IMPORTANT POINT
Rape conviction under Section 376 IPC set aside due to unexplained nine-day FIR delay, contradictions in non-sterling victim's testimony, tutoring possibility, faulty investigation lacking corroboration, and no forcible intercourse evidence.

JUDGMENT :

The instant criminal appeal has been preferred by the appellant, Shyam Jee Mishra @ Manindra Mishra, against the judgment of conviction dated 09.12.2013 and the order of sentence dated 11.12.2013 passed in Sessions Trial Case No. 94/2012 by the Court of the Additional District and Sessions Judge-II, Buxar, whereby and whereunder the appellant has been convicted of the offence under Section 376 of the Indian Penal Code (in short, ‘IPC’) and sentenced to undergo rigorous imprisonment for seven years along with a fine of Rs. 1,000/-. In default of payment of fine, he has been directed to undergo simple imprisonment for an additional period of one month.

Prosecution Story:-

2. The substance of the prosecution case is as follows:

As per the informant, who is the father of the victim, his daughter (hereinafter referred to as the “victim”, her name being withheld to conceal her identity) was studying in Class VI at St. Cambridge Higher Secondary School, Dumrao. Her date of birth is stated to be in April, 1999, and her class teacher was Shyam Jee Mishra (the appellant). The appellant had visited his house on one or two occasions prior to the alleged occurrence. On 22.01.2012, his daughter (the victim) went missing, whereafter he and his family members started searching for her. During the course of the search, they came to learn that his daughter had been taken away by the appellant. It is alleged that the appellant had hatched a plan and, in furtherance thereof, allured the victim and took her away. The informant further alleged that despite extensive efforts, when his daughter could not be traced and the appellant was also not found, the appellant’s contact number was obtained from the victim’s school. Attempts were made to contact him on the said mobile number, but his phone was found switched off. It is further alleged that since the disappearance of the victim, the appellant had not been attending the school. In view of these circumstances, the informant became convinced that his minor daughter had been kidnapped by the appellant.

3. The informant filed a written report (Exhibit-1) on 01.02.2012 setting out the aforesaid prosecution case, on the basis of which a formal FIR bearing Dumrao P.S. Case No. 27/2012 was registered for the offence under Section 366(A) of the IPC. Consequently, the criminal law was set in motion and investigation was taken up.

4. After completion of the investigation, the police submitted a charge-sheet against the appellant for the alleged offences. Thereafter, the learned Chief Judicial Magistrate took cognizance of the offences under Sections 366(A) and 376 of the IPC and committed the case to the Court of Sessions for trial.

5. The appellant was charged with the offences under Sections 366(A) and 376 of the IPC. The charges were read over and explained to him in Hindi, to which he pleaded not guilty and claimed to be tried.

6. During the trial in ocular evidence the prosecution examined altogether ten witnesses who are as under:-

7. In documentary evidence, the prosecution proved and exhibited the following documents:-

8. After completion of the prosecution evidence, the statement of the appellant was recorded by the trial court under Section 313 of the Cr.P.C., wherein he denied the incriminating circumstances appearing against him in the prosecution evidence and claimed himself to be innocent. However, he did not take any specific defence in the said statement.

9. The appellant did not give any evidence in his defence.

10. While convicting the appellant, the trial cou