JUDGMENT : Arun Kumar Rai, J. 1. Heard Mr. Kanti Kumar Ojha, learned counsel appearing on behalf of the appellant and Mr. Tarun Kumar, learned A.P.P. for the State. 2. This appeal is directed against the judgment of conviction and the order of sentence dated 17.01.2008 passed by learned 2 nd Additional Sessions Judge, Pakur in S.C. No. 70 of 2007 arising out of Littipara P.S. Case No. 09 of 2007, corresponding to G.R. No. 123 of 2007 for the offence under Sections 341/376/379 of the Indian Penal Code to undergo RI for five years under Section 376 of the Indian Penal Code, RI for one month under Section 341 of the Indian Penal Code and RI for one year under Section 379 of the Indian Penal Code alongwith a fine of Rs.5,000/- and in default of payment of fine further sentenced to undergo R.I. for six months. 3. In nutshell, the case of prosecution is based upon the fardbeyan of victim which has been recorded on 23.02.2007 at 09:00 Hours in police station Littipara (Pakur). Victim (PW-9) has allegedly stated therein that on 08.02.2007 she along with her cousin sister (PW-8) at 07:00 AM in the morning went to Kumarbhaga jungle to graze cattle and at about 11:00 O’clock accused/appellant who was known to her started having conversation with her and took her silver necklace and asked her cousin sister to go home, otherwise she would be liquidated. Thereafter, her cousin sister went home and victim started following accused/appellant to get her silver necklace and by that time, it was sunset and she was dragged towards Kumarbhaga Dungri (Chahan) and it was around 08:00-09:00 PM and she was laid down on the ground and accused/appellant forcefully committed rape on her person and as she was weak she could not be able to save her. Both of them were there for whole night and she got scared as accused extended threat that she would be liquidated if she would divulge this fact to anyone, and thereafter he fled away and she also returned back to her home and divulged the incident to her parent. It is further alleged that on next day i.e. 09.02.2007 panchayati was convened and it was decided that accused/appellant would pay Rs.13,000/- within 15 days, but accused/appellant did not obey the decision of panchayat and extended threat to family members of victim. 4. It is further alleged that on next day i.e. 09.02.2007 panchayati was convened and it was decided that accused/appellant would pay Rs.13,000/- within 15 days, but accused/appellant did not obey the decision of panchayat and extended threat to family members of victim. 4. On the basis of aforesaid fardbeyan, an FIR being, Littipara P.S. Case No. 09 of 2007 dated 23.02.2007 under Sections 341/376/379 of IPC got registered. 5. After due investigation, I.O has submitted charge-sheet against the accused/appellant. Thereafter, cognizance was taken by learned CJM, Pakur and case was committed to the court of sessions. After apprehension of accused/appellant, charge under Sections 341/379/376 of IPC has been framed against him which was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried. In statement under Section 313 Cr.P.C, the accused/appellant simply denied the incident and has claimed to be innocent. 6. Learned counsel for the accused appellant submitted that impugned judgment is not sustainable in the eyes of law as evidences of material witnesses P.W.-2, P.W.-3, P.W.-6, P.W.-8 and P.W.-1 have not been scrutinized properly as they have not supported the prosecution version. He has further submitted that learned trial court has failed to appreciate the evidence of P.W.-1, the Doctor, who examined the victim but did not find any sign of recent sexual intercourse. He has further submitted that learned trial court has also failed to analyze the evidence of P.W.-2 who at para 3 of his deposition have stated that parents of victim had settled the marriage of victim with the appellant and the appellant refused to marry with her and father of victim had also demanded money and as the appellant refused to pay the money to father of victim, present case has been lodged. He has further submitted that P.W.-3 and P.W.-6 have admitted that under the Santhal Custom, if a boy and girl consensually establish physical relation then, after its disclosure fine is imposed in ‘panchayati’ and the fine is to be given to girl’s father, since the appellant did not pay the fine as imposed in the panchayati, the case was instituted against him. He has further submitted that learned trial court has failed to analyze the evidence of P.W.-9 (victim), who during her cross examination has stated that on putting her down on the ground by the appellant she sustained injuries on her back but P.W.-1, Doctor did not find any mark of external injury. On aforesaid premise, learned counsel has submitted that impugned judgment of conviction and order of sentence is bad in law and liable to be set aside. 7. Per contra, learned APP for the State has submitted that there is specific allegation of rape against the appellant-accused. Further, P.W-8 (cousin sister of the victim) who also went to jungle alongwith victim to graze her cows, has stated that the accused appellant snatched the silver chain of victim and also threatened her to go home, otherwise she would be liquidated. He has further stated that the PW-2 (villager) has stated about the panchayati in which fine was imposed upon the accused appellant for establishing physical relationship with the victim. P.W.-3 has also stated that a compromise was arrived between the accused and victim in the panchayati. Therefore, even on the basis of testimonies of PW-2 and PW-3 prosecution has successfully established the commission of rape by the appellant and submitted that impugned judgment bears no infirmity and appeal is liable to be dismissed. 8. Heard learned counsel for the accused/appellant and learned A.P.P. for the State and perused the material available on record. 9. This Court finds, to prove its case, prosecution has examined as many as ten witnesses in the present case. To conceal the identity and parentage of the victim and her relatives their names are not being disclosed in this Judgment. 