JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. B.M. Choudhury, learned amicus curiae for the Appellant and Mr. P.C. Gayan, learned Public Prosecutor, Assam. 2. This criminal appeal has been filed by the Appellant from jail assailing the judgment and order dated 22.3.2004 passed by the learned Sessions Judge, Jorhat in Sessions Case No. 88(JJ)/2002 whereby the Appellant was convicted under Section 376(1), IPC and resultantly sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs. 10,000 in default, to undergo further rigorous imprisonment for 6 months. 3. The prosecution case in brief is that an FIR was lodged by PW.1, the victim girl/prosecutrix wife of PW2 on 27.5.2001 with the Officer-in-Charge, Borholla police station alleging that on 22.5.2001 she was raped by the Appellant inside her house when her husband was not present in the house. 4. On the basis of the said FIR, police started investigation and on completion thereof submitted chargesheet against the Appellant for his trial under Section 376, IPC. 5. The learned Sessions Judge on committal of the case, being exclusively triable by the Sessions Court framed charges against the Appellant under the aforesaid section. 6. During the trial, the prosecution examined as many as 11 witnesses including the victim girl as PW1, Dr. Ganesh Ch. Sarmah as PW5 who examined the prosecutrix when defence adduced none and claimed to be tried pleading not guilty. 7. The learned Sessions Judge on appreciation of the material evidence on record both oral and documentary found the Appellant guilty of the offence of rape on PW1 and consequently convicted him and sentenced as already noticed above. 8. Mr. Choudhury, learned amicus curiae assailing the impugned judgment of conviction and sentence has advanced three pronged attack, namely, (1) there was an inordinate and unexplained delay in filing the FIR on 27.5.2001, when the inordinate took place on 22.5.2001; (2) that the victim girl did not raise any hue and cry nor did she put any resistance against such criminal assault and (3) there was no injury found on her private part when she was medically examined by the Doctor, PW5 who in his medical evidence did not find any sign of rape on PW1. 9. In view of the above fact situation as projected in the evidence of PW1 and PW5, the victim girl and the Doctor respectively, according to Mr. 9. In view of the above fact situation as projected in the evidence of PW1 and PW5, the victim girl and the Doctor respectively, according to Mr. Choudhury the conviction of the Appellant under Section 376 IPC is not tenable in law and accordingly the same may be quashed and set aside. 10. Mr. Gayan, learned Public Prosecutor, relying heavily on the evidence of PW1, victim girl and PW5 the Doctor, has contended that the evidence of PW1 is sufficient to convict the Appellant under the aforesaid section. According to him, an Indian lady taking into account her own prestige and social consideration cannot tell lie to her husband against such commission of offence. According to him, PW1 herself stated that on the plea of being asked by her husband to take something from his house, the Appellant came to her house at the midnight in the absence of her husband who went to witness a 'Bhawna' and having believed him, she allowed him to sit inside and at that moment the Appellant grabbed her, fell down in bed and committed the offence. Referring to medical evidence he has asserted that it is true that the victim girl being a married women, there cannot be any possibility to find any sign of rape on her private part because as a married lady she was subjected to sexual intercourse. Therefore, on the plea that medical evidence did not refer any sign of rape itself, the Appellant is not entitled to get any benefit of doubt taking into account the specific and exclusive evidence introduced by PW1. 11. We have given our thoughtful consideration to the arguments so advanced by the learned Counsel for the parties and also meticulously examined the depositions of all the witnesses particularly, the PW1, victim girl and PW5, the doctor. 12. PW.1, in her evidence, as already submitted by the learned Public Prosecutor evidenced that on the day of occurrence, i.e., on 22.5.2001 at about 12.00 PM at midnight when her husband was not at home who went to enjoy Bhawna, she was sleeping along with her four years old child and then accused knocked the door and asked her to open by saying that her husband sent him to take something. Hence, she opened the door and allowed the accused to enter inside and asked him to sit and at that time the Appellant grabbed her and fell her on bed and raped her. Meanwhile, when her husband returned and hearing his sound of coughing near the gate, the accused suddenly fled away leaving the victim woman on the bed. Her husband thinking the intruder to be a thief, chased him down but could not catch him. The Appellant fled away leaving a pair of 'hawai sandal' and a torch-light. On asked by her husband, she disclosed about the incident. Thereafter, they gave a 'Bichar' in the village and since the same was not settled they lodged a complaint with