Crl.A. 70/2008 BEFORE HON’BLE MR.JUSTICE P K MUSAHARY JUDGEMENT & ORDER(CAV) Heard Mr. J M Choudhury, learned senior counsel assisted by Mrs. N. Bharali, lea rned counsel for the convict/appellant and Mr. B.S.Sinha,learned Addl. Public P rosecutor, Assam. 2. This appeal is preferred under Section 374(2) Cr.P.C. 1973 against the judgme nt and order dated 31.3.2008 passed by the learned Addl. Sessions Judge (FTC), D ibrugarh in Sessions Case No.174/06 thereby convicting the appellant u/S 376 IPC and sentencing him to undergo imprisonment for 10 years and to pay fine of Rs.5 000/-, in default, rigorous imprisonment for another three months. 3. The prosecution story in brief is that one Sri Sukhin Mech, resident of Puwal i Pathar Gaon under Duliajan Duliajan Police Station in Dibrugarh District lodge d an FIR on 8.7.2005 alleging that the accused Shri Nayan Jyoti Das @ Bhainu Das , a resident of the same Village, 6(six) months before the date of filing the Ej ahar, committed rape on his daughter Roma (real name withheld), and thereby sh e got pregnant. Before filing the Ejahar a ’Bichar’ was held on 4.6.2005 by loca l Mahila Samittee but no decision could be arrived at because the accused did no t turn up. On the basis of the aforesaid Ejahar a crime being Duliajan P.S.Case No.143/05 was registered under Section 375 IPC. The I.O. visited the place of oc currence, got the victim medically examined, caused production before the Chief Judicial Magistrate, Dibrugarh and got her statements recorded u/s 164 Cr.P.C. On completion of investigation the I.O. submitted chargesheet (E xt.3) on 31.7.2005 u/s 376 IPC against the convict/appellant. The case being com mitted to the court of learned Sessions Judge, Dibrugarh, it was endorsed to the learned Addl. Sessions Judge (FTC), Dibrugarh for trial and disposal. On consid eration of materials on record, the learned trial court framed charge u/s 376 IPC against the convict/appellant who denied the charge, p leaded not guilty and faced the trial. 4. The prosecution examined as many as 8(eight) witnesses including the victim g irl and the medical officer. The appellant however examined no witness for his d efence. On the basis of the materials and evidence on record, the learned trial court convicted and sentenced the appellant as stated earlier. 5. The informant is the father of the victim girl. He was examined as P.W.1. As per his evidence, the occurrence took place in the night of Magh Bihu while the other family members were attending feast in the village leaving his daughter al one at home. The accused entered the house and committed rape on his daughter. H is victim daughter informed him about the matter on the next morning and in turn he informed the villagers and Mahila Samittee about the matter. Since the villa gers could not solve the matter he lodged the FIR (Ext.1). As per his deposition the victim was aged about 15 years. In cross-examination he however stated that he lodged the FIR after 4(four) days of the occurrence. In cross-examination he also stated that before the said incident, a dispute arose with his daughter in respect of a baby named Narayan Baglari. He denied the suggestion that he set u p a false case. The victim’s mother Smti Anu Mech was examined as P.W.3. As per her deposition the occurrence took place two years ago and her daughter informed her that 3 months back the accused committed rape on her while she was alone at home in the night of Magh Bihu. The villagers gathered but they failed to solve the matter for which she went to the Duliajan Police Station. In cross-examinat ion she stated that she informed her husband on the next day when she received t he information. P.W.4, Smti Krishna Baglari is a hearsay witness and she was the refore not cross-examined. P.W.5, Khagen Mech had no knowledge about the occurre nce. 6. P.W.6, Sri Pramod Hazarika, is the Village Headman. He deposed that about 6 m onths ago the victim’s father came to him and made a complaint that the accused committed rape on his daughter and as a result his da ughter was carrying pregnancy of 5 months. He testified that he called a ’Bichar ’ in the village but the accused and the victim did not turn up and the village Bichar could not be held. He further confirmed that he wrote Ejahar (Ext.1) as p er the version of Sukhin Mech, father of the victim girl. The victim Roma was ex amined as P.W.2. She deposed that one year ago the occurrence took place in the Magh Bihu night while she was asleep in her house alone. The accused entered her room in the 2nd half of night by pushing open the bamboo door. He then by apply ing force committed rape on her. She failed to resist him and due to such rape she got conceived. She in formed the matter to the accused who advised her to use medicines. She further s tated that she informed her parents about the matter and the parents gathered th e villagers for ’Bichar’ but they could not do anything. As a result she went to the police station and informed the matter. In cross examination she stated tha t she informed her father about the matter after four days of the occurrence. Sh e narrated how she was forced and raped by the accused. However in cross-examina tion she categorically stated that she had no love affairs with the accused. Fur ther she stated that she made a statement before the I.O. to the effect that the accused must marry her. She denied the suggestion that she did not get pregnant from the side of the accused. She also denied the suggestion that she could not identify the accused due to darkness. 7. Dr. Rupak Kr. Gogoi,P.W.7, who, on requisition, medically examined the victim girl, proved the medical report, Ext.2 and his signatures on it. He testified t hat he recorded his opinion in the said medical report as under: (1) Evidence of recent sexual intercourse is not seen, but she was used to sex a ct. (2) Her age is above 18 years and below 19 years. (3)Evidence of pregnancy is detected at the time of examination and approx. dura tion of pregnancy 28 weeks (twenty eight). (4) Evidence on injury not found. This witness, in cross-examination, stated that he cannot say as to whether the pregnancy detected is first or second. 