JUDGMENT
D.P. Singh, J.
Page 0357
1. This appeal is directed against the judgment of conviction and order of sentence dated 29.6.1998 passed in Sessions Trial No. 137 of 1998/T.R.No. 246 of 1998, whereby and whereunder the learned 3rd Additional Judicial Commissioner, Ranchi held the appellant guilty under Section 376 IPC and convicted and sentenced him to serve RI for ten years.
2. The brief facts leading to this appeal are that in the afternoon of 2.5.97 the informant Saraswati Kumari, PW 2 was cleaning her house situated in Mouja Gagari, P.S. Ormanjhi, District Ranchi when the appellant entered into her house and forcibly committed rape on her. The informant tried to raise alarm but she was threatened and she submitted lastly to the lusted appellant. When her parents arrived on her alarm the appellant fled away. On the basis of this statement, Ormanjhi Police registered Ormanjhi P.S. Case No. 31/1997 under Section 376 IPC and started investigation of the case, the victim was sent for medical examination on 3.5.97 by PW 6, whose report is marked as Ext.2. The police submitted chargesheet and case was committed for trial by the court of sessions. The appellant was charged for the offence under Section 376 IPC by AJC Ranchi on 23.2.98, to which he pleaded not guilty and claimed false prosecution. The learned trial court after examining witnesses found and held him guilty under Section 376 IPC and sentenced him to serve RI for ten years.
3. The present appeal has been preferred on the ground that the learned lower court has not considered the defence of the appellant properly. It is further asserted that the manner of occurrence suggests sexual intercourse with consent of victim for which the appellant has already remained in custody from May, 1997 till he was admitted to bail during pendency of the appeal in October, 98. According to this memo of appeal, the victim in her statement under Section 164 Cr.P.C. has given a different version than the version recorded by the police immediately after the occurrence. It is also asserted that PW 1, father of the victim, PW 4, mother of the victim, contradict each other in the manner of occurrence materially. Therefore, the trial court should have considered the facts apparent on record that PW 2 has got illicit relationship with the appellant from before the date of occurrence and only when she was caught by her mother, false allegations have been levelled. It is also asserted that the victim was found above 17 years and was competent to give consent for sexual intercourse. Therefore, the conviction of the appellant may be set aside.
4. Learned APP opposed this contention on the ground that the victim has specifically alleged forceful sexual intercourse as well as witnesses have supported the prosecution version that the appellant was seen fleeing away from the place of occurrence.
5. Learned Counsel for the appellant submitted frankly that even if the prosecution version is accepted that he was found fleeing away from the P.O. in the evening of 2nd May,97 the conduct of the prosecutrix proves it that sexual intercourse was being committed with her consent. Learned Counsel pointed out that it is an admitted fact on record that when prosecutrix raised alarm, her mother, PW 4 arrived and at Page 0358 that time she did not disclose the incident to PW 4. In this context my attention was drawn towards examination in chief of PW 4, vide para 2 where she stated specifically that Saraswati did not disclose anything, after which she went inside the room and found the appellant hiding himself beneath the cot. She further asserted that she started thrashing the appellant with danda and in the meanwhile PW 1, father of the victim arrived there with Kudal but she resisted not to assault the appellant and the appellant managed to flee away.
6. In this context statement of PW 1 is also clear, vide para 2 that he found the appellant hiding beneath the cot and when he raised Kudal to assault him, PW 4 forbade him, after which he asked the appellant to go away. This witness has further admitted in para 9 that when incident took place, he was behind the house in the kitchen garden. He further admitted, vide para 10 that when he reached, he found PW 4 was beating the appellant with danda. This witness has further admitted in par 13 that Bhagats had assaulted him on the same day.
7. PW 2, the prosecutrix, gave a different version, vide para 2 that when she asked the appellant to go back but he neglected her request and thereafter she was exploited sexually. She admitted in cross examination that she knew the appellant for last 2-3 months before the occurrence and she has got this relation for two-three months, vide para 11 and 12. She further admitted, vide para 18 that when appellant entered into the room she did not raise alarm, neither she raised alarm when he caught her hand, vide para 20. According to this witness, when her mother asked her what was happened, she did not disclose that Shiblal was hiding inside the room. Thereafter PW 4 got lighted a lamp and searched the appellant out of the cot. She admitted, vide para 33 that the I.O. was informed regarding her relations with the appellant for last 2-3 months.
8. In this context the statement of PW 5, sister of the prosecutrix does not support the prosecution case. PW 6, the Doctor, mentions that she did not find any sign of rape and estimated the age of the victim between 17-18 years.
9. The I.O., PW 3, vide para 9, admits that the informant has admitted her relations with the appellant for last 3-4 months. This witness has further admitted in para 23 that no other witness has supported the prosecution version.
10. On perusal of facts and circumstances mentioned above, it is apparent that at the time of alleged occurrence the prosecutrix was aged between 17-18 years and intimate relationship was going on between them for last 3-4 months. It is also apparent from the facts on record that when Shiblal was detected inside the room beneath the cot, PW 2 narrated her parents that she was raped. The conduct of PWs 1 and 4 shows that sexual intercourse has taken place without resistance from the side of the prosecutrix.
11. Having considered all the facts and circumstances, mentioned above, I find that the prosecution has measurably failed beyond all reasonable doubts to prove the charges under Section 376 IPC against the appellant.
12. In the result, this appeal is allowed having merit in it. The appellant is acquitted of the charges levelled against him and he is released from the liability of bail bonds.