JUDGMENT : Both these appeals arise out of the same judgment passed in Session Trial No. 407 of 1996 and appellants were tried together and convicted under Sections 316/34 as well as under Section 120-B of the Indian Penal Code, therefore, both the appeals are heard together and are being disposed of by this common Judgment. 2. The prosecution case in short is that fardbeyan of Ahilya Kumari, daughter of Sanatan Pradhan of Dhadkidih, P.S. Karaikela, District West Singhbhum was recorded on 04.05.1996 at 5.00 a.m. by S.I. R.Maharaj of Karaikela Police Station. The informant Ahilya Kumari in presence of co-villagers Ajay Pradhan, Ashok Pradhan, Ranjit Pradhan, Purushottam Pradhan, Jogeshwar Pradhan and maternal uncle Haripad Pradhan came to Police Station and gave fardbeyan that she had love affairs with co-villager Ganesh Pradhan which was continuing since last Durga Puja (in the month of October) and Ganesh Pradhan had promised to marry her. He was making intercourse as a result of which she became pregnant and started pressurizing for marriage. On 30.04.1996 at around 8.00 p.m. Ganesh Pradhan abducted her from her house and took her to villager Katua, P.S. Chakradharpur on a bicycle which is a place where the Sasural of Trilochan Pradhan, elder brother of Ganesh Pradhan, is situated. He kept her in the residence of Chaturbhuj Pradhan and Madhu Pradhan, who are sala (brother-in-law) of his elder brother Trilochan Pradhan. The further case is that on 01.05.1996, Wednesday, in the evening around 7.00 p.m. his lover Ganesh Pradhan took her on a richshaw to the hospital of Dr. Oly at Chakradharpur along with Trilochan Pradhan, Kaushik Pradhan, Tanaiya Devi, Madhu Pradhan and Chaturbhuj Pradhan. Dr. Oly refused to entertain them and then they returned back to the village. Next day i.e. on 02.05.1996 in the morning of Thursday, at around 8.00 a.m. they along with those persons and his lover visited to the residence of lady Dr. P.Kujur where Rs.1200/- was given for her abortion. Thereafter, the lady Doctor gave ten injections as a result of which she became unconscious. She is not aware what was done thereafter by the lady Doctor. Today i.e. on 04.05.1996 on Saturday morning, when she regained consciousness, she felt pain in her stomach and the waist area and the bleeding was going on. Thereafter, the lady Doctor gave ten injections as a result of which she became unconscious. She is not aware what was done thereafter by the lady Doctor. Today i.e. on 04.05.1996 on Saturday morning, when she regained consciousness, she felt pain in her stomach and the waist area and the bleeding was going on. Lady Doctor gave her some medicines and after keeping for the day long, the Doctor discharged her in the evening. She returned from Chakradharpur by rickshaw along with the above named persons and then around 7-8 p.m. she was left to her house and was threatened that if the matter would be reported to the Police, then they will kill her. Her father Sanatan Pradhan and other co-villagers are witness to this incident. Her statement was read over before the witnesses Haripad Pradhan and Rajni Pradhan and after finding it correct, she put her L.T.I. over it in presence of these witnesses. Thereafter, Bandgaon P.S. Case No. 20 of 1996 dated 04.05.1996 under Sections 316/493/34 of the Indian Penal Code was registered and a formal F.I.R. was drawn up with G.R. No. 127 of 1996. After investigation, charge-sheet was submitted against the accused-appellants under Section 316, 493, 34, 365, 366, 376, 109 and 120B I.P.C. 3. After commitment of the case, charge was framed upon both the appellants for the offence under Section 316/34, 365 and 120-B of the Indian Penal Code to which the appellants pleaded not guilty and claimed to be tried. Then the trial started. 4. To prove the charges, the prosecution altogether examined 10 witnesses in this case whereas no oral or documentary evidence were adduced on behalf of defence. 5. Out of the 10 prosecution witnesses, PW-2 Arjun Pradhan, PW-3 Haripad Pradhan, PW-4 Ajay Pradhan and PW-8 Ashok Pradhan became hostile and not supported the prosecution case whereas PW-5 Bijay Pradhan, PW-6 Jogeshwar Pradhan and PW-7 Umapad Pradhan were tendered by the prosecution. Therefore, PW-1 Sanatan Pradhan, father of the victim, PW-9 Ahilya Kumari, victim and PW-10 Dr. B.B. Topno had supported the prosecution case. 6. PW-1 Sanatan Pradhan, father of the victim, stated that Ahilya Kumari is his daughter aged about 19 years and she was about 15 years of age at the time of occurrence which is four years before the date of evidence. It was Tuesday night when her daughter fled away from the house. B.B. Topno had supported the prosecution case. 6. PW-1 Sanatan Pradhan, father of the victim, stated that Ahilya Kumari is his daughter aged about 19 years and she was about 15 years of age at the time of occurrence which is four years before the date of evidence. It was Tuesday night when her daughter fled away from the house. She was not found in the morning then he started searching her. He also searched for her in the Jaitpur where her maternal uncle is there but she was not found. On Friday evening at around 6.00 p.m. she was found near the Bari of his house. Her