10. These witnesses are; PW-1 Dr. Anita Sinha, PW-2 Benjamin Hansda (villager), PW-3 Vakil Murmu (villager), PW-4 Sahib Kisku (villager), PW-5 Lakhiram Murmu (villager), PW-6 father of victim, PW-7 mother of victim, PW-8 cousin sister of victim, PW-9 victim and PW-10 Animesh Kumar Gupta, I.O of the present case. 11. In fact, there are three sets of witnesses whose deposition(s) has been got recorded in the present case. First set of witnesses is victim and her family members who are PW-9, PW-8, PW-7 and PW-6. Second set of witnesses are villagers and they are PW-2, PW-3, PW-4 and PW-5. 11. In fact, there are three sets of witnesses whose deposition(s) has been got recorded in the present case. First set of witnesses is victim and her family members who are PW-9, PW-8, PW-7 and PW-6. Second set of witnesses are villagers and they are PW-2, PW-3, PW-4 and PW-5. Third set is official witnesses who are PW- 1 doctor who examined victim on 23.02.2007 and PW-10 who is the I.O and has investigated the present case. 12. Firstly, I would like to scrutinize evidence of villagers. PW-2 Benjamin Hansda has stated that he was very much present in the panchayat and father of the victim had fixed her marriage with accused/appellant and accused/appellant denied for marriage and father of the victim demanded money for denial of marriage. As far as PW-3 Vakil Murmu, PW-4 Sahib Kisku and PW-5 Lakhiram Murmu are concerned, they had stated in their respective testimony that they were very much present at the time of panchayat, but has stated that the said panchayat was done for the article of victim which was lost by accused/appellant and as the price of the lost article was not given/paid by accused/appellant, that’s why, the case has been lodged. 13. PW-4 and PW-5 declared hostile but nothing has been extracted from their respective mouth which would support the case of prosecution. 14. The above said testimony of villagers further got corroborated from the mouth of mother of the victim (PW-7) who has stated at para-5 of cross-examination that they went to the Pradhan for returning of article by the accused/appellant and in panchayat Pradhan did not impose fine on him rather accused/appellant was asked to return the article and when article was not returned then the present case has been lodged. This witness has also stated in her examination-in-chief that PW- 8 returned on that day and told her that accused/appellant had caught hold of victim and cattle were brought by her then she along with other persons went to that place in the jungle, but they could not find them. 15. PW-9 is the victim who has stated that incident took place on Thursday about seven months ago at 08:00 AM in the morning and she was grazing cow towards mountain side and PW-8 was with her and she was also grazing cow. 15. PW-9 is the victim who has stated that incident took place on Thursday about seven months ago at 08:00 AM in the morning and she was grazing cow towards mountain side and PW-8 was with her and she was also grazing cow. In the meanwhile, accused/appellant came near her and her gamchcha and silver necklace were snatched and accused/appellant told PW-8 to go back by taking cow, otherwise she would be liquidated. Therefore, PW-8 went along with cow. Victim has also stated that for whole day accused/appellant did not allow her to go home and when it was evening then she was dragged towards jungle and committed rape upon her 3/4 times in the night and at 04:00 AM in the morning he fled away after leaving her and when she started coming from jungle then in the way near pond (pokhar) she met with her father and divulged incident to him. Thereafter, his father conveyed the incident to Village Pradhan and on next day panchayati was convened and it was decided that accused/appellant would give her Rs.13,000/- as cost of necklace and fine, but he did not obey the decision of panchayat, rather he extended threat to her. In cross-examination, victim has stated that as accused/appellant did not pay the fine imposed by panchayat, that’s why, present case has been lodged. She has also stated that she did not give tooth-bite to accused/appellant while he was committing rape and even she did not scratch him and in the interval of ten minutes thrice rape was committed. For entire night, she and accused/appellant slept at the same place and in the morning, she wore the cloth and she asked for mala in the night and morning also, but accused/appellant did not return. 16. For entire night, she and accused/appellant slept at the same place and in the morning, she wore the cloth and she asked for mala in the night and morning also, but accused/appellant did not return. 16. PW-8 is said to be cousin sister of the victim who stated that on the day of incident, she along with victim went to jungle for grazing cattle and accused/appellant came and snatched victim’s silver necklace and she was told by accused/appellant to go home otherwise she would be throttled, and out to fear, she returned back and she narrated incident to father of the victim, then she had taken father, brother and bhabhi of the victim to the place where necklace was snatched by accused/appellant, but they could not find either victim or accused/appellant and on next day victim came back and told the incident to her father. PW-8 also deposed that accused/appellant lost marki (nose pin) and necklace of victim and committed rape on her person for whole night. She has also stated that other persons were also grazing cattle while they were grazing the cattle and when chain was snatched victim shouted, but other persons did not turn up. 17. PW-6 who happens to be father of the victim, has stated that entire incident was narrated by victim when she reached home and she told that accused/appellant took nose pin and silver chain and committed rape on her person, then he went to Pradhan of the village and panchayati was convened which was attended by accused/appellant also and father of accused/appellant given assurance that article would be returned back and there was deliberation on rape also and it was decided that fine would be paid but accused/appellant neither returned article nor paid fine, that’s why case has been lodged. In cross-examination, he has categorically stated that in santhal society, it is rule that if a boy and girl indulge into physical activity with their consent and are caught, then fine would be imposed and it was given to father of the girl and as fine was not given, therefore this case has been lodged. 