Judgment ( 1. ) ASSAIL is to the judgment dated 22. 9. 2005 passed by additional Sessions Judge (Fast Track Court), Amarpatan District satna in S. T. No. 331/04, whereby the appellant Shailendra singh has been convicted punishable under Section 376 of IPC and sentenced to undergo seven years Rigorous Imprisonment and fined Rs. 1,000/- in default three months Simple imprisonment. ( 2. ) CASE of the prosecution in short is that on 8. 2. 2004 in intervening night at about 12:00 Oclock the prosecutrix was in her teen shaded house, the appellant knocked the door of the house of the prosecutrix, she opened the door. By pushing the door, the appellant entered in the house of the prosecutrix and committed rape with her. Thereafter, he fled away from the spot. Written FIR (Ex. P/1) was lodged on 15. 2. 2004 by the prosecutrix (PW-1) in Police Station, Ramnagar and case was registered as per Ex. P/2. Prosecutrix was medically examined by Dr. Sudha Jain (PW-9 ). One peace of cloth, one underwear and one salwar were seized as per seizure memo (Ex. P/4) from the prosecutrix. Spot map (Ex. P/5) was prepared. Statement of witnesses were recorded under Section 161 Cr. P. C. The appellant shailendra Singh was apprehended. He was medically examined by Dr. R. P. Garg (PW-2 ). Slide from the vaginal smear of the prosecutrix and semen slide of the appellant were prepared by respective doctors. Sealed articles were sent to FSL, Sagar for chemical analysis. On piece of cloth and semen slide of the appellant, semen and spermatozoa were found. After completion of investigation, the appellant was charge sheeted. Case was committed to the court of Sessions for trial. ( 3. ) LEARNED trial Court framed charge under section 376 of IPC against the appellant. The appellant abjured the guilt and pleaded innocence. Defence of the appellant is that on previous occasion also the prosecutrix lodged false report against him. He faced trial and ultimately acquitted of charge of rape. Due to political rivalry, he has been falsely implicated. ( 4. ) PROSECUTION examined 14 witnesses. No witness has been examined in defence. After hearing learned counsel for both the parties, perusing evidence and material on record, learned trial Court convicted the appellant and sentenced him as hereinabove mentioned. Being aggrieved by the impugned judgment the appellant has preferred the appeal. ( 5. ( 4. ) PROSECUTION examined 14 witnesses. No witness has been examined in defence. After hearing learned counsel for both the parties, perusing evidence and material on record, learned trial Court convicted the appellant and sentenced him as hereinabove mentioned. Being aggrieved by the impugned judgment the appellant has preferred the appeal. ( 5. ) I have heard learned counsel for both the parties, perused impugned judgment, evidence and material on record. ( 6. ) SHRI S. C. Datt, learned senior counsel vehemently argued that looking to the background of the prosecutrix (PW-1) and previous litigation between the appellant Shailendra Singh and the prosecutrix, her testimony cannot be relied upon without corroboration. On previous occasion also the prosecutrix lodged false report of commission of rape by the appellant against him but he was acquitted. She also filed a civil case against the appellant, showing her to be wife of the appellant, the prosecutrix is of lax character. FIR is delayed and delay is not explained. Learned trial Court did not appreciate prosecution evidence in right perspective and committed error in relying upon the testimony of prosecutrix and convicting and sentencing the appellant. Contrary to that, ku. Vijay Bhatnagar, learned P. L. for the respondent/state supported the impugned judgment and urged that learned trial Court did not commit any error in convicting and sentencing the appellant. ( 7. ) ON going through the evidence of prosecutrix (PW-1) and her admission that she lodged FIR against the appellant on previous occasion also in respect of commission of rape with her and judgment dated 30. 9. 03 passed in sessions trial no. 45/03, it is revealed that on the fir of the prosecutrix, the appellant Shailendra Singh faced trial under Section 376 of IPC ultimately, he has been acquitted of charge levelled against him. On going through the copy of plaint (Ex. C/1), on which the prosecutrix admitted her signatures coupled with affidavit, it is clear that she pleaded in civil suit no. 39-A/04. Since year 2000 she and the appellant Shailendra Singh were living as husband and wife and they were ready to die on each other, an agreement dated 8. 8. 2002 was also executed in this respect, thereafter they started living as husband and wife together. Later on the appellant shailendra Singh was going to contract second marriage, hence she filed civil suit for executing agreement. 8. 2002 was also executed in this respect, thereafter they started living as husband and wife together. Later on the appellant shailendra Singh was going to contract second marriage, hence she filed civil suit for executing agreement. Her application under Order 39 Rule 1 and 2 CPC was dismissed as per order dated 22. 