The conviction for rape was quashed due to unreliable victim testimony, lack of corroborative evidence, and unexplained delay in FIR lodging.

JUDGMENT :

VIPUL M. PANCHOLI, J.

The present appeal has been filed under Section-374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as ‘Cr.P.C.’) challenging the impugned judgment of conviction dated 06.02.2019 and order of sentence dated 13.02.2019 passed by learned 11th A.D.J.-cum-Spl. Judge (SC/ST) Act, Muzaffarpur in connection with Trial No.206/2015, G.R. No.1096/1994, arising out of Sahebganj P.S. Case No. 91 of 1994 dated 05.10.1994, whereby the appellant has been sentenced to undergo imprisonment for 7 years U/s.376 of L.P.C. and also with a fine of Rs.10,000/-(ten thousand) and, in default of payment of fine, to undergo further imprisonment for three months. He has further been sentenced to imprisonment for life under Section 3(2) (v) of SC/ST (POA) Act and also with a fine of Rs.10,000/- (ten thousand) and, in default of payment of fine, to undergo imprisonment for three months. Both the sentences have been directed to run concurrently.

2. Heard Mr. Yogesh Chandra Verma, learned senior counsel for the appellant assisted by Mr. Rabish Kumar, and Mr. Sadanand Paswan, learned Spl. P.P. for the respondent-State.

3. The brief facts leading to the filing of the present appeal are as under:

“On Wednesday (04.10.1994) at about 09.00, the informant was sleeping on a mat spread on the ground in a hut facing north when Hari Babu, son of Bujhu Lal, came with a pistol in his hand and put it on her neck and asked her to keep quiet, otherwise she would be killed. Thereafter, he gagged her mouth with his hand and after removing her saree and saya, forcefully inserted his penis into her private part. She kept moving her hands and legs. Meanwhile, semen got discharged from his penis, which fell on her private part, thigh and the cloth. After this, she raised alarm and on her alarm, her mother Surji Devi asked as to what happened. She started making a noise that Hari Babu is running away after abusing her. Many people of the village like Anat Paswan, Janak Paswan, Yogendra Paswan, Dukha Paswan etc. also saw him running away after the incident.”

4. After filing of the F.I.R., the investigating agency carried out the investigation and, during the course of investigation, the Investigating Officer recorded the statement of the witnesses and collected the relevant documents and thereafter filed the charge-sheet against the accused. As the case was exclusively triable by the Special Court (SC/ST) Act, the case was committed to the Court of Special Judge (SC/ST) Act where it was registered as Trial No. 206 of 2015.

5. Learned senior counsel for the appellant Mr. Yogesh Chandra Verma, at the outset, submits that the case of the prosecution rests on the deposition given by the victim, P.W.1. However, there are major contradictions in the deposition given by her and other witnesses and, therefore, the version given by the victim is not required to be believed. It is also contended that P.W.3, who is the mother of the victim, has stated in her examination-in-chief that she has seen the accused fleeing away from the house in the light of the earthen lamp.

She has further deposed that the victim did not inform her anything. Thereafter, on the next day, she went to the police station along with her daughter. Learned senior advocate further submits that there is a delay of two 24 hours in lodging the F.I.R. wherein the present appellant has been falsely implicated. It is submitted that though the victim had identified the accused appellant and other family members and more than 40 persons had gathered immediately at the place after the occurrence and had seen the accused fleeing away from the place of incident, surprisingly, the F.I.R. was lodged after 24 hours.

6. Learned senior advocate would thereafter submit that P.W. 6, the doctor who had examined the victim, has also specifically opined that evidence of rape was not found. At this stage, it is also submitted that P.W. 5 and P.W. 8 have not supported the case of the prosecution and t