condition was not good. His wife informed him that the bleeding is going on and Ahilya had disclosed that she was taken by Ganesh Pradhan to Kotwa village and she was kept at the house of Madhu Pradhan from where she was taken before Dr. Oly but the Doctor refused to inject her. Thereafter, she was taken before Dr. P.Kujur who administered her injection resulting to her abortion. He further stated that he took her to Police Station on Bhaisa Gadi where the statement of her daughter was recorded. He recognized Ganesh Pradhan present in the court and other five accused persons. During cross examination he replied that he was not aware about this incident but he got information from her daughter. He also replied that during search he went only to the house of her maternal uncle and no other place. He also stated that the house of Ganesh Pradhan is near his residence. He also stated that he has not disclosed that his daughter had fled from the house to anyone in the village and he has stated the age of the girl nearly 19 years on his estimation. During cross examination on behalf of Dr. P.Kujur he replied that he was not knowing about the pregnancy of his daughter and denied the suggestion that his daughter has not stated the name of the Doctor as P.Kujur. 7. During cross examination on behalf of Dr. P.Kujur he replied that he was not knowing about the pregnancy of his daughter and denied the suggestion that his daughter has not stated the name of the Doctor as P.Kujur. 7. PW-3 Haripad Pradhan, maternal uncle of victim stated that he was present before the Police at the time of recording of statement of Ahilya Kumari on which she had put her thumb impression and he had also signed over to which he recognized and marked as Ext.-1 and thereafter this witness was declared hostile and was cross examined on behalf of the prosecution. 8. PW-9 Ahilya Kumari, victim, has stated that the incident relates to five years ago when Ganesh Pradhan had taken her from the house of her father on the pretext of treatment before the Doctor but she does not remember the place where she was taken. She further stated that she was taken to Chakradharpur before Kujur, a lady Doctor, and at that time she was feeling pain in her abdomen. She was not aware that any fetus was in her womb. At that time, she was not married. The lady Doctor injected and gave some medicine thereafter there was some bleeding. She was not aware that any abortion was caused or not. She also stated that once Ganesh had committed rape upon her in the night at his Khalihan but she had not disclosed it to anyone. She has further deposed that after treatment by the Doctor, when the bleeding continued then she informed her parents. Thereafter her maternal uncle Haripad Pradhan and his father went to Police Station where she gave her statement and put her thumb impression and Haripad had signed over it. She recognized Ganesh and claimed to recognize Dr. P.Kujur. During cross examination she stated that one year before her marriage has been solemnized but she has no issue as yet. She further replied that Ganesh Pradhan is his co-villager and he is brother by village relationship. She further stated that before the occurrence there was no conversation with Ganesh and Ganesh had never promised for marriage but he had committed intercourse with her at Khalihan which is situated at a distance of about 50 yards from her residence. At that time, she was alone at Khalihan and Khalihan of others are not situated there. She further stated that before the occurrence there was no conversation with Ganesh and Ganesh had never promised for marriage but he had committed intercourse with her at Khalihan which is situated at a distance of about 50 yards from her residence. At that time, she was alone at Khalihan and Khalihan of others are not situated there. At that time it was dark when Ganesh came there and without saying anything started committing rape but no alarm was raised. After the incident Ganesh threatened her not to disclose this fact to anyone else. Thereafter she returned to her residence. She was wearing Saree and Peticoat with marks of some stained and blood was there but it was not shown to anyone but she washed the clothes. This fact is stated before this court and was not informed to anyone. She further replied that she had stated before the Police that she had love affair with Ganesh. She also stated that the day she felt pain in her abdomen in the morning, the same night she was taken before the Doctor. 