4. 2004 Ex. D/4. Prima facie Court disbelieved the case of the prosecutrix. As per evidence of prosecutrix (PW-1) and aforementioned documents, it is clear that prosecutrix alleged that he and she were living together and thereafter, they executed an agreement about living as husband and wife, but which was not materialized finally. It is also clear that the prosecutrix lodged FIR against the appellant and he faced trial and ultimately he has been acquitted of charge under Section 376 IPC. Keeping these scenario in mind, evidence of prosecutrix should be scrutinized closely, cautiously and carefully. ( 8. ) THE prosecutrix (PW-1) deposed that on the fateful night she was in her house. At midnight some one knocked the door and she opened the door. She found that the appellant Shailendra Singh was standing there. She further deposed that Shailendra Singh forcibly entered in her house and committed rape with her. She also deposed that the appellant gagged her mouth by his hand and dupatta. She further deposed that later on she shouted and Natthu Koal reached at the spot and caught hold the appellant. She also deposed that Sukhlal was also present there, by pushing Natthu Koal, the appellant ran away from the spot. She lodged written FIR (Ex. P/1) in Police station, Ramnagar. ( 9. ) DR. R. P. Garg (PW-2) examined the appellant and found him fit to perform sexual intercourse. He prepared one semen slide of the appellant and sealed it. Evidence of Dr. R. P. Garg (PW-2) is wholly reliable and it is proved beyond reasonable doubt that the appellant is competent to perform sexual intercourse. Dr. R. P. Garg (PW-2) did not find any injury on the person of private part of the appellant. ( 10. ) BHAGWAT Koal (PW-3) turned hostile. He is not supporting the prosecution case. In presence of Umesh, the appellant was arrested as per Ex. P/8. Constable ramsiya Patel (PW-5) took sealed packet to FSL, Sagar. Dr. R. P. Garg (PW-2) did not find any injury on the person of private part of the appellant. ( 10. ) BHAGWAT Koal (PW-3) turned hostile. He is not supporting the prosecution case. In presence of Umesh, the appellant was arrested as per Ex. P/8. Constable ramsiya Patel (PW-5) took sealed packet to FSL, Sagar. Arun Kumar Gautam (PW-6) took sealed packet of slide of the prosecutrix to Police Station as per seizure memo ex. P/10, it was seized. In presence of Shobha Singh (PW-7), Santosh (PW-8) produced semen slide of the appellant in the Police Station. B. D. Shukla (PW-10) Investigating officer and Sarman Lal (PW-11) also witness of seizure of semen slide of the appellant. Santosh Kumar (PW-12)turned hostile. B. L. Tiwari (PW-13) recorded statement of bhagwat Koal under Section 161 Cr. P. C. Arun Pratap singh Parihar (PW-14) sent seized articles to FSL, Sagar. Vidhyadhar Pandey (PW-15) witness of arrest of the appellant and seizure of sealed slide. Evidence of these witnesses is formal nature. ( 11. ) DR. Sudha Jain (PW-9) on 15. 2. 2004 examined the prosecutrix (PW-1) and found 5-10 days old one abrasion 4 x 6 on the left side of chest of the prosecutrix. She could not give any definite opinion in respect of recent sexual intercourse with the appellant. ( 12. ) THE case hinges on the evidence only of the prosecutrix (PW-1) and written FIR (Ex. P/1) dated 15. 2. 2004 which is lodged after seven days of the incident, it is mentioned in FIR that the appellant Shailendra Singh took the prosecutrix to Amarpatan Court for marriage, hence she could not lodge FIR in time. The prosecutrix specifically admitted that explanation of delay FIR mentioned in Ex. P/1 at the insistence of the Police. B. D. Shukla (PW-10) also categorically stated that he told the prosecutrix to explain the delayed FIR. It is mentioned in fir Ex. P/1 that the appellant took her to Amarpatan Court for marriage. On going through the FIR (Ex. P/1) and looking to the gapping between line and the words, it is clear that the explanation of delayed FIR is interpolated in ex. P/1 and it was inserted, later on. It is clear from the evidence of prosecutrix (PW-1) and B. D. Shukla (PW-10)that explanation was brought on record at the insistence of b. D. Shukla. P/1) and looking to the gapping between line and the words, it is clear that the explanation of delayed FIR is interpolated in ex. P/1 and it was inserted, later on. It is clear from the evidence of prosecutrix (PW-1) and B. D. Shukla (PW-10)that explanation was brought on record at the insistence of b. D. Shukla. The evidence of prosecutrix that she went to lodge FIR to Police Station but police refused to record fir, is not reliable because she has not made any complaint to higher officer and this part of her statement is not corroborated by any other evidence. Hence, I am of the considered opinion that the prosecution has miserably failed to prove explanation of delayed FIR. In Ramdas and others