Judgment : 1. When the matter is taken up, Mr. Aashish Kumar and Mr. Ritesh Kumar, who have filed fresh Vakalatnama appeared on behalf of the appellant. Mrs. Priya Shrestha, learned counsel for the respondent-State has also appeared. 2. Heard learned counsels for the appellant and the learned counsel for the respondent-State. 3. A report has come from the Judge-in-Charge, Nazarat Civil Court, Dumka in D.P.R. No.87/2020 dated 13.01.2020 intimating that the report called for was received by the father of the appellant. A report is also there from the Officer-in-Charge, Kathikund, Dumka, Police Station in Memo No.84 of 2020 dated 14.01.2020 informing that the appellant namely, Subastin Tuddu is residing at the concerned village. 4. This appeal is directed against the impugned Judgment of conviction dated 13th October, 2009 and the order of sentence dated 14th October, 2009 passed by the 5th Additional Sessions Judge (F.T.C), Dumka in Sessions Case No.185 of 2008 whereby the appellant has been held guilty under Section 376 of the Indian Penal Code and awarded rigorous imprisonment for seven years. 5. The case of the prosecution as narrated in the fardbeyan of the informant-victim or of the prosecutrix PW.5 dated 22.05.2008 is that on 20.05.2008, she had gone to the house of her cousin sister namely, Fulwati Tudu PW.4 at village Amgachi P.S. Kathikund, Dumka in order to see the fair. On 21.05.2008 at about 08.00 a.m. she had gone to ease herself near a pond in the west side of the village and when she was returning, Subastin Tudu of village Saldaha came there and forcefully caught her hand, dragged her to the bushes and had committed rape on her. When she was being pulled away by the accused, she had raised an alarm and the small children in the vicinity taking bath in the pond heard her voice. Thereafter, the children went to the village and informed the villagers and then Rajesh Soren (PW.2) and Abil Tudu (PW.3) came to the place of occurrence and caught Subastin Tudu who was escaping from the place of occurrence after committing rape upon the victim and brought him to the house of Pradhan of the village Amgachi. It was decided to hold a Panchayati, however, on call, the parents of the accused did not come so the Panchayati failed. 6. It was decided to hold a Panchayati, however, on call, the parents of the accused did not come so the Panchayati failed. 6. Thereafter, on the next day i.e. on 22.05.2008, she had given written information about the occurrence at the police station. 7. On the basis of the written information Kathikund P.S. Case No.21/08 under Section 376 of the Indian Penal Code was instituted. Investigation was commenced by Jai Prakash Toppo (PW.6) but on transfer handed over investigation to Arvind Kumar Singh. After the investigation, he had filed charge-sheet against the accused under Section 376 of the Indian Penal Code. Thereafter, cognizance was taken and commitment was made and the record was sent to the court of sessions. Accordingly, charges were framed under the above said section to which the appellant pleaded not guilty and claimed to be tried. Accordingly, trial was held; as many as six witnesses were examined and at the conclusion of the trial, the appellant was convicted and sentenced as aforesaid. 8. PW.5 who is the victim in her examination-in-chief has substantially supported the case of the prosecution as has been stated in her written report. She has narrated more or less in the same manner as to how on 21.05.2008 in the morning at about 8:00 am she had gone to ease herself near the pond on the west side of the village and thereafter, when she was coming back to home after easing herself she was caught hold by the appellant and dragged her under the tree and then raped her. She has also deposed that she had made alarm on which certain children who were also bathing at the pond had then gone to the village to call the villagers. Thereafter, on such information two persons Rajesh Soren (PW.2) and Abil Tudu (PW.3) had arrived and seen the accused fleeing and chased him and apprehended him. Thereafter they had gone to the Pradhan of the village Aamgachi and sought Panchayati. However the parents of the accused did not come hence she had then lodged the written report with the police on the next date i.e. on 22.05.2008. 9. Thereafter they had gone to the Pradhan of the village Aamgachi and sought Panchayati. However the parents of the accused did not come hence she had then lodged the written report with the police on the next date i.e. on 22.05.2008. 