Lack of supporting evidence from prosecution witnesses and contradictory statements from the victim led to the acquittal of the appellant.

JUDGMENT

Kailash Prasad Deo, J. - Heard, learned counsel for the appellant, Mr. Anil Kumar Sinha, assisted by Mr. Pawan Kumar Sinha, Advocates and Mr. Asif Khan, learned Additional Public Prosecutor appearing for the State.

2. The instant criminal appeal is directed against the judgment of conviction and order of sentence, both dated 26.05.2004, passed by learned Additional District & Sessions Judge, Fast Track Court, Koderma, in Sessions Trial No. 502 of 1999, whereby the sole appellant has been convicted for the offence committed and punishable under Sections 448 and 376/511 of the Indian Penal Code and awarded rigorous imprisonment for one year for the offence committed and punishable under Section 448 of the Indian Penal Code and awarded rigorous imprisonment for five years with a fine of Rs. 1000/- for the offence committed and punishable under Sections 376/511 of the Indian Penal Code and in default of payment of fine the appellant has to undergo, further simple imprisonment for one year. All the sentences are directed to run concurrently.

3. The prosecution case is based upon the written report submitted by Urmila Devi, P.W.-1, before the Officer-in-charge, Satgawan police station, on 18.12.1998, alleging therein, that in the night of 17.12.1998 (Thursday), the informant was sleeping in her room after taking dinner along with her children. The door was closed from inside as the door was not properly closed and could be opened by push from outside. Informant has further alleged that at around 12:00 night the Vijay Sao, Son of Geeta Lal Sao entered into her room with bad intention to commit rape upon her and caught her body. On brawl raised by informant co-villagers namely Bhagirath Choudhary, Arjun Choudhary, Chottan Choudhary, Shyamlal Choudhary, Meghan Choudhary and Sato Choudhary came at the place of occurrence and they saved the informant. The informant has further alleged that after seeing the villagers coming there, the appellant, Vijay Sao fled away.

4. On the basis of written report in which the informant has put her right hand thumb impression, the police registered Stagawan P.S. Case No.42 of 1998, dated 18.12.1998, under Sections 448/376/511 of the Indian Penal Code against the appellant, Vijay Sao.

5. After investigation, the police submitted charge sheet vide charge sheet no.05 of 1999, dated 31.01.1999, under Sections 448/376/511 of the Indian Penal Code against appellant.

6. The cognizance of the offence has been taken vide order dated 09.2.1999 and the case has been committed to the court of sessions vide order dated 22.09.1999.

7. The charge has been framed against the sole appellant under Sections 448 and 376/511 of the Indian Penal Code, on 12.10.2001, to which the accused has pleaded his innocence and thus, he was put under trial.

8. The prosecution, has examined altogether eight witnesses to prove the case beyond all reasonable doubt.

Urmila Devi, informant and victim, has been examined as P.W.-1 but she has been declared hostile by the prosecution, Bhagirath Choudhary, has been examined as P.W.-2, Meghan Choudhary, has been examined as P.W.- 3, Chhottan Choudhary, has been examined as P.W.-4, Arjun Choudhary, has been examined as P.W.-5, Shyamlal Choudhary, has been examined as P.W.-6, is hearsay witness, Sudama Devi, examined as P.W.-7 and Sato Choudhary, examined as P.W.-8, both have been declared hostile by the prosecution.

The prosecution has not brought any documentary evidence on record.

9. After closure of the prosecution evidence, the statement of the sole appellant has been recorded under section 313 Cr.P.C., on 12.05.2004, to which the appellant has denied the evidence leveled against him and stated that he is innocent and has been falsely implicated in this case.

10. After hearing, learned counsel for the parties, and on the basis of material available on record, the learned trial court has passed the impugned judgment of conviction and order of sentence against the appellant, Vijay Sao.

B