Judgment C.M.Prasad, J. 1. This appeal is against the judgment dated 17.1.2003/18.1.2003 of the Sessions Judge, Buxar passed in Sessions Trial No. 82/02 whereby the appellant has been convicted under Sec.376 of the Indian Penal Code and sentenced to undergo R.I. for 6 (six) years. 2. The fardbeyan (Ext.4) of the victim-informant Reena Kumari was recorded on 3.1.2002 at 4 P.M. by S.I. Ram Bilash Singh at Thana near Buxar (T) P.S. The informant alleged in her fardbeyan that on 2.1.2002 at 8 P.M. while the victim-informant Reena Kumari (P.W.2) was in a room of her house and her mother had gone out for purchasing medicine, the appellant Sheo Jee Prasad, who is the tenant in the house and who is an employee (peon) in the Department of Irrigation, finding her alone in the room, entered into the room and forcibly committed rape on her. She further stated that she protested and cried and in the meantime her mother (P.W.1) arrived there and she also protested and abused the appellant. Whereupon, the appellant assaulted her (P.W.1) on her head with small danda causing injury on the forehead. Receiving injury on the head, the mother (P.W.1) became unconscious and in the meantime, she (informant) fled away from the room and went to the house of neighbour Dineshwar Singh and she slept there for the whole night with the daughters of Dineshwar Singh. She also alleged that the appellant had confined her mother in a room of her house for the whole night and threatened her not to lodge any case before police. And, in the ensuing morning her mother (P.W.1) came out of the house on the pretext of getting her injury treated and she went to her son Sheojee Singh who was living nearby and then taking her (informant) and Sheojee Singh was going to the police station for lodging a case and in the way she gave her statement and her fardbeyan was recorded by the police. The informant identified her signature (Ext.1) on the fardbeyan. On the basis of fardbeyan, F.I.R. was registered at the P.S. and investigation commenced. On conclusion of the investigation, chargesheet was submitted against the appellant who was put on trial and he has been convicted and sentenced as above. 3. As many as four witnesses have been examined in this case. P.W.1 Chandrabati Devi, the mother of the informant, has turned hostile. On conclusion of the investigation, chargesheet was submitted against the appellant who was put on trial and he has been convicted and sentenced as above. 3. As many as four witnesses have been examined in this case. P.W.1 Chandrabati Devi, the mother of the informant, has turned hostile. P.W.2 Reena Kumari, is the informant herself, but she has also turned hostile. P.W.2 Usha Sinha is the doctor who had examined the victim-informant. P.W.4 Ram Bilas Singh is the I.O. who had investigated the case. Thus, only two witnesses have been examined on the point of occurrence and both of them have turned hostile. 4. The informant Reena Kumari deposed that in the night of occurrence about at 8 P.M. while she was alone in her house, the appellant came there and had beaten her and at the time of beating her mother had arrived there and she had abused the appellant asking why he was beating her (informant) whereupon the appellant assaulted her mother (P.W. 2) sustaining bleeding injury on her head. She also deposed that she had been examined by a doctor. Since, the informant did not say anything in her examination in chief about commission of rape, the prosecution declared her hostile. In her cross- examination by the A.P.P., she accepted that she had stated in her statement before police that the appellant had committed rape on her but in the cross-examination by the defence she stated that she had not stated before the police that the appellant had committed rape on her. She also stated that she had compromised the case and she had put her signature on the compromise petition. Thus, there is contradictory evidence about the informant having supported the case of prosecution before the police. Moreover, in her substantive evidence as adduced by her before Court in her examination in chief she, does not say anything about commission of rape on her and she has simply stated that the appellant had beaten her. Thus, the informant does not support the prosecution story of rape on her. 5. The P.W.1 Chandrabati Devi, the mother of the victim-informant has also deposed in her examination in chief that when she had returned to her house after purchasing medicine she saw that the appellant was beating her daughter. Thus, the informant does not support the prosecution story of rape on her. 5. The P.W.1 Chandrabati Devi, the mother of the victim-informant has also deposed in her examination in chief that when she had returned to her house after purchasing medicine she saw that the appellant was beating her daughter. Seeing this she had abused the appellant asking him to leave her (informant) whereupon the appellant had assaulted on her forehead. This witness was also declared hostile by the prosecution and during her cross-examination by the A.P.P. she declined to admit that she had given any statement before the police that the appellant had committed rape on her daughter Reena Kumari (informant). She further deposed that she had stated before the police only about the appellant having beaten her daughter. \n her cross-examination by the defence, she deposed that the appellant had simply beaten her daughter and besides this, he had not committed any other wrong act on her. She further deposed that she had compromised the case and she had put her L.T.I, on the compromise petition. It may be mentioned that the appellant was also charged under Sec.323 of the Indian Penal Code on the allegation of assault and the appellant was acquitted of this charge by the Trial Court on the basis of compromise. Thus, in her substantive evidence as adduced by the P.W.1 before the Court she does not say anything about commission of rape on her daughter (informant) and she simply says, she had been beaten at the hands of the appellant. 