9. PW.2 is Rajesh Soren; he has deposed in his examination-in-chief that at the time of occurrence he was at home and he has narrated firstly what had transpired by the victim and then deposed that the children had called him and thereafter he had gone to see her. He has further deposed that he had seen that the victim was crying and on asking the victim had informed him that Subastin Tudu had done wrong deed (galat kaam) with her and show the accused. Thereafter, he and another person had chased and caught Subastin Tudu then they had gone to the Amgachi Pradhan for Panchayati but due to non-arrival of the parents of the accused, Panchayati could not be held and resulted in failure. A suggestion has been put regarding dispute with the uncle of Substin Tudu who is Gharjamai who used to live in their place which has been denied by PW.2. 10. PW.3 is Abil Tudu; in his examination-in-chief has more or less deposed in the same manner as PW.2. In his evidence PW.3 has in fact supported the prosecution story that they had gone to the place of occurrence, on the call of the children and had been informed by the victim there she was raped by the accused/appellant and had seen the appellant feeling away and that they had chased and apprehended him and took him to the Pradhan. 11. PW.4 is Fulwati Tudu; she is the sister of the victim and she has also briefly narrated about the incident and then said that the children had come to the house to call them. She deposed that she had gone first and thereafter, Rajesh Soren and Abil Tudu had gone to see what had happened. On seeing her, the accused had started fleeing away and on seeing him running PW2 and PW 3 chased him and caught hold of him and she has also deposed that no one had come to the Panchayati. She in her cross-examination deposed that Substin Tudu and the victim was standing at one place. 12. PW.1 is Dr. On seeing her, the accused had started fleeing away and on seeing him running PW2 and PW 3 chased him and caught hold of him and she has also deposed that no one had come to the Panchayati. She in her cross-examination deposed that Substin Tudu and the victim was standing at one place. 12. PW.1 is Dr. Pusplata Tudu; she was posted on 22.05.2008 as lady doctor, Sadar Hospital, Dumka and on that day at about 4:10 p.m. she had examined the victim PW.5 and prepared on injury report which is marked as Ext.1. The doctor, PW.1, found no external injury on the person of victim PW 5 neither any internal injury over her private parts. The hymen was old and ruptured and no foreign hairs were present. The veginal swab was taken and sent for microscopic examination. No spermatozoa was found and the report was given by Dr. S. Kumar, in-charge Pathologist Sadar Hospital, Dumka, X-ray was done of both knee, wrist joint and both iliac creast of the victim PW.5. Dr. M. Soren has given the report and according to the findings, the X-ray of both knee joint shows complete union of epiphysis of upper end of tibiya and fibula, X-ray of both wrist joint shows complete union of epiphysis of lower end of radius and ulna. Both hip bones shows union of illiac creast to illium under advance stage of union. According to the above findings, the doctor PW.1 could not give any definite opinion whether the victim PW.5 was raped or not and according to secondary sex character, number of teeth and x-ray report she was found to be 18 years old. 13. PW.6 is Jai Prakash Toppo, deposed that he had arrested the accused on 22.05.2008. In his cross-examination in para 6 he has deposed that he had not seized any clothes of the victim. He further in his cross-examination deposed that he was unable to reveal the distance of the place of occurrence from the relevant location. Arguments on behalf of the appellant 14. Learned counsel for the appellant has argued that this is a case which is full of weaknesses or lacunae and based on such deficient evidences the conviction of the appellant and corresponding sentence cannot be sustained. Arguments on behalf of the appellant 14. Learned counsel for the appellant has argued that this is a case which is full of weaknesses or lacunae and based on such deficient evidences the conviction of the appellant and corresponding sentence cannot be sustained. He also argued that in the evidence of the victim herself, she had not recognized the accused but was able to know him only by being informed of his name by her sister and her brother-in-law. Learned counsel for the appellant has also submitted that the accused or the appellant has not been unerringly identified by the victim herself. Learned counsel has also submitted that in this case though the victim is said to have been pulled and dragged away by the appellant to a place where bushes were present and then rape was committed on her but from the evidence of the doctor there is not even iota of any internal or external injury on her body or not even on her private parts. 