The conviction in rape cases must rely on credible evidence; unsupported testimony, especially when contradicted by medical findings, cannot sustain a guilty verdict.

JUDGMENT :

Pradeep Kumar Srivastava, J.

Heard Mr. Pratiush Lala, learned counsel appearing for the appellants and Mr. Jitendra Pandey, learned A.P.P. and Mr. Tarun Kumar, learned A.P.P. appearing for the State.

2. Appellants of both the criminal appeals have challenged the judgment of conviction dated 25.09.2006 and order of sentence dated 27.09.2006 passed by learned Additional Sessions Judge-I, Sahibganj in Sessions Case No. 98 of 2004, whereby and whereunder, the appellant-Satin Khan has been held guilty for the offence under Section 354 of the I.P.C. and sentenced to undergo R.I. for a period of one year along with fine of Rs. 3,000/- with default stipulation, whereas the appellant-Sk. Majeshwar has been held guilty for the offence under Section 376 of the I.P.C. and sentenced to undergo R.I. of seven years along with fine of Rs. 5,000/- with default stipulation.

FACTUAL MATRIX

3. The factual matrix giving rise to this appeal as per the fardbeyan of the prosecutrix recorded by S.I. Y.N. Upadhyay of Sahibganj (M) P.S. is that on 01.01.2004 at about 7:00 PM, the prosecutrix aged about 19 years has gone to discharge nature’s call towards north side of her house. When she untied her trouser and sit for discharging nature’s call, meanwhile, at about 7:45 PM, her co-villager Sk. Majeshwar and Satin Khan suddenly came there and all of a sudden Satin Khan gaged her mouth threatening to kill her, if she would raise alarm, then she followed with the accused persons holding the string of trouser towards the field of Sk. Ibraz, where Satin Khan left her, but Sk. Majeshwar caught hold of her hands lifted her in his arm and lay down in the field and forcibly committed rape on her about 5 minutes, thereafter, fled away towards his home. The prosecutrix has stated that her trouser has stained with blood just after occurrence, her father came towards the field, then she disclosed the above incident to him and returned to her home and also disclosed the above story to her mother Ajmira Bibi. Thereafter, she came to police station along with her father and on the basis of above fardbeyan, Sahibganj (M) P.S. Case No. 01 of 2004 dated 02.01.2004 was registered for the offence under Sections 376 /34 of the I.P.C.

4. After completion of investigation, charge sheet was also submitted against both the accused persons for the offence under Sections 376 /34 of the I.P.C. The case was committed to the court of Sessions, where Sessions Case No. 98 of 2004 was registered and charges under Sections 376 /34 of the I.P.C. was framed against both appellants, to which the accused persons pleaded not guilty and claimed to be tried. After conclusion of trial, the appellants were held guilty and sentenced as stated above.

5. It is contended on behalf of the appellant-Satin Khan that none of the witnesses examined by the prosecution including the prosecutrix have attributed any specific overt act against the appellant-Satin Khan. The victim girl also not stated that the present appellant with intent to outrage her modesty has used any criminal force or assault against her, as such, conviction of the appellant-Satin Khan for the offence under Section 354 of the I.P.C. is absolutely unwarranted. The allegation against the appellant- Satin Khan that he first approached the victim and gaged her mouth and proceeded towards the field of Sheikh Ibrat and thereafter, left her cannot be believed at all, if he might have intended to commit any offence, there was sufficient opportunity to him, but no overt act has been attributed against this appellant. Therefore, no ingredient of offence under Section 354 of the I.P.C. have been proved against the appellant- Satin Khan. Even, no charge under Section 354 of the I.P.C. was framed against the appellant-Satin Khan. Hence, he is entitled for acquittal from the said offence.

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