6. P.W.3 doctor Usha Sinha deposed that she examined the victim Reena Kumari on 3.1.2002 in presence of Dr. Md. Sulaiman and Dr. R.N. Prasad and found as follows:- No external injury was detected on any part of the body including private parts. A secondary sex character well developed. On P.V. examination admitted two fingers easily old rupture hymen was found and vaginal swab was sent for pathological examination and on pathological test, no dead or alive spermatozoa was found in swab. The doctor further deposed that according to the above findings, it was difficult to say whether she was raped or not. The age of the victim-informant was found above 16 years and below 17 years. The doctor further deposed that according to the above findings, it was difficult to say whether she was raped or not. The age of the victim-informant was found above 16 years and below 17 years. She proved the medical examination report as Ext.2 7 P.W.4 Ram Bilash Singh, I.O. of the case deposed that on 3.1.2002 while he was at Buxar (T) P.S., he received information that at Malbiya Nagar one girl had been raped and on receiving this information, he proceeded from the P.S. for verifying about the information and that while he was on the way near the P.S., the informant met him and he recorded the fardbeyan of the informant at that place and that the informants mother (P.W.1) and brother Sheojee Singh (not examined) had also signed on the fardbeyan as witnesses. The fardbeyan has been marked as Ext.3. The formal F.I.R. was proved by this witness Ext. 3/1. He further deposed that he proceeded, thereafter, towards the P.O. and reached at that place and he found the appellant present there. He also inspected the P.O. While describing the P.O. the I.O. further deposed that the house of informants mother contained two rooms and that informant Reena Kumari was sleeping inside the room and that appellant Sheojee Prasad used to sleep on Verandah of the house with informants mother Chandrabati Devi (P.W.1) who was the concubine of the appellant Sheo Jee Prasad. The I.O. also deposed at paras- 7 and 8 that he seized the Salwar of the victim-informant and had sent the same to Forensic Science Laboratory, Patna for chemical examination. He also deposed that Chandrabati Devi (P.W.1) had stated before him that the appellant had committed rape on her daughter. 8. During hearing the learned counsel for the appellant submitted that on the point of occurrence the prosecution has examined only two witnesses P.W.2 the victim and P.W.1 victims mother, but they have not supported the case of prosecution about commission of rape on her and both have turned hostile. It was submitted that prosecution drew attention towards their previous statement before the police but the same eventhough proved by the I.O. cannot be taken as substantive evidence to warrant a conviction of the appellant. 9. It was submitted that prosecution drew attention towards their previous statement before the police but the same eventhough proved by the I.O. cannot be taken as substantive evidence to warrant a conviction of the appellant. 9. The learned counsel further argued that the informant says that after arrival of her mother during the occurrence, when the appellant was assaulting her mother, she taking a chance, left the house and went to the house of the neighbour Dineshwar Singh and lived there for the whole night. Thus, Dineshwar Singh was a very important witness but he has not been examined by the prosecution. It was argued that the victims brother Sheojee Singh who had also signed on the fardbeyan as witness, has not been examined. 10. Further submission of the learned counsel was that the medical evidence also does not confirm the commission of rape, inasmuch as any dead or alive spermatozoa was not found in the vaginal swab when the informant was examined within 24 hours of the occurrence. The learned counsel also argued that the I.O. has said in his evidence that he had seized the victims Salwar and had sent it to Forensic Science Laboratory, Patna for chemical examination but prosecution has not proved any examination report in order to show any dead or alive spermatozoa on the Salwar. 11. Mr. Anil Kumar Singh-2 the learned counsel for the appellant submitted that the appellant has come out from the jail after serving out of the sentence. In the circumstances, there is no need to issue any release order in thjs regard. 12. In view of the infirmities as pointed out above by the appellants counsel, I find that the evidence as brought by prosecution is not sufficient to prove the charge against the appellant. In such view of the matters, the appellant is entitled to benefit of doubt. Hence, giving benefit of doubt, the appellant is acquitted of the charge. The conviction and sentences as passed by the Trial Court, is set aside. 13. This appeal, is accordingly allowed.