JUDGMENT A.N. Jindal, J.:-­ This appeal is directed against the judgment of conviction and sentence dated 22.1.1997 passed by Sessions Judge, Hoshiarpur, vide which accused-appellant Vijay Kumar (hereinafter referred to as the accused) was convicted under Sections 376 and 506 of the Indian Penal Code (for short ‘IPC’) and sentenced to undergo rigorous imprisonment for seven years and to pay [me of Rs.500/- u/s 376 IPC and to undergo imprisonment for one year under Section 506 IPC. 2. The prosecutrix (name not disclosed) and the accused are neighbours. There is a water tap near the house of Kamlesh (PW11) in the vicinity, from where, the neighbours used to fetch water. On 13.2.1996 at about 11.00 a.m, when the prosecutrix had gone to fetch water from the public tap, the accused came and forcibly took her into the house of Kamlesh and raped her. Kamlesh when returned, witnessed the occurrence through the window of the house. On seeing her, the accused felt nervous and fled away. The prosecutrix went to her house, informed her grand­ mother and one Chanan Masih, who was sitting along with her. Consequently, the prosecutrix vide her statement Ex.PM informed the matter to the police, which formed part of the First Information Report. Her statement under Section 164 of the Code of Criminal Procedure was also recorded. Completion of investigation was followed by the submission of the charge report under Section 173 Cr.P.C. 3. On commitment, the accused was charged under Section 342, 376 and 506 IPC, to which he pleaded not guilty and claimed trial. 4. In order to substantiate the charges, the prosecution examined as many as fourteen witnesses; PW1 Dr. Surinder Gangar of Civil Hospital, Hoshiarpur, who radiologically examined the prosecutrix, observed that her age was between 17 to 20 years. PW2 Dr. Jatinder Singh Walia, a Dentist, who had conducted the dental check up of the prosecutrix to assess her age, observed vide report Ex.PB that since the roots of the second molars were fully developed, so her age could be between 14 to 17 years. PW3 Dr. Satinderpal Singh, who had medically examined the accused opined that the accused was fit to perform sexual intercourse. PW 4 Karam Chand, Clerk from the office of Civil Surgeon, Hoshiarpur while proving the birth certificate (Ex.PF) has stated that according to their records, date of birth of the prosecutrix was 21.8.1975. PW5 Dr. PW3 Dr. Satinderpal Singh, who had medically examined the accused opined that the accused was fit to perform sexual intercourse. PW 4 Karam Chand, Clerk from the office of Civil Surgeon, Hoshiarpur while proving the birth certificate (Ex.PF) has stated that according to their records, date of birth of the prosecutrix was 21.8.1975. PW5 Dr. A.K. Singla, Judicial Magistrate proved the statement of the prosecutrix recorded under Section 164 Cr.P.C. 5. PW6 Dr. Anupinder Kaur, Medical Officer, PRC, Budhabar on medico legal examination of the prosecutrix, observed as under:­ “There were no stains of blood or semen on the clothes. No other evidence of resistance could be noticed i.e., any injury over any part of the body in general and around the genitals in particular. No exhipherial tissue was seen in the nails of the victim. No foreign pubic hair found. On examination of genitalia: No blood stains were present on medial side of thighs and vagina. There was no matting of pubic hair. Hymen was not intact and there was no sign of any fresh injury on vulva, vagina, perennial and hymen. There was no evidence of any venereal disease. On P/V examination: Vagina admitted two fingers easily without any difficulty. Three vaginal swabs were taken before examination. No spermatozoa could be seen under microscopic examination on the swabs, packed and handed over to the police for chemical examination along with the clothes of the victim.” She opined that possibility of rape having been committed on her cannot be ruled out. During the cross-examination, she has stated that there was no internal or external injury on the person of the prosecutrix, therefore, the possibility of her being habitual to intercourse cannot be ruled out. 6. The prosecutrix while appearing in the witness box has stated that when she was returning from the tap, the accused caught hold of her and took her to the house of Kamlesh, where she was raped. Kamlesh came and saw the incident through the window and on seeing her, the accused fled away. While explaining the delay in medico legal examination, she stated that she went to the Hospital at Hazipur on 14.2.1996, but the doctor was on leave and she was examined on 15.2.1996. The explanation submitted by the prosecutrix is not plausible. 7. During cross-examination, she has stated that it was a narrow street through which only one cycle could pass. While explaining the delay in medico legal examination, she stated that she went to the Hospital at Hazipur on 14.2.1996, but the doctor was on leave and she was examined on 15.2.1996. The explanation submitted by the prosecutrix is not plausible. 