Judgment M.L.Visa, J. 1. The sole appellant Ghosan Bind has preferred this appeal against the judgment and order dated 9th December, 1986 passed by 8th Additional Sessions Judge, Munger, in Sessions Trial No. 744 of 1982 convicting and sentencing him to undergo imprisonment for life under section 376 of the Indian Penal Code. 2. When the case was called out for hearing the learned counsel of appellant appeared but he did not become ready to argue the case submitting that he had no instructions from his client. The appeal is being disposed of on merit after hearing the counsel for the State and after perusing the materials on record, following the decision of the apex Court in Bani Singh V/s. State of U.P. (AIR 1996 Supreme Court 2439). 3. The case of the prosecution briefly stated is that on 12.7.77 Police Inspector Sri P.N. Singh (not examined) went to village Kurwa, P.S. Kharagpur, District Munger and at about 5.30 P.M. recorded the Fardbeyan of informant Cheta Devi alias Pramila Devi, (P.W.2) who stated that one month before on a Tuesday when she and her husband Sudin Das (P.W.1) were sleeping in their house, the appellant along with two others, namely, Bishundeo Singh and Jamun Paswan, entered her house, awake them on the point of pistol, took both of them towards the bank of a river situate north of the village and they tied her husband with a tree and the appellant remained there for keeping a watch on her husband whereas Bishundeo Singh and Jamun Paswan took her to some distance and committed rape on her by turn. She could not raise bulla because cloth was inserted in her mouth by the companions of the appellant and after committing rape on her Bishundeo Singh and Jamun Paswan went to the place where they had left the appellant and from there appellant came and he also committed rape on her. Thereafter Bishundeo Singh and Jamun Paswan again came to her and repeated the act of rape on her by turn and thereafter appellant also followed them in committing rape on her. In this way appellant and his companions committed rape twice on her that night turn by turn. Thereafter Bishundeo Singh and Jamun Paswan again came to her and repeated the act of rape on her by turn and thereafter appellant also followed them in committing rape on her. In this way appellant and his companions committed rape twice on her that night turn by turn. After commission of rape the appellant and his companios along with the infomant and her husband proceeded towards the village but the appellant and his companions returned back after coming some distance and the informant and her husband went to their house where they told about the occurrence to mother-in-law of informant whose name is also incidentally Chaita Devi, wife of Nago Ravidas, (P.W.3). A number of villagers including Gulten Manjhi, Shiv sharan Manjhi, Meghu Ravidas (none of them examined) assembled at the house of the informant who were also told about the occurrence. On the basis of the Fardbeyan (Ext.2) of informant a formal FIR (Ext.1) was drawn up under section 376 IPC against the appellant and two others, namely, Bishundeo Singh and Jamun Chaukidar. The police after investigation submitted chargesheet under section 376 IPC against the appellant and co-accused Bishundeo Singh showing him absconder. The third one, namely, Jamun Paswan, Chaukidar was not set up for trial. The cognizance of the case was taken and the case of the appellant only was committed to the court of sessions because Bishundeo Singh was absconding. Charge under section 376 IPC was framed against the appellant and after trial he was found guilty and was accordingly convicted and sentenced to undergo R.I. for life. 4. The case of the appellant before the court below was complete denial of the charge framed against him and that he has been falsely implicated in this case at the instance of one Amo Singh, master of informant, with whom he had some dispute. 5. The prosecution has examined 4 witnesses in this case. Devendra Prasad Yadav (P.W.4) is a formal witness who has proved the formal FIR (Ext. 1), Fardbeyan (Ext.2) and medical examination report of informant (Ext.8). Pramila Devi (P.W.2) is the prosecutrix, Sudin Das (P.W.1) is the husband of the prosecutrix and Chaita Devi wife of Nago Ravidas (P.W.3) is the mother-in- law of the prosecutrix, who is a hearsay witness and was told about the occurrence by her son and prosecutrix. 6. 1), Fardbeyan (Ext.2) and medical examination report of informant (Ext.8). Pramila Devi (P.W.2) is the prosecutrix, Sudin Das (P.W.1) is the husband of the prosecutrix and Chaita Devi wife of Nago Ravidas (P.W.3) is the mother-in- law of the prosecutrix, who is a hearsay witness and was told about the occurrence by her son and prosecutrix. 6. Pramila Devi (P.W.2), the prosecutrix, has stated that on the day of occurrence she along with her husband was sleeping in her house when in the midnight the appellant awoke her by catching hold of her hand and she found Jamun Paswan and Bishundeo Singh standing near her husband and Bishundeo Singh had put a 303 (a fire arm) on the chest of her husband and ordered him to keep quite and thereafter they all took her and her husband near a river situated towards north of her house where her husband was tied up with a tree and appellant remained there and his companions Bishundeo Singh and Jamun Paswan took her in a field on the bank of river where they inserted cloth in her mouth and committed rape on her turn by turn. Thereafter Bishundeo Singh and Jamun Paswan went to the place where her husband was and from there the appellant came who also committed rape on her and Bishundeo Singh and Jamun Paswan again came to her and committed rape on her and returned. Thereafter appellant came and repeated the commission of rape on her. She has further stated that after the occurrence she along with her husband proceeded for her house along with the appellant and his companions who after covering some distance fled away and she along with her husband came to her house where she narrated the incident to her mother-in-law. She has said that her husband went to Police Station for lodging a case but nothing happened and one month thereafter when the Police Inspector came to her house, she got the Fardbeyan recorded. In her cross-examination she has stated that the night when the occurrence took place was dark and she identified the appellant and his companions by their voice but again she, addressing the court, stated that she identified them by their faces also. She has admitted that appellant was known to her and used to visit her house. 