18. In cross-examination, he has categorically stated that in santhal society, it is rule that if a boy and girl indulge into physical activity with their consent and are caught, then fine would be imposed and it was given to father of the girl and as fine was not given, therefore this case has been lodged. 18. PW-10 is I.O of the present case, who has investigated the matter and during course of investigation recorded the statement of the witnesses and also visited the place of occurrence and has stated the second place of occurrence is a flat land beneath a mango tree and further description given by him in his testimony reveals that it is secluded place. 19. PW-1 Dr. Amita Sinha after examining the victim found that there is no sign of recent sexual intercourse, but she was habitual of sexual intercourse. 20. The Hon’ble Apex Court in the case of Tameezuddin @ Tammu vs State of (Nct) of Delhi reported in (2009) 15 SCC 566 has held that the evidence of prosecutrix should be read and considered in totality in corroboration with other evidences, if the story of narration of the prosecutrix seems to be improbable to the Court. Relevant paragraph of the judgment is quoted hereunder:- 9.It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. 21. After going through the aforesaid legal proposition and evidence brought on record on behalf of prosecution, it is clear that it is the case of prosecution that victim along with PW-8 went in the jungle for grazing cow in the morning and at about 11:00 AM accused/appellant met, then he took silver chain of the victim and extended threat to PW-8 to go back to home along with cattle and victim started following accused/appellant with a view to take back her silver chain and in the meanwhile it was dusk and in the night accused/appellant committed rape on her person three/four times, that too, in the interval of ten minutes. 22. It is the case of prosecution that victim is major. 22. It is the case of prosecution that victim is major. The version of victim as stated by her that as threat was extended by accused/appellant, therefore she could not resist or forbade him from committing rape, appears to be improbable in the present case after analyzing the evidence. PW-8 cousin sister of the victim has stated in her testimony that the place where she and victim were grazing cattle where the accused came, other persons were also grazing the cattle nearby and no explanation has come in the evidence from the mouth of victim that for entire half day what prevented her from going out of the company of accused/appellant, because it was an open area and persons were also present nearby. Victim herself said that both of them i.e. victim and accused/appellant slept in the night at the same place and she wore the cloth in the morning and she came towards her house when accused/appellant left her from that place. As far as narration of incident by victim to her father is concerned, her father has stated that the victim has conveyed him regarding the incident in the home, whereas victim herself has stated that she told her father regarding the incident while she was returning in the next morning near the pond. The villagers who have been examined in the present case had categorically stated that panchayati was convened as the articles of victim were lost by accused/appellant. Even the conjoint reading of evidences of mother and father of the victim also suggest that as the fine imposed by the panchayat was not paid, that’s why, the present case has been lodged. Father of the victim has further stated that fine used to be imposed on the boy when boy and girl consensually made physical relation and they were caught and the said amount is to be paid to the father of the victim. 23. Considering the discussions made in the preceding paragraphs, this Court is of considered view that there is no iota of material available on record which could suggest that victim was overpowered against her will either by extending threat or by any other extraneous means and it compelled victim to remain with accused/appellant for half day as well as whole night. Considering the discussions made in the preceding paragraphs, this Court is of considered view that there is no iota of material available on record which could suggest that victim was overpowered against her will either by extending threat or by any other extraneous means and it compelled victim to remain with accused/appellant for half day as well as whole night. In the aforesaid circumstances, this Court is having no hesitation to hold that physical relation established by appellant with victim was a consensual one. As such, no offence of rape u/s 376 of I.P.C. is made out. Learned trial court has not examined the materials available on record from this angle. As far as offence u/s 341 and Section 379 of I.P.C. is concerned, in view of aforesaid discussions, as appellant is exonerated from charge u/s 376 I.P.C. therefore, he is also entitled for exoneration from charges u/s 341 and 379 of I.P.C. As such, charges against appellant under Sections 341, 379 and 376 of I.P.C. are liable to be set aside. 24 . Therefore, the judgment of conviction and the order of sentence dated 17.01.2008 passed by learned 2 nd Additional Sessions Judge, Pakur in S.C. No. 70 of 2007 is not sustainable in the eyes of law and accordingly, it is set aside. 25. Accordingly, this appeal is allowed. 26. Since the appellant is on bail, he is discharged from the liability of the bail bonds. 27. Let the trial court record be sent back to the court concerned forthwith.