15. Learned counsel for the appellant submitted that with such alleged incident where violence is involved, there should have been at least some injuries on the body of the victim and the absence of which only points out to the fact that no such offence was attempted by the accused that she was a major lady and doctor did not give any definite findings that rape had occurred. Learned counsel for the appellant has also argued that the offence is of the year 2008 and the mandatory requirement of Section 53A of the Cr.P.C., which came into operation in the year 2006 of examination of the accused by a doctor has not been done which is mandatory in nature. Since this has not been done the benefit of this lacuna will extend to the appellant. Learned counsel also says that along with this it has to be taken that in the evidence of the victim it has been revealed that semen stains had dropped on her clothes. Learned counsel also submits that if this was the case, it was most necessary that the accused had to be examined and the clothes of the victim also be seized and sent for examination to the forensic science laboratory but this was also not done and no report was forth coming also. 16. Learned counsel also submits that if this was the case, it was most necessary that the accused had to be examined and the clothes of the victim also be seized and sent for examination to the forensic science laboratory but this was also not done and no report was forth coming also. 16. Learned counsel has also submitted that this is also a drawback which would have gone to conclusively proving the guilt of the accused hence in the absence of the official report pertaining to such stains the benefit only accrues to the appellant. Learned counsel has also argued that in this case many witnesses who could have been made witnesses or who were important witnesses in the case have not been examined and this is only so because there was no case actually existing against the appellant. Learned counsel has argued that the children who went to call PW.2 and PW.3 have not been examined and their examination would have been useful to the prosecution but for their own interested reasons, the children were not made as witnesses. 17. In this line, learned counsel has also added on the other hand it is also far-fetched to think that after the children had gone to call the people from the village, the accused would still be waiting at the place of occurrence so that he would be apprehended at the place of occurrence and, therefore, the allegations are anywhere false. Learned counsel also submitted that the Pradhan of the Amgachi village had also not been examined who could also have testified as to whether anybody had gone to his place of residence to call him and he would then have been able to buttress the case of the prosecution. Learned counsel for the appellant submits that apart from these witnesses who were not examined the witnesses who are on record i.e. PW.2, PW.3 and PW.4 are either interested or related witnesses and therefore, conviction on the basis of the evidence on such evidences only should not be sustained and upheld. 18. Learned counsel for the appellant submits that apart from these witnesses who were not examined the witnesses who are on record i.e. PW.2, PW.3 and PW.4 are either interested or related witnesses and therefore, conviction on the basis of the evidence on such evidences only should not be sustained and upheld. 18. Learned counsel has also argued that the place of occurrence has not been proved and from the evidence of the I.O., himself he has very candidly admitted that he was not able to make out the distance from relevant locations in the village to the place of occurrence which only indicates that he had not gone to the place of occurrence to examine it and not even examined the bushes that is said to be there or seen any of the tell marks that should have been there. 19. Learned counsel, therefore, says that the place of occurrence has not been proved and therefore, even the manner of occurrence or the alleged offence cannot be said to have happened. 20. Learned counsel of the appellant has relied upon a judgment in the case of Joseph s/o Kooveli Poulo versus State of Kerala as reported in (2000) 5 SCC 197 and submitted that this is a case of rape in which there were no injuries on the body of the private part and this cited case is similar to the case on hand and therefore, he deserves similar benefit as extended in the cited case. 21. Learned counsel of the appellant has further relied upon a judgment in the case of Krishan Kumar Malik vs. State of Haryana as reported in (2011) 7 SCC 130 and submitted that this is the case in which the issue of Section 53A of Cr.P.C. was factored in the investigation and since the examination under Section 53A had not been done of the accused the benefit of acquittal was extended to the