JUDGMENT
D.P. Singh, J.
1. This appeal is directed against the judgment of conviction and order of sentence dated 19.2.2001 passed in Sessions Trial No. 14 of 1995, whereby and whereunder the learned 1st Additional Sessions Judge, Seraikella held the appellant guilty under Sections 376/511 IPC and convicted and sentenced him to undergo RI for five years.
2. The brief facts leading to this appeal are that in the forenoon of 13.3.1993 the informant Sabita Kumari, PW 2, has gone to collect forest woods along with PW 1 Basanti, situated near Chirugora, P.S. Ichagarh, District West Singhbhum and when she was cutting woods from the trees the appellant Gopal came there and objected why she was cutting woods from the forest. It is further stated that he further slapped her and thereafter tried to carry her towards a ditch. PW 1 tried to resist the appellant and rescue the informant but failed/Thereafter PW 1 went towards the Block buildings. In the meantime appellant forcibly threw the informant on the ground and committed rape. PW 1 came along with police and got the appellant arrested on the spot, the police recorded statement of the informant at 15 hours and registered a case under Section 376 IPC against him. The police started investigation and sent the informant for medical check up and seized underwears of the appellant and the informant. Later on chargesheet was submitted showing the appellant guilty under Section 376 IPC. The case was committed for trial by the court of sessions and learned trial court framed charges against the appellant under Section 376 IPC. The trial was concluded by the First Additional Sessions Judge, Seraikella in which the appellant was found and held guilty under Sections 376/511 IPC and convicted and sentenced him to serve RI for five years.
3. The present appeal has been preferred on the ground that the learned lower court has not considered the materials on record. It is also asserted that the whole prosecution story suffers from probability and credibility. According to the counsellor the appellant, PWs 1 and 2 do not inspire confidence. The Doctor has also not found any sign of rape on the informant. It is also asserted that in absence of I.O., material prejudice has been caused to the defence. It is also asserted that when the learned trial court did not find any evidence regarding the offence of rape, he convicted the appellant for offence of attempt of rape. The learned Counsel for the appellant further pointed out that as per PWs 1 and 2, the appellant was arrested by the police just after completion of the commission of rape, which is not possible as the place of occurrence is situated in the forest at a distance of 5 kms from the P.S. Therefore, even if PW 1 has gone to call for help, at least she could not have reached the P.O. within such a short period of 10-15 minutes. As such, the appellant, having been convicted in a false case, deserves to be acquitted.
4. I have carefully considered the evidence on record along with submissions of the learned Counsel for the appellant. PWs 1 and 2, said to be eye witnesses, have supported the prosecution version that when they were inside the forest, the appellant assaulted PW 2 arid caught hold of her. However, PW 1 admitted in examination in chief that she saw the appellant holding the informant. She has asserted that place of occurrence was situated in the vicinity of the Block. However, this fact has been contradicted by FIR, Ext.2, in which distance of P.O. has been mentioned at 5 Kms South. Recoding of fard beyan at 15 hours also makes a doubtful, if the P.O. is situated in the vicinity, what prevented the police to record the statement of the informant for more than three hours. In cross examination PW 1 further admitted, vide para 3, that she has not seen the appellant committing rape on Sabita. She denied that any undergarment was seized in her presence.
5. PW 2 Sabita herself has admitted in he examination in chief that Basanti along with police personnel of Block came and Gopal was arrested. According to her version, vide para 4, when she was raped, it was almost 3 PM. The learned trial court has relied upon her version, vide para 8, that rape could not be completed and as such, it sentenced the appellant under Sections 376/511 IPC.
6. PW 5 is a formal witness, who proved the writings in the FIR as Ext.2. PW 3 is the father of the informant and PW 4 is a witness, who has gone to P.S. along with the father of the informant. These witnesses are hearsay witnesses of the occurrence. According to them, they have gone to Block office at about 2 PM, where they found the informant and the appellant sitting along with PW 1. They have not supported the prosecution case in details, except that the informant has narrated the incident to them.
7. In the present case, the prosecution story suffers from non-examination of the Doctor and I.O. It is further found that the FIR was lodged at about 3 PM when incident said to have been occurred in the forenoon. If the P.O. was situated in the vicinity and police has arrested the appellant at about 12 Noon, the statement of the informant should have been recorded immediately. The distance shown, vide Ext.2, from P.O. to P.S. is about. 5 Kms and in that circumstance, the assertion of PW 1 that she has gone for help to Block, from where she came back with a constable and the appellant was still present committing rape, becomes doubtful.
8. In the facts and circumstances, I find and hold that the prosecution has not been able to prove beyond all reasonable doubts that the appellant was involved in commission of rape, for which he has been convicted.
9. In the result, I find and hold that the present appeal has got merit and deserves to be allowed. Accordingly, this appeal is allowed. The appellant is acquitted of the charges levelled against him and he is released from the liability of bail bonds.