JUDGMENT
R.K. Merathia, J.
1. This appeal arises out of judgment dated 27.11.1999 passed by Shri Rajesh Kumar Dubey, VIIIth Additional Judicial Commissioner, Ranchi in Sessions Trial No. 247 of 1984 convicting the appellant under Section 376, IPC and sentencing him to undergo RI for 7 years.
2. This prosecution case in brief is that on 8.5.1982, the prosecutrix Prabha Devi lodged a fardbeyan before police that, on 5.5.1982, she was retuning back to her parent’s house from her maternal uncle’s house (mausa’s house). At Birgora Railway Station she was waiting for train at about 2.30 pm where the engine takes water near Birgora river. The said place was a lonely place but at some distance there was a hut where tea was sold and there an old lady was sitting. She saw the appellant, who was of village Ita, having a transistor hanging with his neck and a bag in his hand and a sword hanging with his neck. Appellant came towards her and told her either to go with him to Ita Basti or to Jhalda, to which she refused. On this, he caught her hand and forcibly took her to a nearby ditch. Appellant gagged her mouth and pushed her on the ground and committed rape upon her for about half hour. She was not in a position to raise hulla. Then appellant asked the old lady, sitting in hut, to keep the prosecutrix and offered her a 10 rupee note, to which the old lady denied. The appellant remained there and the prosecutrix went to house of one Birsa Uraon at Tanger Basti on foot and stayed there in the night. Next day after catching train from Tanger Basti Railway Station, she returned to Birgora and from there she returned to her Mousi’s house at Ita on foot and told everything to her mousi. She had washed her petticoat. In the night of Friday, the next day there was a panchayti.
3. The prosecutrix was examined by a lady doctor at Sadar Hospital, Ranchi on 9.5.1982. The prosecution examined eight witnesses. PW 1 is a formal witness PW 2 is the lady doctor, who examined the prosecutrix. PW 3 is her ‘mausi’. PW 4 is ‘Mousa’ of Prabha Kumari. PW 5 is chowkidar of the village. PW 6 is Prabha Kumari herself. PW 7 is the father of Prabha Kumari and PW 8 is the seizure list witness.
4. Learned counsel for the appellant submitted as follows. As per the medical report, the age of Prabha Kumari was between 16-17 years and no evidence of rape was found. Two abrasions of 1/2″ x 1/4″ on inner side of right thigh and of 2″ x 1/2″ on inner side of left thigh were found at healing stage. The abrasions were caused by hard and blunt substance and as per the doctor they may be self-inflicted. It is further submitted that the seizure list shows that ‘sari” and ‘petticoat’ were seized without any stain. PW 4, mausa of Prabha Kumari said that in the panchayti Prabha Kumari did not participate. He also said that wife of his uncle Yogendra Lal fled away with Surendra Ojha, the uncle of the appellant, who has kept her.
Prabha Devi stated in her evidence that it takes one hour from Birgora to the house of Birsa Uraon and it takes 1/2 hour from Birgora to her mausi’s house at village Ita. It takes about 1 /2 hour from the house of Birsa Uraon to the house of her ‘mausa’. She knew the name of appellant as his is just in front of the house of ‘mausi. When the appellant caught her hand she could not raise hulla. The blood stained sari and petticoat were given to the police officer at the time of fardbeyan.
PW 7, father of Prabha Kumari stated that he saw fresh blood on the clothes of Prabha Kumari.
Learned counsel for the appellant pointed out to various contradictions in the prosecution case about the time and date of occurrence. He submitted that the prosecution story is a concocted one and cannot be believed.
5. Learned counsel for the State submitted that the evidences were recorded after about 9 years and therefore the minor variations in the depositions about the time and date of occurrence cannot be made a ground to disbelieve the prosecution case. It was further submitted that the story of enmity sought to be made out by the defence is concocted. It cannot be believed that a false case of rape will be instituted due to some enmity between the uncle of the mausa of Prabha Kumari and the uncle of the appellant.
6. After hearing the parties, I agree with the submissions of learned counsel for the State that the story of enmity projected by the defence cannot be believed. I am also not convinced with the contradictions pointed out by learned counsel for the appellant about the time and date of occurrence. However the following circumstances create reasonable doubt about the prosecution case.
When the house of ‘mausa’ of Prabha Kumari was nearer to the house of Birsa Uraon, it is not expected that inspite of rushing to the house of her ‘mausa’ after the alleged rape, she went to the house of Birsa Uraon.
The place of occurrence is a ditch. No injury on the person of Prabha Kumari was found by doctor. The Investigating Officer has not been examined in this case, who was competent to say about the place of occurrence. In normal circumstances if Prabha was pushed by the appellant on the ground and if she resisted, some injuries on her body should have been found by the doctor even if she was examined after about four days of the alleged occurrence.
She and her father said that her blood stained clothes were given to police at the time of fardbeyan but she herself said that the clothes were washed by her and moreover the seizure list also shows that no spot or stains were visible on the seized clothes.
As per the doctor, abrasions were found on the inner side of thigh which were caused by hard and blunt substance. The learned trial Court heavily relied on the said abrasions to conclude that the said abrasions corroborate the evidence of the prosecution that force was applied in committing rape. Learned trial Court has further found that the said abrasions proved that those are caused during the course of rape. I am unable to agree with the said finding of the trial Court.
7. Learned counsel for the appellant also submitted that when the statement of appellant under Section 313, Cr PC was recorded on 13.8.1999, the Court below recorded his age as 25 years. Therefore, he submitted that appellant was juvenile at the time of alleged occurrence. Moreover he submitted that the appellant remained in jail for more than a month and he has faced this case for about twenty two years. At present he is leading a married life with grown up children. The prosecutrix also is leading her married life as per her evidence.
8. As I am satisfied that there are serious doubts in the prosecution case, as noticed above, it is not necessary to pursue the said contention of the appellant whether he was juvenile at the time of occurrence or not.
9. For the reasons aforesaid, I am inclined to give benefit of doubt to the appellant. In the result, the Judgment under appeal is set aside. The appellant is discharged of the bail bonds.