7. In her cross-examination she has stated that the night when the occurrence took place was dark and she identified the appellant and his companions by their voice but again she, addressing the court, stated that she identified them by their faces also. She has admitted that appellant was known to her and used to visit her house. 7. Sudin Das (P.W.1) has said that on the date of occurrence he was sleeping in his house with prosecutrix and the appellant and his two companions entered his house and awake him and thereafter they took him and his wife at the point of 303 (a fire arm) near a river situate towards north of his house and tied him with a tree and Jamun Paswan remained there whereas appellant and Bishundeo Singh took her wife to the bank of river and after some time they both returned and then Jamun went there and he also after some time returned and again the appellant and Bishundeo Singh went to the place where they had taken his wife and came back after some time and thereafter he and his wife along with appellant and his companions proceeded for their house but the appellant and his companions left them in the way and he then along with his wife came to his house and narrated the incident to his brother. He has further stated that neighbours had assembled at his house and they also came to know about the occurrence. He has further stated that he had gone to police station but the police did not accept his case on the pretext that he was a poor man and the police would implicate the appellant and his companions in some other dacoity case. In his cross- examination, he has admitted that it was dark night and he did not identify any of the miscreants and in the morning hulla was raised in the village that appellant and his companions were the persons who had committed the offence. But he has again stated that he had identified the appellant and his companions on the night itself. He has further stated that he did not see the commission of rape on his wife. 8. In this case the prosecution has neither examined the doctor who had medically examined the prosecutrix nor the I.O. Admittedly, the Fardbeyan has been recorded one month after the date of occurrence. He has further stated that he did not see the commission of rape on his wife. 8. In this case the prosecution has neither examined the doctor who had medically examined the prosecutrix nor the I.O. Admittedly, the Fardbeyan has been recorded one month after the date of occurrence. About the explanation for delay nothing has been stated in the Fardbeyan but for the first time the prosecutrix and her husband in their evidence have stated that they had gone to police station for lodging a case but the police did not institute any case. It is a case in which the wife of Sudin Das (P.W.1) is said to have been raped by three persons. It does not seem probable that for about complete one month he remained silent and did not take any step for making any complaint to the higher authorities of police against the person who had refused to register his case. If his case was not accepted by the police, he could have very well gone to the court for lodging the complaint, but for the reasons best known to him, he did not choose to do so. Similarly the prosecutrix also remained silent for one month. It was only one month after the occurrence when a Police Inspector visited the village the fardbeyan was recorded. This conduct of husband of prosecutrix as well as of prosecutrix herself makes the entire case of prosecution improbable and unbelievable. Besides this, there are contradictions in the evidence of the prosecutrix and her husband. According to the prosecutrix, the appellant remained at the place where her husband was tied up and his two other companions first committed rape on her whereas her husband Sudin Das (P.W.1) has stated that Jamun Chaukidar remained with him and it were the appellant and Bishundeo Singh who first committed rape on his wife. On the point of identification the evidence of both these witnesses is quite doubtful. They both have admitted that the occurrence took place in the dark night. The prosecutrix first stated that she identified the appellants and his companions by their voice but again she corrected herself by saying that she identified the appellants and his companions by their faces. On the point of identification the evidence of both these witnesses is quite doubtful. They both have admitted that the occurrence took place in the dark night. The prosecutrix first stated that she identified the appellants and his companions by their voice but again she corrected herself by saying that she identified the appellants and his companions by their faces. Her husband first stated that he did not identify any of the persons who committed rape on his wife and only in the morning when a hulla was raised he knew that appellant and his companions were the miscreants but again he has stated that he identified the appellant and his companions in the night itself. It is the evidence of husband of the prosecutrix that number of his neighbours had assembled at his house when he and his wife returned from the side of river who all knew about the occurrence and he told about the occurrence to his relations also but no one has come forward to state that on the day of occurrence he had heard about the occurrence either from the prosecutrix or from her husband. Under these circumstances, the entire case of prosecution becomes highly doubtful and I do not find it safe to rely on such evidence of prosecutrix and her husband. 9. In the result this appeal is allowed. The judgment and order of the court below convicting and sentencing the appellant under section 376 IPC is set aside. The appellant, who is on bail, is discharged from the liability of his bail bonds. 10. I agree.