Judgment I.P.Singh, J. 1. The sole appellant has been convicted under section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years with a fine of Rs.2000/-, in default of payment of fine, to undergo rigorous imprisonment for one year more. 2. The prosecution case, in short, is that on 10.8.1990 at about 12 Oclock in the noon informant Shakuntala Devi had gone to take bath on the hand-pipe of Pachu Thakur. When she was making preparation for taking bath, suddenly appellant appeared there and picked up the informant in his lap and took her to a vacant room situated in the Khalihan of Satahu Thakur by pressing her mouth and threw her down on the earth and forcibly committed rape on her after removing her Sari. When she raised alarm, the appellant put knife on her neck and after committing rape fled away. It has been stated that the informant disclosed this occurrence to her mother Etabaria and to the Mohalla people. Then the people of the Mohalla began to search the accused and they could apprehend him on the following morning and they took him to the Camp Police Station Kot Bazar and the A.S.I. recorded the Fardbeyan of the informant. On the Fardbeyan of the informant formal F.l.R. was drawn up. The police after investigation submitted charge sheet against the appellant. Accordingly, cognizance was taken and the case was committed to the court of sessions for trial. Ultimately the trial concluded with the result as indicated above. The appellant pleaded not guilty. 3. Prosecution in support of its case examined altogether six witnesses. P.W. 1 is Shakuntala Devi (informant), P.W. 2 is Jagarnath Paswan, P.W. 3 is Upendra Paswan, father of the informant, P.W. 4 is Etabaria Devi, mother of the informant, P.W. 5 is Bhikhari Paswan, a hearsay witness and P.W. 6 Dr. Renu Chatterjee, who examined the victim girl and issued medical report, Ext. 1. 4. P.W. 1, the informant has fully supported the case of the prosecution as stated in her Fardbeyan. According to her, on the date of occurrence at about 12 O Clock in the noon she had gone to take bath on the hand pipe of Baru Thakur. The acc used suddenly came and took her in his lap and went near a hut and forcibly committed rape on her by pressing her mouth. According to her, on the date of occurrence at about 12 O Clock in the noon she had gone to take bath on the hand pipe of Baru Thakur. The acc used suddenly came and took her in his lap and went near a hut and forcibly committed rape on her by pressing her mouth. When she stared raising alarm, she was threatened by the appellant that if she will raise alarm, she will be killed. Thereafter she started weeping and after the occurrence she came to her house and disclosed about the occurrence to the villagers, namely, Bhikhari, Jagarnath Paswan and Upendra Paswan. She has also stated that her mother was not present at the house. She had gone to village Beeta to her sisters house and when her mother came back she disclosed about the occurrence to her. The villagers arrested the accused on the next day and took him to the Sitamarhi Police Station. She also went to the police station and gave her Fardbeyan and she also put her thumb impression over it. The other witnesses P.Ws. 2, 3, 4 and 5 have also supported the version of the appellant. P.W. 6 is Dr. Renu Chatterjee. She examined the victim girl on 11.8.90. She did not find any scratch or foreign hair on her private part or her linen. She has further stated that there was no sign of any semen on her private part or her linen. She took the vaginal swab and sent to the pathologist Dr. Meena Sharma, Sadar Hospital, Sitamarhi for pathological examination. The report of the pathologist showed absence of spermatozoa. A few epitheliel cells were found. In her cross examination she has stated that she did not find any injury externally or internally on her private part. The investigating officer of this case has not been examined. 5. Learned counsel for the appellant has submitted that the testimony of the victim could not be believed and on her testimony the court below should not have convicted the appellant. It has been further submitted that she has also given her statement stating that no rape was committed by the appellant. It has also been submitted that even the report of the pathologist showed absence of spermatozoa after examination of the vaginal swab. As such, there was no positive finding of rape as per medical report. It has been further submitted that she has also given her statement stating that no rape was committed by the appellant. It has also been submitted that even the report of the pathologist showed absence of spermatozoa after examination of the vaginal swab. As such, there was no positive finding of rape as per medical report. Even the age of the victim girl was not ascertained. It has been emphatically submitted that as per the statement of P.W. 3 his statement was recorded by the police 1/2 hours after the occurrence but the case was instituted at 7.30 in the evening on the alleged statement of P.W. 1 as such possibility of false implication of the appellant cannot be ruled out. That apart she has stated in her Fardbeyan that after the incident of rape she went to her house and informed her mother (P.W. 4) and also the other persons of her Mohalla who were not examined. However P.W. 4, mother of the victim girl has specifically stated in her deposition that she was not present in the village on the date of occurrence and has not supported this version of the informant. The victim also later changed this version in her deposition. 6. It is true that as per the ratio held by apex court in cases of rape the accused could be convicted on the sole testimony of the procecutrix if her testimony is reliable and trust inspiring. In the facts and circumstances of this case i find that there are vital material contradictions in her testimony. That apart the investigating officer of this case has not been examined to explain why this case was recorded on the statement of victim and not on the statement of P.W. 3 whose statement was recorded soon after the occurrence as P.W. 3 himself has stated that his statement was recorded as early as after one or two hours of the occurrence. The medical report also does not support about the commission of rape. 7. In view of above it is clear that the prosecution could not prove its case beyond reasonable doubt and the appellant deserve benefit of doubt. Accordingly, the appellant is acquitted of the charges levelled against him. The conviction and sentence passed by the court below against the appellant are set aside. It has been submitted that the appellant is in custody. Accordingly, the appellant is acquitted of the charges levelled against him. The conviction and sentence passed by the court below against the appellant are set aside. It has been submitted that the appellant is in custody. It is directed that the appellant be released forthwith if not required in any other case. In the result, this appeal is allowed. 8. Mr. Arun Kumar Tripathy has assisted the Court in this case as amicus curiae. Patna High Court Council of Legal Aid and Advice is directed to pay his fee.