Crl.A. 129/2006 BEFORE THE HON’BLE MR JUSTICE P.K. MUSAHARY Heard Mr. N. Ahmed, learned counsel for the appellant. Also heard Mr BB Gogoi, l earned Addl. PP, Assam. 2. This appeal is preferred against the judgment and order dated 17.5.06 re ndered by the learned Adhoc Addl. Sessions Judge, FTC, Sonitpur, Tezpur in conne ction with Sessions Case No. 4(s)/2000 arising out of GR Case No.884/1998 convic ting him under Section 376 IPC and sentencing him to undergo RI for 7 years and to pay a fine of Rs.5000/- and in default, to pay fine, to undergo RI for anothe r 1 year. 3. Briefly stated the prosecution story is like this:- An FIR was lodged by Mrs. Kasmati Begum, on 8.8.1998 with the Officer-in -charge of Jamuguri Police Station alleging, inter alia, that due to financial h ardship she was working as part time maidservant in the house of the accused app ellant at Kusumtola. One day while she was working in his house, in absence of h is wife, the accused forcibly raped her. Due to aforesaid incident she became pr egnant and the accused appellant tried to cause miscarriage by taking her before various Doctors and Hospitals. On 10.7.1998 the accused paid an amount of Rs.10 00/- by putting his signature in a paper in presence of witnesses and promised t o pay another amount of Rs.10,000/-. On the basis of the aforesaid FIR, Jamuguri P.S. Case No. 101/98 was registered under Section 376/493 IPC and after complet ion of the investigation charge sheet was submitted against the accused appellan t under the aforesaid Sections. Thereafter GR Case No. 884/1998 was registered a nd remanded to the Court of Sessions Judge, Sonitpur, Tezpur and accordingly Ses sions Case No. 4(S)/2000 was registered. On the basis of the materials collected by the Investigating Agency and other materials on record, charge was framed un der Section 376/493 IPC, which was read over and explained to the accused appell ant. He pleaded not guilty and claimed to stand trial. 4. The prosecution examined in all 9 witnesses including the victim, the Me dical Officer and the Investigating Officer. The defence examined no witness. In his statement under Section 313 Cr.P.C. he denied all the questions put by the Court. After taking into consideration the evidence and materials on record and also upon hearing the learned counsel for the parties, the learned Trial Court c onvicted and sentenced the accused appellant as mentioned earlier. 5. Mr. Ahmed, learned counsel for the appellant submits that there are many contradictions in the evidence of the victim and no case of offence under Secti on 376/493 IPC has been established. The FIR was admittedly filed after a delay of more than 8 months, to be precise, only when she was in the advanced stage of 7 months. The allegation brought against the appellant, according to Mr. Ahmed, cannot be believed and no prosecution could be initiated against him on the gro und of inordinate delay in filing the FIR. The allegation of payment of Rs.1000/ - and the promise to pay another amount of Rs.10,000/- to the victim for abortio n has not been proved and in fact such allegation was not made before the I.O. w hen her statement was recorded under Section 161 Cr.P.C and it was also not stat ed before the learned Trial Court while making her deposition. 6. I have gone through the evidence of the prosecution witnesses particular ly, the evidence of the victim (PW-1). I have taken note that the FIR was lodged while she was carrying 7 months baby in her womb. According to her, she was imp regnated due to rape by the accused appellant. The victim in her statement under Section 164 Cr.P.C. as well as deposition did not state anything about how she resisted when the accused appellant tried to rape her. Except the oral objection there is nothing on record that she physically resisted when the attempt was ma de to commit rape on her. There was no struggle in the process of resistance. Sh e has never said that she sustained any injury, major or minor, on her person or her wearing apparel was torn in the struggle for saving herself from the allege d commission of rape. Admittedly, the victim was a married woman, although the s tory of being divorced has not been proved, and in fact it is not relevant for t he purpose of this case. From the evidence of the victim there is no doubt that she was a consenting party, she having not physically protested against the alle ged act of commission of rape. Moreover, she never disclosed the aforesaid incid ent before anybody and waited till she was carrying 7 months baby in her womb. T he delay of 7 months in filing the FIR has been sought to be explained by her. I t is because she was allegedly promised by the accused appellant to marry her. T here is no cogent proof to the fact that the accused appellant made such promise . There is no evidence in this regard. It is only in her deposition which was no t supported and corroborated by any witness. 7. The law, as settled by now, is that in the matter of sexual assault or r avishment corroboration is not a must. The medical evidence is also not a must i n all the cases. It is sufficient if the evidence of the victim is cogent, relia ble, consistent and gaining confidence of the Court. I have gone through the con tents made in the FIR and the statement made under Section 164 Cr.P.C. and the deposition tendered by the victim . It has been found that she has not made any statement regarding the same. She has stated the same only in her statement unde r Section 164 Cr.P.C., which is not a substantial peace of legal evidence in a c riminal trial. This aspect of the matter could not be proved by the prosecution by way of producing independent witness corroborating her statement under Sectio n 164 Cr.P.C. 8. The admitted position is that the victim was serving as part time maidse rvant in the house of the accused appellant. She carried 7 months baby in her wo mb while she lodged the FIR. At the time she made her deposition before the lear ned trial Court, the child was born and at that time the said baby was 3 years o ld. The prosecution could have confirmed the biological parentage of the baby by way of DNA test. It was not done so and it is not confirmed as to whether the a ccused appellant is the father of the said baby. On the other hand, defence also did not demand for DNA test to prove if in his defence that the child was not b orn out of the physical contact between himself and the victim women. No reason or explanation has been found from the prosecution as well as the defence as to why the DNA test could not be undertaken which could have led to a firm conclusi on. In my considered view, the prosecution conducted the trial in a manner not d esired under the existing procedure and the lapse on the part of the prosecution has kept the vital issue, as to the parentage of the child, as unproved. The pr osecution failed to prove the case beyond all reasonable doubt, I mean to say th at the doubt as regards the parentage of the child and for that matter whether t here was a physical contact between the accused appellant and the victim has rem ained unproved. 9. Under such a situation, the accused appellant must get the benefit of d oubt and acquittal on that ground. Accordingly, I have no other option but to al low this appeal acquitting the accused appellant on benefit of doubt. It is orde red accordingly. The accused appellant Md. Sahabuddin Ali shall be set at libert y forthwith, if his further detention is not required in any other case. The bai l bond stands discharged. 11. Send down the LCR forthwith.