accused therein. Learned counsel for the appellant has submitted that his case also lies on a similar ground, therefore, he should also be extended the benefit of acquittal. Learned counsel for the appellant has submitted that his case also lies on a similar ground, therefore, he should also be extended the benefit of acquittal. As an alternative argument, learned counsel has also argued that based on these faulty evidences where there is only the accusation of the victim but nothing has been seized such as the clothes of the victim or the accused or any other incriminating article and no process under Section 53A Cr.P.C. done and also with no evidence of any internal or external injuries on the private parts of the alleged victim the case under Section 376 IPC cannot be sustained. At the most, it may be a case under Section 376/511 of the Indian Penal Code. Arguments on behalf of the State 22. Leaned counsel for the respondent-State, on the other hand, argued that it is already seen in the written report that has been read out and which is on record and also the evidence of the victim PW.5 which has also been placed on record in the evidence also read out that the victim has fully supported the prosecution case that she has more or less in verbatim supported the main particulars of the alleged incident which is a nutshell is that she had gone to ease herself near the pond and thereafter, she was waylaid by the accused/appellant who had dragged her away to the bushes and then he had committed rape upon her. She had then raised alarm on which certain children heard it and then the children had gone to call people from the village. In response to which the PW.2 & PW.3 had come there and she had disclosed to them that she had been raped and the accused or the appellant were seen fleeing away and then PW.2 & PW.3 have chased after the accused/appellant and had apprehended him. Learned counsel, therefore, says that she is fully consistent in her evidence, and therefore, she is a trustworthy and reliable witnesses. 23. Learned counsel has also submitted that the evidence of PW.2 & PW.3 cannot be ignored because their evidence is consistent with the written report of the victim wherein she has said that PW.2 and PW.3 had been called by the children after she had made alarm. 23. Learned counsel has also submitted that the evidence of PW.2 & PW.3 cannot be ignored because their evidence is consistent with the written report of the victim wherein she has said that PW.2 and PW.3 had been called by the children after she had made alarm. PW.2 and PW.3 have also revealed that the victim had disclosed to them that she was raped and then they had chased after the fleeing appellant and apprehended him. The evidence of PW.2 and PW 3 not only corroborates the evidence of the victim in the aspect of immediately arriving and being told by the victim what had transpired against her and about chasing the appellant and apprehending him. The evidence of PW.2 and PW.3 mutually support and corroborate each other. The evidence of PW.4 who is the sister is also helpful to the effect that she has said that the children had informed subsequent to the alarm made by the victim and thereafter, PW.2 and PW.3 had gone to see what had happened to the victim. 24. Learned counsel, therefore, says that based on the evidence of the victim who is reliable witness along with the evidence of PW.2 and PW.3 who were immediate witnesses along with the evidence of PW.4 the case against the appellant is fully sustainable and his conviction needs to be upheld. FINDINGS 25. Having heard both the counsels and having gone through the evidences and in the facts and circumstances of this case, it is seen that this is a case in which the victim is said to have come to the Amgachi village to basically see her sister and her brother-in-law and also to visit village fair. On the next day i.e. on 21.05.2008 when she had gone to the pond to ease herself, the occurrence had taken place when she was allegedly assaulted by the appellant. It would be rather unbelievable to hold that the victim would come to a village to visit her relatives and then manufacture a story of rape against the appellant for no reason except for the fact that something had actually occurred. The victim is not a resident of the village and, therefore, she has admitted that she did not know the name of the accused but was able to identify him. The victim is not a resident of the village and, therefore, she has admitted that she did not know the name of the accused but was able to identify him. If not she would otherwise have called him by name at the first instance, this also goes to sustain that she was new or unfamiliar to the Aamgachi village where she was assaulted. There is no evidence to demonstrate to