9. PW-10 Dr. B.B. Topno, Medical Officer, P.H.C., Marenghata Khunti stated that on 22.05.1996 he was posted at Sadar Hospital as Assistant Civil Surgeon and on that day at about 10.00 a.m. had examined Ahilya Kumari of village Dhatkidih, P.S. Keraikella, District Singhbhum West and found the following : General Examination : The girl is mentally sound and healthy. Weight – 43 K.G. Teeth – Upper Jaw 14, Lower Jaw 14 = 28 Secondary Sexual Character :- Breast developed. Axillary and pubic hair – Present L.M.P. – According to the girl her L.M.P. was Pus 1996. Per abdominal Examination – On inspection striae gravidarum was not there. On pulpation – Abdominal Swab uterus not pulpable. Examination of private part – Old tear of hymen. Uterus retroverted. Cirvix – Half inch long and patulous. OS closed and slit like orifice, erosion was there. No any discharge from cervix. Vagina – Specious Pathological examination report shows spermatozoa not detected. Epithelian cell were seen. Tropho zoint of Eyseotolite were seen. No R.B.C. was there. Urine examination of pregnancy shows negative. She is not pregnant. X-ray examination – Epiphysis of lower end of radius and ulna fused. Epiphysis of iliac crest not fused completely. Foetal part is not visible on X-ray. M.I. – A black mole on left shoulder. Epithelian cell were seen. Tropho zoint of Eyseotolite were seen. No R.B.C. was there. Urine examination of pregnancy shows negative. She is not pregnant. X-ray examination – Epiphysis of lower end of radius and ulna fused. Epiphysis of iliac crest not fused completely. Foetal part is not visible on X-ray. M.I. – A black mole on left shoulder. Opinion – According to clinical, radiological and pathological examination :- 1. The girl is about 18 to 19 years old. 2. She was not pregnant at the time of examination. He further submitted that on being asked by the Investigating Officer of this case, he had submitted another report on 22.07.1996 which reads as follows : She had features of abortion about 1 ½ -2 weeks back from the date of first examination on 22.05.1996 These two reports prepared by him bear his signatures, which was marked Ext. 2 and 2/1 respectively. During cross examination this witness replied that he had submitted the second report on the basis of his earlier report but the girl was not examined on 22.07.1996. Merely on perusal of his earlier report with respect to examination of private part, he has come to the subsequent finding. He also replied that if she was carrying four months fetus then it would have been visible even on x-ray as the baby would have taken shape. The aborted part would be visible to the lady who is being aborted. The information given by him in column examination of private part may be found in other cases also even if she is not pregnant. He also replied that he has not mentioned that the second opinion is based on his earlier report dated 22.05.1996. The second report was submitted after two months and at that time the girl was not produced before him but he has submitted second report merely on the basis of query made by the Police. 10. Counsel for the appellant Dr. Pamela Kujur assailed the judgment of the Court below on the ground that pregnancy of the victim was not proved so in absence of it cannot be held that offence under Section 316 of the Indian Penal Code has been committed. The Doctor has not been able to conclusively say whether actually she was pregnant or not. Pamela Kujur assailed the judgment of the Court below on the ground that pregnancy of the victim was not proved so in absence of it cannot be held that offence under Section 316 of the Indian Penal Code has been committed. The Doctor has not been able to conclusively say whether actually she was pregnant or not. He further submitted that as per allegation only injections were administered but no clinical examination was done to suggest that any medicine was given which caused abortion. No medical evidence is on record to suggest the commission of offence. He also submitted that the Investigating Officer of this case was not examined. It was also submitted that it has not been brought on record by the prosecution that under what circumstances, the Doctor was asked to submit second report although the victim was not present before that Doctor. Lastly he submitted that even the victim was not aware about her abortion so the conviction under Section 316 of the Indian Penal Code is not justified. 11. In the similar fashion learned counsel for the another appellant Ganesh Pradhan submitted that ingredients of Section 316 of the Indian Penal Code has not been proved as the victim and his father were not aware about the pregnancy of the victim and she was taken for the treatment. The evidences of prosecution have not been corroborated with the evidence of other witness as well as the evidence of victim is full of contradiction. He also submitted that the court below has committed mistake as he has disbelieved the story of rape and has acquitted the appellant under Section 376 of the Indian Penal code but at the same time the court believed half part of the story and convicted the appellant under Section 316 of the Indian Penal Code. Lastly he submitted that the fardbeyan was recorded at 05:00 a.m. on 04.05.1996 but there was delay in lodging the formal F.I.R. which was lodged at 08:00 a.m. which creates doubt. Since the Investigating Officer was not examined which is another lacunae in this case. 12. Learned A.P.P. appearing on behalf of the State submitted that the father of victim has supported the prosecution case and have corroborated the evidence of the victim. Since the Investigating Officer was not examined which is another lacunae in this case. 12. Learned A.P.P. appearing on behalf of the State submitted that the father of victim has supported the prosecution case and have corroborated the evidence of the victim. He further submitted that appellant Ganesh Pradhan was the main accused who had love affair with the victim and who had taken her to the Doctor for abortion and caused miscarriage, therefore, the Court below has rightly convicted the appellants. 