JUDGMENT A.H. Saikia, J. 1. The learned Sessions Judge, Jorhat convicted the Appellant under Section 376 IPC and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1000/-, in default of payment of fine, to undergo further rigorous imprisonment for six months. 2. This conviction and sentence imposed by the judgment dated 18.12.99 passed in Sessions Case No. 52(JJ) 95 is under challenge in this Criminal Appeal. The factual matrix as narrated by the prosecution is essentially as under- That an FIR was lodged on 17.10.94 by one Smti. Kanaklata Dutta, Secretary of Jorhat District Nari Santha, P.W.-3, alleging that one Smti. Labanya Hazarika, wife of Sri Anil Hazarika of village Khangia, P.W.-4, informed the Nari Santha that Sri Nabi Bora, the accused-Appellant about 5/6 years back fetched a maid servant Annada, P.W.-13 from Goalpara, aged about 6/7 years to engage her in household works and on 3.10.94 taking advantage of the absence of his wife, the Appellant committed rape on the said maid servant. When the Appellant's wife returned home, the said Annada made a total disclosure to her about all those happenings. Being enquired about the matter by his wife in the next morning, the Appellant got enraged and having taken a dao in his hand threatened Annada with assault had droven her out of the house. Without having any altercation, the victim girl ran to the house of one Labanya Hazarika of Khangia village, P.W.-4 and took shelter in her house on 5.10.94. It was also contended in the said FIR that since Nari Santha came to learn about the said incident lately, there was a delay in filing the said ejahar. 3. A police case was registered under Section 376 IPC against the Appellant and investigation was ensued. The victim girl, P.W.-13 was examined medically on 24.10.94. On completion of the said investigation the Appellant was charge-sheeted to face trial for the offence under the above mentioned section. The Trial court examined as many as 15 witnesses including the prosecutrix(P W-13) and the medical officer(P.W.-2). 4. I have heard Mr. R.P. Sharma, the learned Counsel for the Appellant and also Mr. K. Munir, the learned P.P. Assam. 5. I have carefully gone through the evidences relied upon by the prosecution. Dr. Smti. The Trial court examined as many as 15 witnesses including the prosecutrix(P W-13) and the medical officer(P.W.-2). 4. I have heard Mr. R.P. Sharma, the learned Counsel for the Appellant and also Mr. K. Munir, the learned P.P. Assam. 5. I have carefully gone through the evidences relied upon by the prosecution. Dr. Smti. Geetima Baruali, P.W.-2 who examined the victim girl on 24.10.94, in her evidence, clearly opined that no evidence of rape was found on the person of the girl and the age of the girl was below 16 years. According to her on examination of the person of Smti. Annada, she found the following: Height-150 cm. Weight-42 kg. Teeth-28(14 upper and 14 lower) Breast-not fully developed. Auxilary and public hair-well developed. No sign of any eternal injury. Per vegins examination-vagina admits a tip of the finger. Valva-No eternal injury found. As per X-ray report. Occificate not completed around left elbow and left writ joint. On examination of vaginal no spermatozoa was found. 6. Pertinent it to mention that the incident took place on 3.10.94 and the prosecutrix was examined on 24.10.94 after a delay of 22 days. Though there was delay in medical examination of the victim girl, considering the age of the victim girl, at least some sort of slightest injury or inactive sperm ought to have been found on her private part or vagina respectively to support the case of the prosecution. But the doctor's testimony manifestly indicated that there was no evidence of rape found on person of the girl. In a rape case, the positive finding of Doctor is corroborative piece of evidence that helps the Court to arrive at a just decision. But such medical evidence shall depend on the reliability and trustworthiness of the victim version. Thus it would be appropriate to examine meticulously the testimony of the prosecutrix. 7. Having carefully gone through the deposition of the victim girl, Smti. Annada who was examined as P.W.-13 by the prosecution having recorded her age as about 16 years, it is seen that on the day of occurrence i.e. on 3.10.94, the Appellant taking advantage of the absence of his wife who went to School, had sexual intercourse with the prosecutrix against her will. She told the Appellant's wife after her return, about the incident and she expressed her desire to go back home as the Appellant committed rape on her. She told the Appellant's wife after her return, about the incident and she expressed her desire to go back home as the Appellant committed rape on her. On the next morning i.e. 4.10.94 when the wife of the Appellant asked him about the occurrence, the Appellant became enraged and tried to get a dao to assault Annada and immediately out of fear she ran away from the house of the Appellant and took shelter in the house of Labanya Hazarika P.W.