JUDGMENT Hari Shankar Prasad, J. 1. This Criminal Appeal is directed against the judgment dated 30th September, 1996 and order of sentence dated 3.10.1996 passed by Session Judge in Session Trial No. 417/95/90/95 whereby and whereunder the sessions Judge convicted both the appellants, namely, Karu Hazra and Dina @ Dina Hazra and sentenced them to undergo R.I. for 7 years under Section 376(i)/34, IPC and they have been further sentenced to undergo R.I. for one year each under Section 448 and the Sessions Judge directed both the sentences to run concurrently. 2. The prosecution case in brief is that Raso Kumari gave a fardbeyan in her village, which was recorded by S.I. Rahman Khan on 28.3.1995 at 2.00 p.m. to the effect that in between the night of 27-28th March, 1995 at about 12.00 hrs when she along with her mother after taking meal was sleeping in a room, co-villager Karu Hazra and Dina Hazra entered into the room after making hole on the roof and appellant Karu Hazra pressed her mouth and dragged her to an adjacent room. Dina Hazra showed a chhura to her mother and asked her to maintain silence otherwise, she will be killed. Appellant Karu Hazra made Raso Kumari to lie on the ground and committed rape on her. she did not raise alarm due to fear of life. Blood started oozing out from her private part and sometime thereafter, both of them fled away after opening the door. Raso Kumari and her mother raised alarm after the accused fled away, where upon several co-villagers assembled. Next day, her pant was washed away by her mother, as there was no other pant for her. On the basis of that fardbeyan of Raso Kumari, a case under Section 376, IPC was registered and police after investigation, submitted the charge-sheet, cognizance in the case was taken and after commitment of the case to the Court of Sessions, the case came to the Court of Sessions Judge for favour of trial and disposal. In the trial Court, both the appellant were charged under Sections 376/34 and 448, IPC. 3. From the trend of statements recorded under Section 313, Cr PC and from the trend of cross-examination of the prosecution witnesses, it appears that there is total denial of occurrence and false implication of appellants by the informant and her mother. 4. In the trial Court, both the appellant were charged under Sections 376/34 and 448, IPC. 3. From the trend of statements recorded under Section 313, Cr PC and from the trend of cross-examination of the prosecution witnesses, it appears that there is total denial of occurrence and false implication of appellants by the informant and her mother. 4. In this case, altogether 8 witnesses have been examined by the prosecution to prove its case. PW 1 is Raso Kumari. She is the informant and the victim girl. PW 2 is Ghaltu Hazra @ Ghotu Hazra, he has been declared hostile and he has not supported the prosecution case. PW 3 is Ghutlu Hazra, he too has been declared hostile by the prosecution and he has also not supported the prosecution case. PW 4 is Jadu Hazra, he has also been declared hostile and he has not supported the prosecution case. PW 5 is Kewal Hazra, he has also been declared hostile. PW 6 is the mother of the informant and PW 7 is lady doctor, who had examined PW 1. PW 8 is I.O. of the case. 5. Assailing the judgment, learned counsel for the appellants submitted that there is delay in lodging of the FIR and that delay has not been explained by the prosecution. It was further pointed out that the lady doctor, who had examined the victim girl, did not find any sign of rape, as hymen was not ruptured and it cannot be said that, in such a situation, rape has been committed. It was further pointed out that no independent witness and even relations of PW1, victim lady, has supported the prosecution case and there is only evidence of PW 1 and PW 6 (mother of victim lady). It was also pointed out that both the witnesses are interested one and doctor has not found any sign of rape on Raso Kumari (PW 1). 6. PW 1 is Raso Kumari, who is said to have been raped. She has stated in her evidence that she, after taking meal was sleeping in her house with her mother on Monday at night. She further stated that at about 12.00 hrs in the night, the appellants entered into the room after making hole on the roof which is made of straw and Dina Hazra showed a chhura to her mother and asked her to maintain silence. She further stated that at about 12.00 hrs in the night, the appellants entered into the room after making hole on the roof which is made of straw and Dina Hazra showed a chhura to her mother and asked her to maintain silence. She has further stated that Karu Hazra caught and dragged her to an adjacent room and threatened her that if she raised alarm she will be killed. She has further stated that she was thrown on the ground and accused pressed her mouth and tore down her pant, which she was wearing and committed rape on her and thereafter, both of them fled away. She further stated that after the occurrence, she raised alarm upon which, persons have assembled there and she narrated