Judgment : 1. Heard Mr. A. K. Sahani, learned counsel for the appellant and Mrs. Laxmi Murmu, learned A.P.P. for the State. 2. This appeal is directed against the judgment of conviction dated 24.06.2004 and order of sentence dated 28.06.2004 passed by Mr. Arun Kumar, learned Additional Judicial Commissioner (F.T.C.), Ranchi in S. T. No. 473 of 2002, whereby and whereunder the appellant has been convicted for the offence under Section 376 I.P.C. and has been sentenced to undergo R.I. for 7 years as also to pay a fine of Rs. 500/-. 3. The prosecution story is in brief is that on 17.08.2001 in the evening at about 5 P.M., the informant was present in her house and her husband had gone to Ranchi for arrangement of money and the mother-in-law of the informant was also not present, when the appellant had entered into the house of the informant and bolted the door from inside. It has been alleged that thereafter she was subjected to rape. It has further been stated that the informant could not resist the aggression of the appellant as she was suffering from Malaria and the appellant had succeeded in his desire to establish physical relationship with the informant forcibly. It has further been alleged that when the husband of the informant returned back at 6 P.M. and told her to open the door, the appellant did not allow her and as a result the husband of the informant had to enter inside through the roof wherein the appellant was caught and he was ultimately handed over to the police. 4. On the basis of the aforesaid allegations, Sikidari P. S. Case No. 21 of 2001 was instituted. After investigation, charge-sheet was submitted under Section 376 I.P.C. and after the case was committed to the court of sessions, charge was framed under Section 376 I.P.C. to which the appellant pleaded not guilty. In course of trial, 6 witnesses were examined on behalf of the prosecution. 5. P. W. 1 – Laxmi Mahto has stated that the appellant was arrested by the police in his presence. He has also stated that the appellant had committed rape upon the wife of Bigan Mahto. 6. P. W. 2 – Mattan Mahto has also stated on similar terms to what has been stated by the P.W. 1. 7. P. W. 3 – Bigan Mahto is the husband of the informant. He has also stated that the appellant had committed rape upon the wife of Bigan Mahto. 6. P. W. 2 – Mattan Mahto has also stated on similar terms to what has been stated by the P.W. 1. 7. P. W. 3 – Bigan Mahto is the husband of the informant. He has stated that on 17.08.2001, he had gone to Ranchi since his wife was suffering from Malaria. At 6 P.M., when he returned home, he found that the door was closed from inside and in spite of his best efforts, the door could not be opened. This witness had thereafter climbed on the roof and on removing the tiles had entered inside wherein he had seen the appellant establishing physical relationship with the informant. He has further stated that the appellant was caught and thereafter his hands and legs were tied. On information to the police, the statements of the wife and this witness were recorded. This witness has identified the Fard Bayan which has been marked as Exhibit 1. In his cross-examination, he has stated that the appellant lives in the neighbouring village. He had also stated that his wife had disclosed that the appellant had entered into the house at 3 P.M. He has further stated that when this witness had entered, the appellant was in a naked condition. 8. P. W. 4 – Mina Devi is the informant who has supported the occurrence. She has stated that at 3 P.M., no one was in the house when the appellant had entered and by tying her hands and mouth with Gamchha had committed rape upon her. 9. P. W. 5 - Dr. Rajini Minz had examined the informant and had come to a conclusion that no positive evidence of rape was detected. 10. P. W. 6 – Bavesh Mahto is the neighbour of the informant who has stated that on the date of occurrence, he had seen the appellant being caught by Bigan Mahto and was kept confined by the others. 11. It has been stated by Mr. A. K. Sahani, learned counsel for the appellant that the entire facet of the case does not indicate that it was the appellant who had forcibly entered into the house of the informant and committed rape upon her. 11. It has been stated by Mr. A. K. Sahani, learned counsel for the appellant that the entire facet of the case does not indicate that it was the appellant who had forcibly entered into the house of the informant and committed rape upon her. Learned counsel has further submitted that there is substantial discrepancy between the Fard Bayan as well as the evidence of the informant recorded as P.W. 4, inasmuch as, although in the Fard Bayan she has stated that the appellant had entered into her house at 5 P.M., but in her evidence she had also disclosed that the appellant had come at 3 P.M. which has been corroborated by the evidence of the husband of the informant as P.W. 3. Learned counsel further submits that the informant had failed to show that there is an act of resistance on her part and the same has also not been stated anywhere by P.W. 3. It has therefore been concluded that since the entire incident would appear to be with consent on the part of the informant in establishing physical relation with the appellant, the present appeal should be allowed. 12. Mrs. Laxmi Murmu, learned A.P.P. has opposed the prayer made by the appellant and while referring to the evidence of P.W. 3 & P.W. 4 has stated that since door was closed from inside, P.W. 3 entered through the roof and had found the appellant committing rape upon his wife. 13. Although, six witnesses have been examined by the prosecution, but the only material witnesses appears to be P.W. 3, P.W. 4 & P.W. 5. P.W. 3 is the husband of the informant who has stated that he had gone to Ranchi and had returned at about 6 P.M. In spite of repeated efforts, the door was not opened and ultimately he had to enter his room through the roof where he had found the appellant as well as the informant in a compromising position. The informant who has been examined as P.W. 4 has stated about the resistance being given by her which resulted in the appellant tying her hands and mouth with a Gamchha. It also appears from the evidence of P.W. 3 that nothing has been disclosed about any sort of resistance put up by the informant regarding the physical advances made by the appellant. It also appears from the evidence of P.W. 3 that nothing has been disclosed about any sort of resistance put up by the informant regarding the physical advances made by the appellant. It further appears from the evidence of P.W. 4 that the appellant had entered into the informant’s house at 3 P.M. and immediately thereupon he is said to have committed rape upon her. But when the husband of the informant had come back from Ranchi at about 6 P.M., the appellant was still present and as per the evidence of P.W. 3, when he entered through the roof, both were found in a compromising position. The evidence of the doctor – P.W. 5 does not indicate any sign of rape having been found on the person of the informant. The evidences of P.W. 3 & P.W. 4 if carefully scrutinized would indicate that there was no aggression on the part of the appellant, and the physical relationship which was established by the appellant appears to be with tacit consent on the part of the informant. Even in the Fard Bayan, it has been stated that the incident had taken place at about 5 P.M. and there is substantial difference in the statement of P.W. 4, as she has stated that the incident had taken place after 3 P.M. which has not been corroborated by P.W. 3, the husband of the informant. 14. In the background facts and circumstances of the case as enumerated above, the act of the appellant cannot be concluded to be an act of rape committed against the informant and in view of the above, the judgment of conviction dated 24.06.2004 and order and sentence dated 28.06.2004 are hereby set aside. 15. This appeal is allowed. 16. The appellant is discharged from the liability of his bail bond.