-4. The Appellant also appeared there with a dao in his hand in the house of P.W.-4 and demanded Labanya Hazarika to hand over the said Annada to him. The Appellant further told that he would file a case against the victim girl. On the next day i.e. 5.10.94 the Police went to the house of Lahunya Hazarika and recorded her statement and thereafter said victim girl was examined by the doctor. In her cross, she deposed that on the day when she was raped by the Appellant, she did not disclose the incident to his wife due to fear because the Appellant was present in his house on that day. She also stated that before the day of occurrence the Appellant had sexual intercourse with her on two other days also and there was no bleeding when the accused had sexual intercourse with her. She denied the suggestion that she stole the gold ring and cash of Rs. 300/- from the house of the Appellant and that the Appellant demanded back the same. 8. A close scrutiny of the testimony of the prosecutrix, P.W.-13 categorically indicates that there was absence of corroboration in the said testimony with that of the medical evidence as already alluded. Her deposition did not disclose that she put any resistance at the time of commission of the offence of rape on her person and it was her categorical statement that there was no bleeding at the time of sexual intercourse on her by the Appellant. It did not come in her evidence that the Appellant forcefully raped her and she made any alarm or hue and cry. It did not come in her evidence that the Appellant forcefully raped her and she made any alarm or hue and cry. She also stated that prior to the date of occurrence, she had sexual intercourse with the Appellant on two earlier occasions which goes to show that she was habitual to such sexual intercourse with the Appellant as she did not make any complaint against such act of the Appellant done on her person prior to the incident in question. Absence of injury on the person of the prosecutrix, no alarm raised or resistance put by the prosecutrix, intercourse earlier on two occasions are some of the circumstances which may give rise to inference that the prosecutrix was consenting party. Taking into account the entirety of the facts and circumstances of the case, this Court can, without any hesitation hold that the testimony of the prosecutrix lacks trustworthiness and cannot be believed and relied upon and thus the impugned conviction and sentence on the basis of such testimony cannot be sustained. 9. In so far as the evidence of P.W.-4, Smti. Labanya Hazarika, is concerned, the witness in her evidence categorically stated that Annada, P.W.-13 came to her house on 5.10.94 at about 10 a.m. in the morning and at the time of her arrival she was sewing cloths inside her house. P.W.-13 called her through window and on being asked P.W.-13 told her that the Appellant committed rape on her and when she told that incident to the Appellant's wife, the Appellant drove her out of his house showing a dao. In cross, P.W.-4 deposed that P.W.-13 told her that she was ravished three days earlier. According to her, Police Station was at a distance of 3 km. from her house and she reported the matter to the Police Station on 6.10.94 in writing and next day the police took Annada from her house at about 1 O'Clock. She went to the police station with the victim girl and police interrogated victim girl at the Police Station for some time and sent her back with the said witness to her house. P.W.-4 also deposed in her cross that she reported that matter to Nari Santha on 6.10.94 in writing. She further stated that the Appellant lodged complaint case against the victim girl, Annada stating that P.W.-13 took shelter in her house after stealing money and ornament. P.W.-4 also deposed in her cross that she reported that matter to Nari Santha on 6.10.94 in writing. She further stated that the Appellant lodged complaint case against the victim girl, Annada stating that P.W.-13 took shelter in her house after stealing money and ornament. In her evidence, P.W.- 4 deposed that Nari Santha met P.W.-13 on 15.10.94 in her house. Apparently the evidence of this witnesses casts a clear doubt in the veracity of the prosecution case. It appears that when the prosecutrix P.W.-13 stated that she went to her residence of immediately after the day of occurrence i.e. 4.10.94 on being driven out and chased by the Appellant with dao P.W.-4 disclosed that it was only on 5.10.94 when the P W-13 approached her stating that the Appellant ravished her three days earlier. This goes to show a clear contradiction in the evidence of P.W.-13 and P.W.