7. During cross-examination, she has stated that it was a narrow street through which only one cycle could pass. The houses of her four relations are near the water tap. The house of Kamlesh is comprised of two rooms. Both are inter-connected. The street is visible from the room and the window of the room opens in the street, which was open and from which Kamlesh had peeped inside. There was no cot in the room. The whole incident took place on the floor. She further narrated that her brothers Sanjay @ Ravi and Som Dutt were prosecuted for cow slaughter. The prosecutrix has denied the suggestion that since Ram Kishan, brother of the accused, had appeared as witness against her brothers in the cow slaughter case, therefore, she has been instrumental in implicating him in this case. 8. PW8 Chanan Masih is the witness before whom the prosecutrix had unfolded the story leading to the rape upon her. During the cross­ examination, he has made contradictory statement that when he was in the house of Dharam Pal, then the prosecutrix and her grand-mother came to him and told about the incident. 9. PW9 ASI Balbir Singh, Investigating Officer, PW10 HC Tarsem Singh, PW12 Constable Subhash Kumar, PW13 Inspector Jagdish Singh and PW14 Constable Baldev Dutt are formal witnesses. PW11 Kamlesh is an eye-witness of the occurrence, but she has not supported the prosecution case. 10. When examined under Section 313 Cr.P.C, the accused pleaded innocence. Ultimately, the trial resulted in conviction of the accused. 11. Hence, the present appeal. 12. Before the question regarding the commission of rape is settled, I lay my hands to determine the most crucial question i.e., the age of the prosecutrix. According to Dr. Surinder Gangar (PW1), she was between 17 to 20 years and as per Dr.Jatinder Singh Walia (PW2), she was between 14 to 17 years. The prosecutrix gave her age as 16 years at the time of the occurrence. Even the Radiological report could carry variation of two years on either side. According to Dr. Surinder Gangar (PW1), she was between 17 to 20 years and as per Dr.Jatinder Singh Walia (PW2), she was between 14 to 17 years. The prosecutrix gave her age as 16 years at the time of the occurrence. Even the Radiological report could carry variation of two years on either side. In such situation, the evidence of Karam Chand (PW4), an official from the office of Civil Surgeon, Hoshiarpur, who brought the original Birth Register of village Hazipur, clinches the issue. On the basis of the Register, he disclosed that the date of birth of the prosecutrix was 21.8.1975. The occurrence in this case took place on 13.2.1996. Thus, safest conclusion, which could be drawn in this case about the age of the prosecutrix is that she was about 20 years of age at the time of the alleged occurrence. 13. Now, coming to the factum of rape lot of delay has been caused in recording the FIR and also medico legally examining the prosecutrix. The occurrence is alleged to have taken place at 11.00 a.m., about which the prosecutrix is said to have informed her grand-mother and Chanan Masih forthwith. If it was so, there was no reason to delay in reporting the matter to the police there and then. Police Station Hazipur was not far away, but at a distance of about 6 kilometers from village Rakri Datarpur i.e, the place of alleged occurrence. The only excuse which has been made to lodge the FIR with a delay, is that the prosecutrix kept waiting for his father Darshan Singh, but the said excuse has turned to be false. Darshan Singh, for whom she was waiting, has not been examined to corroborate this fact, rather the prosecutrix admits that her father did not accompany her to the Police Station. If it was so, then there was certainly no need to wait for her father. Moreover, when the prosecutrix had the support of her grand-mother and Chanan Masih, then there was no necessity to wait further. Thus, this unexplained delay in the FIR goes to the root of the case and creates a doubt about the truthfulness of the prosecution version, particularly in view of the fact that brothers of the prosecutrix were inimical towards the accused as Ram Kishan (brother of accused) had appeared as witness against them in a cow slaughter case. 14. Thus, this unexplained delay in the FIR goes to the root of the case and creates a doubt about the truthfulness of the prosecution version, particularly in view of the fact that brothers of the prosecutrix were inimical towards the accused as Ram Kishan (brother of accused) had appeared as witness against them in a cow slaughter case. 14. Further more, the prosecutrix being about 20 years of age is signified to be a lady of loose virtues by medical evidence. Dr. Anupinder Kaur (PW6) has categorically deposed that there was no evidence of resistance, no marks of violence on any part of her body. There was no sign of fresh injury on the vulva, vagina, perennial and hymen. She further observed that the vagina admitted two fingers without any difficulty. This witness has not categorically stated that it was actually a case of rape, but she only stated that possibility of rape could not be ruled out. However, she has categorically stated that she was habitual to sexual intercourse. Further more, two days’ delay in medico legal examination of the prosecutrix also creates a doubt about the happening of the event. The excuse put forth by the prosecution that on 13.2.1996 she was taken to the hospital at