the effect that the victim is otherwise unreliable or her evidence can be called into question. If she had been a victim who had manufactured the accusation then there would have been certain other circumstances behind such a concoction or manufacture but that is not the case because the incident had occurred. Based on the evidence of the victim itself, it is believable that assault had been made on the victim by the accused or the appellant. Thus almost always the incident of rape is not seen by anyone except that it occurs in which unfortunately the victim herself has the terrible deed done upon her. In this case also the actual assault may not have been seen by anyone but there are two persons who have immediately arrived on the scene and seen the victim crying and have been informed by the victim that she was raped by the accused or the appellant. The evidence of PW.2 and PW.3 go towards sustaining that an assault on the victim had taken place. PW.2 and PW.3 who had seen the accused fleeing away and caught hold of him. The evidence of PW.4 also to some extent indicates that something had occurred and that PW.2 and PW.3 then had gone to investigate and see for themselves what had happened and then they had seen and heard what had happened to the victim. Based on all the aforesaid, evidence of the doctor which does not say anything conclusive may not very useful to the prosecutrix. However, from the aforesaid reasoning it is not proved that rape has taken place. But the running of the accused after the witnesses have arrived and was caught hold by PW 2 and PW 3 has made it a part of same transaction. However, from the aforesaid reasoning it is not proved that rape has taken place. But the running of the accused after the witnesses have arrived and was caught hold by PW 2 and PW 3 has made it a part of same transaction. The consistencies in the statement of the victim and the other witnesses proves that the place near the pond was the place of occurrence and the accused was present at the place of occurrence at the time of the incident which is also proved and remains irrebuttable. The crying of the victim and on hearing this the children who were bathing in the pond went to the village to call the villagers and on their call, PW 2 and PW 3 had come to the place of occurrence and on asking the victim she told them about her rape and started crying and pointed her finger towards the accused and when the accused started fleeing away he was caught hold by PW 2 and PW 3 which makes it relevant as a part of same transaction under Section 6 of the Indian Evidence Act, 1872. 26. For the offence of rape penetration is necessary but by looking into the medical report which is proved by the doctor it shows that no spermatozoa was found in the vaginal swab which is also corroborated by the fact that no internal or external injury was found on the body of the victim. This shows that rape was not committed upon the victim but it is already proved that accused was present at the place of occurrence and is trying to flee away on seeing PW 2 and PW 3 and was caught hold by them. It shows when the accused is not guilty then he remain standing there on the arrival of PW 2 and PW 3 but by running of the accused on seeing them this shows that the accused had an intention to do wrong but he was not successful in doing so. Also the victim in her evidence deposed that she had a cloth in which semen was there but was not seized by the police. This is failure on the part of the police or investigation, and for this failure, the victim whose testimony is credible should not suffer. 27. Also the victim in her evidence deposed that she had a cloth in which semen was there but was not seized by the police. This is failure on the part of the police or investigation, and for this failure, the victim whose testimony is credible should not suffer. 27. Based on the aforesaid grounds, this Court think it appropriate to set aside the judgment of conviction and sentence dated 13.10.2009 and 14.10.2009 punishable under Section 376 of Indian Penal Code,1860 and corresponding sentence and convict the appellant Substin Tuddu under Sections 376/511 of Indian Penal Code, 1860 for which, he will undergo half of the sentence that was earlier imposed on him by the learned trial court below, therefore, he is imposed the sentence of 3 ½ half years and the period already spent or undergone by him in custody to be subtracted from the modified period. 28. The learned court below is directed to take steps to arrest the appellant Substin Tuddu so that he may serve the modified sentenced. His bail bonds are cancelled. The accused be taken into custody to serve out the remaining sentence. 29. Accordingly, the appeal is dismissed with modification in conviction and sentence.