-4. Further, surprisingly, though this witness claimed that she went to the police station on 6.10.94 with the girl and informed the police in writing, she did not lodge any Ejahar with the police station rather she informed the matter on the same day to the Nari Santha. Nor was an attempt made to conduct medical examination on the person of P.W.-13 though the matter was reported to police by P.W.-4 on 6.10.94 and on next day i.e. on 7.10.94 the police also interrogated her at the Police Station. Moreover, the said Nari Santha came to her house only on 15.10.94 to meet P.W.-13 and ultimately an ejahar was lodged on 17.10.94. On the other hand, the P.W.-3, Smti. Kanaklata Dutta, the informant, said that on 11.10.94, P.W.-4 alongwith some other members of the Nari Santha reported them that the Appellant committed rape on his maid servant. They interrogated the girl in the house of P.W.-4 and then she lodged an ejahar to the Police Station on 17.10.94. The testimony of these two witnesses simply is unbelievable and as such cannot be the basis of impugned conviction. 10. Admittedly there was a delay of 14 days in filing the FIR with the Police but no endeavor was made by the prosecution to justify such delay. The testimony of these two witnesses simply is unbelievable and as such cannot be the basis of impugned conviction. 10. Admittedly there was a delay of 14 days in filing the FIR with the Police but no endeavor was made by the prosecution to justify such delay. Accordingly on proper inspection of the evidence of the relevant witnesses, the P.W.-3, P.W.-4 including the P.W.-13 the prosecutrix, this Court is of the view that the delay was not properly explained and this inordinate delay in filing FIR casts doubt on prosecution version. 11. Challenging the impugned conviction and sentence Mr. Sarma, the learned Sr. Counsel for the Appellant, relying on a recent judicial authority of the Apex Court reported in AIR 2002 SC 476 (Surjan and Ors. v. State of M.P.), has contended that since uncorroborated testimony of the prosecutrix could not be relied on and the delay in lodging the FIR remained unexplained, the present conviction and sentence of the Appellant is liable to be set aside and quashed. The Court finds sufficient force in his submission. 12. In Surjan's case(supra) the Supreme Court in paragraph 3 and 4 observed as under: 3. Here is a prosecutrix who has married twice and was deserted by her husbands claimed that while she was proceeding alone in the dark on the night of occurrence through on open field, the sky was over-cast and was drizzling in full swing, she was caught hold of by six persons who one-by-one committed rape on her. She has not chosen to divulge this to anyone on the said night inspite of the fact that she could reach home and her mother confronted her for coming late. She did not divulge it to her mother or anybody else on the second or even on the third day. It appears that she was subjected to medical examination. But the prosecution thought it fit not to show the result of the medical examination before the Court. We are not told why the result of such medical examination was not brought in evidence. 4. The inordinate delay in lodging the complaint before the police, i.e. 10 days, has not even been attempted to be explained. Even when she was examined as a witness in the Court, no question was put to her that long delay. We are not told why the result of such medical examination was not brought in evidence. 4. The inordinate delay in lodging the complaint before the police, i.e. 10 days, has not even been attempted to be explained. Even when she was examined as a witness in the Court, no question was put to her that long delay. In a case where six indicated persons should be visited with a maximum sentence of 10 years' RI, the Court cannot affort to act on the uncorroborated testimony of the prosecutrix unless the said evidence is wholly reliable. When looked at the testimony of P.W.-1 from all the different angles highlighted above, we are unable to hold that has testimony is wholly reliable. In such a situation, materials for corroborating the testimony of P.W.-1 could not be obviated. But unfortunately there is none. 13. Having regard to the above cited judicial authority and on proper appreciation of the evidences as alluded above, including the medical evidence, this Court is of the view that the prosecution has failed to prove its case beyond reasonable doubt and consequently, the impugned conviction and sentence of the Appellant under Section 376 IPC is hereby set aside and quashed. Bail bond furnished earlier hereby stands discharged. The Appellant shall be set at liberty forthwith, if otherwise he is not wanted in any other case. 14. In the result and for the foregoing reasons, the appeal succeeds and is hereby accepted. 15. Send down the LCR immediately along with the copy of the judgment and order. Appeal allowed