Mukerian, but the medical examination could not be conducted on that day; the next day i.e. 14.2.1996, she was taken to hospital at Hazipur, but the doctor was not available, stood contradicted by the lady doctor (Dr. Anupinder Kaur - PW6), who categorically stated that she was on duty on 13.2.1996 and her duty was over at 3.00 p.m. However, she has stated that she was on leave on 14.2.1996. The record does not reveal that the Investigating Officer took the prosecutrix for medico legal examination on 13.2.1996. In the light of categorical statement of the doctor that the prosecutrix was habitual to sexual intercourse, the Trial Court appears to have fallen in error in holding it to be a case of rape, rather, there were all chances of instrumenting her for registration of a case against the accused to settle the old scores. 15. The case is shrouded by many mysterious and unanswered questions. The case of the prosecution is that the accused committed rape in the room, window of which was lying open towards the street. 15. The case is shrouded by many mysterious and unanswered questions. The case of the prosecution is that the accused committed rape in the room, window of which was lying open towards the street. The prosecutrix while deposing so has further stated that the house of Kamlesh is close to the water tap. All the residents of the vicinity approach the said tap usually. Strangely enough; firstly, as to why the accused will keep the aforesaid window open, if he is committing rape in the room, rather, he would have gone to the other room, in order to avoid the visibility from outside, specially when both the rooms were inter-connected. Secondly, it also does not appeal to anyone’s mind as to why Kamlesh, while going outside, will leave the door of his house unlocked, so as to allow everyone to tress-pass into it. Thirdly, assuming if the house was left open, even then, why the accused shall bear the risk of taking the prosecutrix to the house of Kamlesh, who could return to her house anytime. The aforesaid set of circumstances do not allow conscience of a man of ordinary prudence to accept the version of the prosecution. Nobody would invite trouble for himself by committing such heinous act at a place, which is visible to all, rather one would look for a secluded place or would prefer his own house for the purpose. 16. While examining the case from another angle, the fact of taking of the prosecutrix by the accused in Kamlesh’s house, give rise to an inference that the accused had been enjoying that house with the prosecutrix on earlier occasions as well with the consent of Kamlesh. It has also come in evidence that when Kamlesh returned to her house, she saw some ladies outside her house, who were whispering about the accused and the prosecutrix. It implies that the accused and the prosecutrix had. been enjoying sex earlier with the consent of Kamlesh, but on the day of occurrence, the matter became the talk of the town and, therefore, said, Kamlesh had to make a grievance in order to clear her own links. 17. The conduct of Kamlesh is also not above board. She has not supported the prosecution version, rather, while appearing as PW11, she stated that no occurrence took place in her house, as alleged by the prosecution. 17. The conduct of Kamlesh is also not above board. She has not supported the prosecution version, rather, while appearing as PW11, she stated that no occurrence took place in her house, as alleged by the prosecution. The testimony of Chanan Masih (PW8) is also not worth reliance. According to the prosecutrix, when she went to her house, she disclosed about the occurrence to her grand-mother Bunti and Chanan Masih, who was sitting along with her, but during cross-examination, Chanan Masih has stated that the prosecutrix and her grand-mother had come to him at the house of Dharam Pal and disclosed about the occurrence there. Even otherwise, this witness hails from a different village i.e. Mehmoodpur Batala. Nothing has come on the record in order to establish the occasion of his visiting village Rakri i.e, place of occurrence and to be present in the house of the prosecutrix. Thus, he is a chance witness and cannot be believed. 18. There is no evidence on the record to show that the prosecutrix was taken by force or at knife point. She has simply stated that she was taken by the accused forcibly. Had it been correct, then the prosecutrix must have raised hue and cry to invite the neighbours to come at her rescue especially when four of her relations have their houses in the vicinity. Nothing has been stated by the prosecutrix, if she resisted to the act of the accused. No neighbour except Kamlesh has been examined to say that if such occurrence had actually taken place in the house of Kamlesh. As a matter of fact, when the owner of the house, who allegedly saw the occurrence being committed in her house, did not support the prosecution case, the prosecution story fails from its base and is difficult to be believed. For the foregoing reasons, the appeal is accepted and the impugned judgment is set aside. The accused is acquitted of the charges framed against him and he is set at liberty. Bail bonds and surety bonds are discharged. ------------------------