13. Considering the above submissions of the parties and on perusal of the Lower Court Records and upon scrutiny of the evidences adduced on behalf of the prosecution it appears that both the appellants were convicted for the offence under Section 316/34 of the Indian Penal Code as well as under Section 120-B of the Indian Penal Code. Since P.W.2 Arjun Pradhan, P.W.3 Haripad Pradhan, P.W.4 Ajay Pradhan, and P.W.8 Ashok Pradhan became hostile and have not supported the prosecution version, although P.W.3 Haripad Pradhan, maternal uncle of the victim, who had accompanied them to the Police Station, has proved his signature on fardbeyan as Ext.1. P.W.5 Vijay Pradhan, P.W.6 Jogeshwar Pradhan and P.W.7 Umapad Pradhan were tendered by the prosecution. Therefore, the burden rest upon P.W.1 Sanatan Pradhan, P.W.9 Ahilya Kumari, victim and P.W.10 Dr. B.B. Topno to prove the prosecution version. P.W.1 is father of victim who has deposed mainly on the basis of the information given by her daughter P.W. 9. This witness after getting news of missing of his daughter started her search but only made inquiry with her maternal uncle. As per his deposition the victim went missing on Tuesday and was found on Friday evening at around 06:00 p.m. whereas the victim in his fardbeyan has stated that on Friday the lady Doctor has administered her some medicines and after keeping her for a day she was discharged and the accused persons have left to her residence at around 07-08:00 p.m. But in her deposition she has not stated that when she was treated by the Doctor and when she was discharged and on what time she was left at her residence. Therefore, the evidence of P.W.1 is not of much help to the prosecution case. P.W. 9 Ahalya Kumari has deposed before the Court which is a complete departure from her written statement given to the police on 04.05.1996. Therefore, the evidence of P.W.1 is not of much help to the prosecution case. P.W. 9 Ahalya Kumari has deposed before the Court which is a complete departure from her written statement given to the police on 04.05.1996. In her fardbeyan she has stated that she was having love affairs with appellant Ganesh Pradhan who has promised him for marriage and they continued intercourse as a result of which she became pregnant and she has pressurized him for marriage. But in her evidence before the Court she deposed that she was not aware about her pregnancy. In the fardbeyan she has stated that when she was before the lady Dr. Pamela Kujur Rs. 1200/-was given to her for termination of her pregnancy and thereafter the lady doctor injected ten injections as a result of which she became unconscious and thereafter what was done by the Doctor was not known to her. But in the examination-in-chief she only stated that lady Doctor injected and gave some medicine and thereafter bleeding was caused. During cross-examination she stated that Ganesh Pradhan has never promised her for marriage and he is her brother through the village relationship. She replied in the Court’s question that she was feeling pain in her abdomen area and Ganesh offered him for treatment before the Doctor and she became ready. She further deposed that she had not disclosed to the Doctor that she is pregnant and fetus is present. She also stated that she was not thinking of lodging the case but at the instance of mother of Trilochan, she had lodged this case. P.W.10 Dr. B.B. Topno has said that he examined the victim on 22.05.1996 and submitted the report but had not mentioned about the abortion of the victim. Although in the report he has reported that the victim girl is about 18-19 years old and she was not pregnant at the time of examination. This witness has stated that on the request of police he submitted the second report on 22.07.1996 only on perusal of examination of his earlier report he came to the subsequent finding that she had features of abortion about 1 ½ -2 weeks back from the date of first examination on 22.05.1996. He admitted that at the time of submission of second report the victim girl was not produced before him. He admitted that at the time of submission of second report the victim girl was not produced before him. From this evidence it would appear that the Doctor without physically examining the victim girl have submitted the second report, therefore, it also creates doubt. Therefore, in these circumstances it cannot be held that prosecution has able to prove the prosecution story beyond all reasonable doubts. Therefore, the conviction under Section 316/34 and 120-B of the Indian Penal Code cannot sustain in view of the discrepancies in the prosecution version and the doubts created. 14. Therefore, the part of the Judgment dated 27.02.2003 passed in S.T. No.407 of 1996 is set aside so far as these appellants are concerned. 15. In the result, both the appeals are allowed. Since both the appellants are on bail, so they are discharged from the liabilities of their bail bonds. 16. Let the Lower Court Records be sent back to the court concerned, forthwith.