the police station and that caused the delay in filing the FIR. 13. In her cross, she testified that she knew the Appellant as a co-villager. He was married and had visiting terms with them. The 'Met' (extra judicial meeting) was held at Namgarh after 2 days of occurrence as because people did not gather at the very next day of the occurrence. In 'Mel' the Appellant came, but no decision could be taken in the 'Mel'. Accordingly no written paper was made. She was categorical in her cross that she did not sustain any injury in her body and in her private parts and her cloths were also not torn. She denied the suggestion that she was not raped by the Appellant and she instituted a false case. 14. Coming to the Doctor's evidence, it appears that the doctor in his evidence found the following: Identification Marks (1) a scar mark, 1 cm long on right forearm on anterior surface (2) A black mole on right side of neck. Height-151 cm Weight-40 kg Teeth-16/16 No any mark of external injury seen on her body Gynaecological examination Vaginal introitus-loose Hymen-flushed with vaginal wall. No any injury seen on vulva, vagiria or cervice uteri. Uterus-Normal in size. Ante-verted Laboratory examination of vaginal smear: No spermatozoa seen in the smear. Radiological examination of left wrist and elbow joint Ossification is completed in the bones around the left wrist joint and left elbow joint. The girl is above 18 years 15. In his opinion, the Doctor stated that the age of the lady was 18 years and there was no medical evidence of rape on her. 16. Radiological examination of left wrist and elbow joint Ossification is completed in the bones around the left wrist joint and left elbow joint. The girl is above 18 years 15. In his opinion, the Doctor stated that the age of the lady was 18 years and there was no medical evidence of rape on her. 16. On close consideration of both the witnesses, as mentioned above, i.e., PW1 and PW5, the same does not inspire any confidence in the mind of this Court to accept the same as no convincing and reliable evidence was adduced so as to indict the Appellant with the offence of rape on PW1. PW1, in her evidence specifically and expressly testified that at the time of commission of such offence she did not suffer any injury on her and private parts nor was her cloth torn out. It thus, goes to show that there was absence of total resistance to save her from the grip of the Appellant, who fulfilled his lust silently. It is also seen in evidence that she did not make any hue and cry or raise any alarm when the Appellant committed rape on her. She simply pleaded that on the date of occurrence the Appellant came to her house saying that her husband sent him to take something and she opened the door and allowed him to sit after lighting the lamp and at that moment the Appellant grabbed her and fell her on the bed and raped her. Surprisingly and amazingly no hue and cry or resistance on her part was ever made. This piece of evidence is also duly corroborated with the medical evidence of PW5 who was categorical that no injury was seen on vulva, vagina or cervice uteri and as such there was no medical evidence to support the offence of rape on her. 17. It is to be noticed herein that the alleged crime was committed on 22.5.2001 and she was examined on 28.5.2001. There is no explanation from the prosecution side of such delay in examining the victim lady at its earliest possible time. It also needs to be noticed that FIR was lodged only on 27.5.2001. Only explanation of lodging the delayed FIR is that her husband had gone for a village 'Bichar', i.e., 'extrajudicial meeting' to make a settlement on this issue. It also needs to be noticed that FIR was lodged only on 27.5.2001. Only explanation of lodging the delayed FIR is that her husband had gone for a village 'Bichar', i.e., 'extrajudicial meeting' to make a settlement on this issue. It has not come on the evidence that what type of settlement was going to be made in the village 'Bichar' when it is a case of offence in the nature of heinous crime of rape under Section 376, IPC. 18. That being the position, this Court is of the view that evidence of PW1 cannot be accepted to be reliable, believed and relying upon the medical evidence the conviction of the Appellant under Section376, IPC cannot be sustained. This Court has no hesitation to hold that the prosecution has miserably failed to prove its case against the Appellant for the commission of offence under Section 376, IPC. 19. Consequently, the impugned conviction and sentence of the Appellant stands quashed and set aside. 20. The Appellant be set at liberty forthwith, if he is otherwise not wanted in any other criminal case. Send down the LCR immediately, 21. Before parting with the case records, this Court would like to put on record the appreciation to Mr. B.M. Choudhury for his valuable assistance rendered in arriving at a decision abovementioned in this case as amicus curiae. Accordingly, we order that he is entitled to professional fees, which is quantified at Rs. 2,500. 22. In the result, this criminal jail appeal succeeds and stands allowed. Appeal allowed