Full Judgment
Amareshwar Sahay, J.
1. This appeal arises against the judgment of conviction and sentence dated 25.2.2004 and 27.2.2004 respectively passed by the 1st Additional Sessions Judge, Giridih in Sessions Trial No. 346 of 2001 whereby and whereunder, the sole appellant Santosh Kumar was convicted for the offence under Section 376/511 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of three years.
2. In short the prosecution case is that in the night of 4.7.2001. the informant Pinki Kumari, aged about 13 years, the daughter of Kale Ram (PW-6) was sleeping in a room. At about 1.00 a.m., the accused/ appellant Santosh Kumar, the next door neighbour entered into her house by scaling the boundary wall in order to commit rape on her. He allegedly entered in her room, opened her Salwar. caught her breast and lifted her legs in order to commit rape but. she woke up and raised alarm. On hearing alarm, her mother Indu Devi (PW-1) and her father Kale Ram (PW-6) rushed to her room and apprehended the accused/appellant in half naked condition. At that time, he was wearing only underwear. The accused/appellant anyhow released himself from the hold of Kale Ram and managed to flee away from there. It was further alleged that Ganji and wrist watch belonging to Santosh Kumar were found lying in that room which was handed over to the police.
3. The defence is of denial of the occurrence and of false implication due to previous enimity.
4. In order to establish the charges, altogether 7 witnesses were examined on behalf of the prosecution. Out of whom. PW-1 Indu Devi, the mother of the victim girl and PW-2 Surendra Ram were declared hostile as they did not support the prosecution cases. PW 3 is Hare Ram and PW-4 Suresh Ram and PW 5 is Pinki Kumari, the victim/informant herself PW-6 is Kala Ram, the father of the victim girl and PW 7 is the Investigating Officer.
5. PW-1, the mother of the victim girl Indu Devi has stated that on the date of occurrence on 4.7.2001, in the night, she heard the cry of her daughter and when she went to her room, she did not see anybody in the room. On such of her statement, she was declared hostile by the prosecution.
6. PW-3 Hare Ram is the grand father of the victim girl. He has stated that in the night of occurrence, he was sleeping in the shop of Prakash Modi which was situated next to his house. He heard some hulla in the night, due to which, he woke up and started going towards his house. At that time, he saw that the accused/appellant who was wearing underwear, was entering into his own house. This witness asked his daughter-in-law (PW- 1), son and the informant as to what has happened. At this, the informant Pinki Kumari disclosed that the appellant had entered in the house by scaling the boundary wall and thereafter, he was trying to pull out her underwear and when she raised hulla, her father and mother woke up. She further disclosed that when she was asleep, at that time the accused/appellant entered into her room. In paragraph-2 he stated that his daughter-in-law also told him about the fact that the accused/appellant tried to commit rape on Pinki Kumari.
This witness is not an eye-witness to the occurrence rather he is a hearsay witness. However, neither PW-1 Indu Devi nor PW-6 Kale Ram have stated that they narrated the story to PW-3. Therefore, the statements of PW-3 that he came to know about the occurrence from the mouth of PW-1 and 6 remained uncorroborated. Moreover, he is a hearsay witness.
7. PW-4 is Suresh Kumar Ram. He has also deposed in the same line to that of PW-3. In his evidence, he has stated that while he was sleeping in his house, he heard hulla of 'Chor-Chor'. On hearing such hulla, he woke up and then found that the hulla was coming from the side of gali and he went towards the gali and found that the accused/appellant was fleeing away. He was wearing only underwear. Thereafter, he went to the house of the informant and there. Pinki Kumari, the informant narrated her the story as to how the accused had come and tried to commit rape on her. Therefore, it appears that this witness came to know about the occurrence from the informant Pinki Kumari.
8. PW-5, the informant Pinki Kumari has stated that the accused/appellant was his neighbour and while she was sleeping in her room, at about 1.00 a.m., the accused/appellant entered into her house by scaling four feet boundary wall. At that time, her mother was sleeping in the Varandah and her father was sleeping at the roof. At that time, the appellant forcibly tried to pull out her salwar and tried to commit rape on her. She woke up and raised alarm and on hearing alarm, her mother came to her room. At that time, the accused/appellant was in naked condition. Subsequently, her father also entered in her room after hearing hulta but the accused/appellant managed to flee away from there. She further stated that in course of occurrence, Ganji and wrist watch of the accused/appellant was left out at the place of occurrence. She further stated in paragraph-9 of her evidence that the accused/appellant was a handicap and he used to limp at the time of walking. In her evidence, in paragraph-14, she has stated that the wrist watch and ganji of the accused/appellant was found in the morning and then the same was deposited with the Police in the morning itself, she further stated that she had stated before the police that when she tried to raise hulla, the accused/appellant gagged her mouth.
9. The statements of PW 3 Hare Ram, PW-4 Suresh Kumar Ram, PW-5 Pinki Kumari and PW-6 Kale Ram have been contradicted by the evidence of the Investigating Officer PW-7. In paragraph-14 of his evidence, the Investigating Officer has stated that the witness Hare Ram did not state before him that while he was coming to his house, he saw the accused/appellant entering to his house wearing underwear. This witness has further contradicted the statement of the informant by stating that Pinki Kumari did not state before him that when she tried to raise hullo, the accused/ appellant gagged her mouth. This witness has further contradicted the statement of PW-6 Kale Ram by stating that he did not state before him that when he entered into the room of his daughter, he saw the accused was catching hold of his daughter. He further stated that PW-6 Kale Ram did not state before him that salwar of her daughter was opened by the accused/appellant in order to commit rape on her.
10. From the evidence of prosecution witnesses, which has been discussed above, 1 find that PWs particularly PWs-1. 2, 3, 4, 5 and 6 have contradicted each other on each material points which makes their statements unreliable and on such weak peace of evidence, it is not safe to sustain the conviction of the appellant for the offence under Section 376/511 of the Indian Penal Code.
11. In view of the above discussions and findings, I hold that the prosecution has not been able to establish the charge under Section 376/511 of the Indian Penal Code at all against the appellant.
Accordingly, I hold that the learned Trial Court has committed error both in law as well as on facts in convicting the appellant for the charge under Section 376/511 of the Indian Penal Code.
Accordingly, this appeal is allowed. The conviction and sentence passed by the Trial Court against the appellant is hereby set aside. The appellant, who is on bail, is discharged from the liability of bail bonds.