8. The last witness, P.W.8, is the I.O. who investigated the case. Being a formal witness he exhibited the charge-sheet, Ext.4. In cross examination he stated that there is no mention of the date of occurrence. He denied the suggestion that villagers made accusation against the victim but t he same was not recorded by him. 9. As per the FIR, Ext.1, dated 8.7.2005 the alleged incident of rape took place about 6 months ago. If it is calculated from the date of filing the FIR, the al leged incident took place sometime in the first week of February, 2005. As per t he FIR the village gathering took place / held on 4.6.2005. Admittedly the FIR w as lodged after a delay of six months or so. The said delay has not been explain ed in the FIR. In the evidence of PWs 1,2, and 3 also the same was not explained . But it appears that PWs 1,2 and 3 tried to justify the delay that it was due t o failure of the village ’Bichar’ in solving the issue . It is not the case of t he prosecution that victim had sexual intercourse with the appellant in the subs istence of love affairs and there was a promise from the side of the appellant t o marry her and she awaited till she was running pregnancy of six months. The cl ear evidence of the prosecutrix is that she had no love affairs with the appella nt and she was raped by him forcibly against her will in the night when she was sleeping alone in the house. Further case of the prosecution is that the victim failed in her resistance against the forcible rape. If that was the case, victi m would not have waited for a period of six months to inform her parents or her trusted persons. In her evidence she has not said that appellant entered the roo m in the night of the alleged occurrence with some arms in his hands and he, by showing arms, put her on threat and forcibly committed rape. In her evidence, sh e has also not stated that just before or at the time of committing the alleged rape or after committing the rape the accused threatened her not to disclose the incident to anybody or in case she disclosed it to others, she would face dire consequences. It is quite unnatural and it is rather difficult to accept that th e prosecutrix was prevented from disclosing the alleged incident immediately or atleast after few days for taking necessary action against the culprit. 10. It is the evidence of the prosecutrix that she was raped by the appellant on ly once but the medical officer, P.W.7 has given evidence that she was used to s ex act and as per genital findings, her labia majora admits two fingers. On phys ical examination the medical officer also found both the breasts of the prosecu trix soft and enlarged and slightly pendulous. The said medical report suggests that she has been enjoying sex even before and after the incident of rape allege dly committed by the appellant. From this it cannot be said with certainty that it was the appellant who is responsible for causing pregnancy to the victim girl or the prosecutrix used to sexual acts with the convict alone. 11. As is the usual case, in a case of rape, no eye witness is available. In the present case also no eye witness is found. The present case, is, therefore, to be decided on the basis of evidence of the prosecutrix and the medical evidence available on record. The law so far settled is that conviction can be recorded on the basis of sole evidence of the victim provided the same is found to be tru stworthy, reliable , consistent and sterling in nature gaining the confidence of the court. 12. As discussed earlier the victim, and for that matter, the prosecution, has n ot been able to explain the inordinate delay of six months in lodging the FIR. I t is also found that the conduct of the prosecutrix in remaining quiet for such a long period and not disclosing the alleged incident of rape till she was in th e advanced stage of six months pregnancy, without any acceptable reason, it is q uite unnatural and it is unsafe to convict the accused person on the basis of su ch evidence. 13. There is always a chance of improving the case against the accused if the FI R is lodged after a considerable delay. Delay in filing the FIR provides the vic tim to indulge in afterthought and such afterthought can play unwanted role to i mprove the case, mostly to avenge the old grudge. Although, no such case of old grudge or improvement of the case due to afterthou ght is found on record or could be proved, the criminal justice does not permit conviction of an accused on the basis of evidence which are not sufficient to pr ove the case beyond all reasonable doubt. The evidence of the prosecutrix in thi s case is not found to be of above standard set by the Apex Court and in my cons idered view no conviction can be awarded. 14. It is not necessary to refer the cases decided by the Apex court in the matt er of standard of proof and conviction to be made solely on the basis of evidenc e of the prosecutrix. The prosecution, in my considered view, could not prove it s case beyond reasonable doubt. The proof of pregnancy of the prosecutrix at the relevant time is not an absolute proof of sexual intercourse by the appellant w ith the prosecutrix, either by force or consent. As per the medical evidence, th e prosecutrix was above 18 years and below 19 years of age and the chance of hav ing sexual intercourse with consent of the prosecutrix cannot be ruled out. Unde r such circumstances, the appellant is entitled to get the benefit of doubt and acquittal on that ground. 15. In view of the above discussion based on evidence on record and appreciation of the evidence of the witnesses, I set aside and quash the impugned judgment o f conviction and sentence. Appeal stands allowed.The appellant is acquitted on b enefit of doubt. He be set at liberty forthwith if his further detention is not required in connection with any other case. The bail bond stands discharged. Ret urn the LCR forthwith.