The lack of corroboration for the allegation of rape and the prejudice caused by the non-examination of the investigating officer led the court to give the appellant the benefit of doubt and quash the conviction and sentence.

JUDGMENT :

Heard learned counsel for the parties.

2. The instant appeal is directed against the judgment of conviction and order of sentence dated 18.06.2003 & 20.06.2003, respectively, passed by learned Additional Judicial Commissioner-FTC No. V, Ranchi corresponding to S.T. No.72 of 91; whereby the appellant has been convicted for the offence under Section 376 of the IPC and sentenced to undergo R.I. for a period of Seven years with a fine of Rs.1000/- and in default of payment of fine, further to undergo S.I. for Six months.

3. The brief fact of the case is that on 16.07.1990 when the informant was returning home along with her brother-in-law, at about 5.00 p.m. when they reached Balu Tard, they saw accused Birsa Uraon along with Mahli Oraon coming. Thereafter, Birsa Uraon began to assault informant’s brother-in-law and Mahil Oraon returned back and due to fear of assault her brother in-law fled away.

Thereafter, the accused threw down the informant on the road and committed rape.

4. Learned counsel appearing for the appellant assailed the impugned judgment on the following grounds: -

(i) There is vital contradiction regarding manner of occurrence as stated in F.I.R. with the statement of P.W.1 & P.W.-2.

(ii) Neither injury report has been brought on record nor the doctor who has inspected the victim has been examined.

(iii) Though the allegation of rape in on road, but even then, there is no eye witnesses.

(iv) I.O has not been examined in this case which is highly prejudice the case of the appellant.

Relying upon the aforesaid submission, he prays for acquittal of the appellant.

5. Learned APP opposed the prayer for acquittal and submits that the learned trial court has not committed any error in convicting the appellant.

6. Having heard learned counsel for the parties and after going through the judgment and the lower court records, it appears that there is vital contradiction between the deposition of the informant and her statement in the FIR. The victim-P.W-1 at para-1 has given different version as she deposed that on the alleged date of occurrence, she return from her Naihar to Sasural at 5 p.m.

Further, at para-4 she has stated that her medical examination was done but no statement under Section 164 Cr.P.C. was recorded and the fact remains that neither any injury report has been produced before the learned trial court nor any doctor has been examined who has alleged to have inspected the victim. Even the I.O. has not been examined in this case.

7. At this stage, it is relevant to observe that since there is only one eye witness i.e., victim herself, examination of I.O. was very necessary as the time of occurrence was 5 p.m. and the distance from alleged place of occurrence and residence of the victim was only ½ K.M. as such it is not believable that in the month of July at around 5 p.m. no independent witness was there in order to support the allegation of the victim.

In this regard reference may be made in the case of Ravishwar Manjhi & Ors. Vs. State of Jharkhand (2008) 16 SCC 561. Para-27 is quoted herein below :

“27. The investigating officer in a case of this nature should have been examined. His examination by the prosecution was necessary to show that there had been a fair investigation. Unfortunately, even no site plan was prepared. There is nothing on record to show as to the exact place where the occurrence had taken place. It is stated that the house of the parties is divided by a road. If that be so, it was all the more necessary to pinpoint the exact place of occurrence to ascertain who was the aggressor.”

Further, in the case of Lahu Kamlakar Patil & Anr. Vs. State of Maharashtra (2013) 6 SCC 417, the Hon’ble Apex Court in para-18 has held as under:-

18. Keeping in view the aforesaid position of law, the testimony of PW 1 has to be appreciated. He has admitted his signature in the FIR but has given the excuse that it was taken on a blank paper. The same could have been clarified by the investigating of