the occurrence to them. She further stated that in the next day, police came and recorded her statement. She further stated that in her house, there are two rooms but there is no boundary wall. She has given description and chauhodi of her house. She has denied that her father has never taken any loan and her father has died three years ago. She further stated that she has got three brothers and one sister and all are younger to her. In para 12, she has stated that she was sleeping on separate cot and her mother was sleeping on another cot. She has further stated that she did not hand over her pant, which is made of cotton to the police because she has only on pant. In para 16, she has stated that a dhibari was burning at the time of occurrence in the room, in which she was sleeping with her mother. 7. PW 2 Ghaltu Hazra (c) Ghotu Hazra has come to say that he has nothing to say for the occurrence. He has further stated that PW 1 is his cousin sister and her mother sells liquor and works as a made-servant in the house of darogaji of muffasil PS, PW 3 is Ghultu Hazra. He has also not supported the prosecution case and has stated that PW 1 is his cousin sister and her mother sells liquor. PW 4 is Jadu Hazra. He has also not supported the prosecution case and has stated that Raso Kumari is his cousin sister and her mother sells liquor and her mother is in contact with the local police. PW 4 is Jadu Hazra. He has also not supported the prosecution case and has stated that Raso Kumari is his cousin sister and her mother sells liquor and her mother is in contact with the local police. PW 5 is Kewal hazra. He has stated that PW 1 is his niece. 8. PW 6 is Gandhari Devi, who is mother of PW 1. She has stated in her evidence that she was sleeping in her room with her daughter and other three children. She has further stated that both the appellant entered into the room after removing the roof, which is made of straw. She has further stated that appellants took her daughter Raso to another room, who was then aged 15 years and appellant Dina Hazra remained standing near her with a chhura in his hand and threatened her not to raise alarm otherwise he will stab her. She has further stated that appellant Karu hazra forcibly committed rape on her daughter and thereafter, came to her room and both of them fled away. She has further stated that she thereafter went to that room where her daughter was weeping and blood was oozing out from her private part. She had worn panti and frock and panti became blood stained. She has further stated that Raso also disclosed to her that Karu Hazra committed rape on her. According to this witness, when appellants entered into the room, there was darkness in the room and appellants had not covered their faces but had wrapped lungi around their neck. She has further stated that there were two cots in the room in which, she was sleeping. She has further stated that there were blood stains on the thigh of her daughter and there were blood stained frock and pant, She has further stated that blood was spread on the surface in small area. She has further stated that appellants had united her pant. 9. PW 7 is a lady doctor who has examined the victim girl. In course of examination, she has found the following :-- 1. There was no evidence of rape as hymen was not ruptured. Vaginal swab did not show presence of any sperm. 2. There was no injury on the private parts of the victim girl. 3. No any other evidence of rape was found on any other portion of the body of victim girl. 4. There was no evidence of rape as hymen was not ruptured. Vaginal swab did not show presence of any sperm. 2. There was no injury on the private parts of the victim girl. 3. No any other evidence of rape was found on any other portion of the body of victim girl. 4. The age of victim girl was estimated as below sixteen years. Breast were not fully developed. There were scanty auxiliary and public heirs. According to opinion of the PW 7, hymen was not found ruptured, there was no injury either on the private part nor there was any external injury. She did not find any sign of rape. 10. PW 8 is I.O. of the case. He has stated that on 18.3.1995, fardbeyan of Raso Kumari was recorded by the Officer- in-Charge and entrusted the investigation to him. He again recorded the statement of the victim girl and thereafter, visited the P.O. According to him, P.O. is the house of Raso Kumari situated in village Alkusa. There is only one main gate for entering the house with door and planks fitted. Wall is about 7 ft. high and roof is made of straw and in south-west corner, there was a hole worth entering of a person. He also found sign of foot steps. In the cross-examination, he has stated that statement of prosecutrix informant was taken at her residence. 