor could not find any positive sign of rape, as the victim has been examined after three days of the occurrence. When this Court asked specific question to the learned counsel for the State that whether learned trial Court is justified in convicting the appellant under Section 376 of the Indian Penal Code as learned trial Court has framed charge under Section 376/511 of the Indian Penal Code against the appellant, learned counsel for the State, after perusing the order sheet of the learned trial Court dated 10.03.2003 regarding framing of the charge, shows his helplessness to the Court upon charge framed under Section 376/511 of the Indian Penal Code. Learned counsel for the State has vehemently argued the case and supported the impugned judgment of conviction and order of sentence. 13. Heard, learned counsel for the appellant, Mr. S.P. Roy, Advocate and learned counsel for the State, Mr. Learned counsel for the State has vehemently argued the case and supported the impugned judgment of conviction and order of sentence. 13. Heard, learned counsel for the appellant, Mr. S.P. Roy, Advocate and learned counsel for the State, Mr. Vinay Kumar Tiwari, learned Additional Public Prosecutor and perused the records, i.e. First Information Report, framing of the charge, evidence of six prosecution witnesses, four exhibits of the prosecution side and the statement of the appellant recorded under Section 313 Cr.P.C. as well as evidence of one defence witness and impugned judgment of conviction and order of sentence. This court has taken judicial notice with respect to the framing of charge against the appellant on 10.03.2003 under Section 376/511 of the Indian Penal Code. This Court has also perused the charge sheet filed by the police under Section 376/511 of the Indian Penal Code but astonished to see that conviction of the appellant has been passed by the learned trial Court under Section 376 of the Indian Penal Code, which is major Section then the charge framed under Section 376/511 of the Indian Penal Code. This Court has also scrutinized the evidence of P.W.3, who is victim of the case and compared the same with the evidence of P.W.5 Kundan Kumar Singh, who is the investigating officer of the case. This Court has found that Parmeshwar Mahato (P.W.1), who is husband of the informant, Niwas Mahato(P.W.2), who is the brother-in-law of the informant and Subodh Yadav(P.W.4), who is the father-in-law of the informant are hearsay witnesses. From the evidence of P.W.3, informant of the case, who has categorically stated that, the place of occurrence is situated beside the school and on the alleged date of occurrence, which was Friday the students and teachers were present in the school. The victim has categorically stated that, while committing rape by the appellant her bangles was broken and she has also sustained bleeding injury on her wrist, but the investigating officer (P.W.5), Kundan Kumar Singh has categorically stated, in paragraph 9 of his cross-examination, that he has not seen any injury on the person of the victim nor has found any broken bangles at the place of occurrence and the victim has not produced the sari, paticot and blouse before the investigating officer to establish that, informant was raped by the appellant at the place of occurrence, which was a arhar field. As such, this Court is of the opinion that, there is legal defect in the prosecution case apart from vital contradiction and infirmity in the evidence of the victim and as such, the appellant is entitled for benefit of doubt. Under the aforesaid background, as discussed above, this Court is of the opinion that the impugned Judgment of conviction and order of sentence, cannot sustain in the eyes of law. Accordingly, the impugned judgment of conviction and order of sentence, both dated 20.01.2004, passed by learned learned 2nd Additional Sessions Judge, Dumka, in Sessions Case No. 86 of 2003, arising out of Jarmundi, P.S. Case no. 110 of 2001 corresponding to G. R. case no. 912 of 2001, is hereby set aside by giving benefit of doubt. 14. In the result, the instant criminal appeal stands allowed. 15. The appellant, who is on bail, is discharged from the liability of his bail bonds. 16. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once. Appeal allowed.