11. It appears from the perusal of evidence on record, as well as documents exhibited in this case that occurrence took place in between the night of 27-28th March, 1995 but FIR was received in the Court of CJM on 31.3.1995. It further appears that whereas PW 1 has stated the police came to her house, recorded her fardbeyan and she gave her LTI. But PW 6 who is mother of the victim girl (PW 1) has stated that she went with her daughter to the PS where statement of her daughter was recorded. PW 6 has stated in her evidence that police came to her house three days after the occurrence. PW 1 has stated in her evidence that her pant was torn by the appellant Karu Hazra. PW 6 has stated in her evidence that police came to her house three days after the occurrence. PW 1 has stated in her evidence that her pant was torn by the appellant Karu Hazra. But PW 6 has stated that Karu had united her pant PW 1 has further stated that she did not hand over the pant to the police because she had only one pant but PW 6 has stated that pant was washed and, therefore, that pant was not shown to the police. But question is that when police had arrived in the house of the informant, then there was no sense in not showing the pant to the police. Pant could have been shown to the police and thereafter, could have been retained as she had only one pant, but when the pant had been washed, it could have been easily shown to the police because, according to the PW 1, Karu Hazra had torn the pant before commission of rape. It further appears that by the time police arrived, as per statement of PW 1, pant has been washed otherwise, pant with blood stains could have been shown to the I.O. It further appears that as per fardbeyan (Ext. 3), pant was torn or not, because as per PW 1, police had arrived in the house. From the evidence of the I.O., it also does not appear that when hole was made on the roof for a person to come down from out of the house to the room, then remains of the straw that were removed for making hole, must have fallen on the ground but I.O. has not found any such sign either in the room or just outside the room. Further, relations of PW 1 and PW 6 did not support the case of the prosecution; rather they have levelled allegation against the PW 6. 12. On the one hand, positive evidence showing involvement of appellants in the commission of rape, could have been produced by PW 1 and PW 6 such as blood stained pant, etc. were not produced nor I.O. verified those facts. On the other hand, relations who could have been better witnesses as their houses are surrounding the house of PW 6. But all of them have turned hostile or did not support the prosecution case. were not produced nor I.O. verified those facts. On the other hand, relations who could have been better witnesses as their houses are surrounding the house of PW 6. But all of them have turned hostile or did not support the prosecution case. Also, doctor has not found any sign of rape and she has even found hymen not ruptured, she did not find any injury; although PW 1 was immediately examined and as per evidence of PW 1 and PW 6, blood was oozing out from the private part of PW 1 and there were blood stains on the pant also. Besides, it was spread over one bitta. Besides, receipt of the FIR in the Court of CJM on 31.3.1995 for occurrence which took place in between the night of 27-28th March, 1995. All these facts goes to show that there is some flaw in the prosecution case, besides, two person entered into the room but only one committed rape and other could have also followed the suit but he entered the house only to facilitate commission of rape by Karu Hazra. Further, when both of them stealthily entered the house, they could have covered their faces. Further, PW 1 has stated that dhibri was burning in the room but PW 6 has stated there was darkness in the room. As such, there was no light, in such a situation, identification of the appellants by witnesses were impossible. It is true that PW 7 has committed some error in issuing injury report but that cannot be a ground for presuming that rape has definitely been committed. Further, similar mistake has also been committed by PW 8 in issuing requisition for examination of the victim girl by the doctor. 13. Having considered the materials on record both oral and documentary I am of the view that learned Court below has failed to properly appreciate the existence and has committed an error in finding the appellants guilty. It is, therefore, clear from the discussion made above that the impugned judgment of the learned court below suffers from illegality which requires interference. 14. There is merit in this appeal and it succeed. It is, therefore allowed and the judgment/and/order of the learned court below is hereby set aside. It is, therefore, clear from the discussion made above that the impugned judgment of the learned court below suffers from illegality which requires interference. 14. There is merit in this appeal and it succeed. It is, therefore allowed and the judgment/and/order of the learned court below is hereby set aside. Appellants are not found guilty for the offence under Sections 376 and 448, IPC levelled against them and they are also acquitted of the charges levelled against them. They are also discharge from their liability of the bail bond, if any.