Vs. State of Maharashtra, AIR 2007 SC 155, it has been held that though delay is lodging FIR by itself not necessarily fatal to the prosecution but the fact that report was lodged belatedly is a relevant fact of which court must take notice. ( 13. ) IN Rajkumar and another Vs. State of M. P. , 2000 Cri. L. J. 1896, it has been held by Single Bench of this Court in para 7 thus:- "7. Conviction in a rape case depends to a large extent upon the credibility of the prosecutrix. There must be some reassuring guarantee that her version is truthful and fully reliable. Her testimony may be sterling variety and unimpeachable character and in such a case there is no need of corroboration of her testimony and it is in this category of cases that the Supreme Court has held in a catena of cases that corroboration is not a sine qua non for a conviction in a rape case. Bharwada Bhoginbhai Harjibhai v. State of Gujarat, AIR 1983 SC 753 : (1983 Cri LJ 1096), State of maharashtra v. C. K. Jain, AIR 1990 sc 658 : (1990 Cri LJ 889), State of punjab v. Gurmit Singh, AIR 1996 sc 1393 : (1996 Cri LJ 1728), State of A. P. v. G. S. Murthy, AIR 1997 sc 1588 : (1997 Cri LJ 774) and ranjit Hazarika v. State of Assam, (1998) 8 SCC 635 . But in case of a grown up prosecutrix whose testimony suffers from basic infirmities and is not fully reliable it cannot form the sole basis for conviction. But in case of a grown up prosecutrix whose testimony suffers from basic infirmities and is not fully reliable it cannot form the sole basis for conviction. The "probabilities factor" should not render her testimony as unworthy of credence. Her evidence must inspire confidence and it should be fully reliable to dispense with the necessity of corroboration. Seeking corroboration should not be insisted upon as a rule but there are cases and cases and there can be no straight-jacket formula for every case. It is necessary for the court to evaluate, scrutinise and weigh the evidence of the prosecutrix in right perspective. The beacon light is furnished by the caveat in Gurmit Singhs case : "inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty". The Court must deal rape cases with utmost sensitivity taking every precaution that an innocent person is not punished in a zeal to deal with such cases with a stern hand. The evidence must be appreciated "in the totality of the background of the entire case and not in isolation". (G. S. Murthys case ). There can be no conviction if the circumstances as a whole indicate that no reliance can be placed upon the testimony of the prosecutrix. (S. N. Bhusare v. State of Maharashtra, AIR 1998 SC 3131 : (1998 Cri LJ 4559 ). " ( 14. ) IN Radhu Vs. State of Madhya Pradesh, 2008 Vol. II SCC (Cri) 207, it has been held by the Apex court thus:- "a Penal Code, 1860 Ss. 376 and 375- A finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix and her testimony should not be rejected on basis of minor discrepancies and contradictions. Further held, absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor can be construed as evidence of consent, nor the opinion of a doctor that there was no evidence of any sexual intercourse or rape sufficient to disbelieve the victim. Further held, absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor can be construed as evidence of consent, nor the opinion of a doctor that there was no evidence of any sexual intercourse or rape sufficient to disbelieve the victim. However, courts should, at the same time, bear in mind that false charges of rape are not uncommon, and there are some rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case. " ( 15. ) THE prosecutrix deposed that Natthu Koal and sukhlal Koal reached on the spot and Natthu Koal tried to catch hold the appellant Shailendra Singh but he fled away from the spot. She also deposed that Kusum Vishwakarma also saw the appellant running from the spot but none of them has been examined by prosecution reason best known to the prosecution. Natthu Koal, Sukhlal and Kusum vishwakarma are important witnesses and they have been left over by the prosecution without any explanation. This fact is very fatal to the prosecution. The prosecutrix deposed that she bit the hand of the appellant but doctor r. P. Garg (PW-2) did not find any injury on the person of the appellant, which also negated this part of evidence of prosecutrix. She sustained abrasion on her body but only this fact does not corroborate testimony of prosecutrix (PW-1 ). ( 16. ) EVIDENCE of prosecutrix does not inspire confidence because on previous occasion also she lodged false report of commission of rape with her against the appellant, she filed civil suit to execute alleged agreement dated 8. 8. 2002 to live together with the appellant as husband and wife and her application has been dismissed, delay in lodging FIR has not been explained, independent witnesses Natthu Koal, Sukhlal and Kusum Vishwakarma have not been examined, Bhagwat Koal did not corroborate the testimony of the prosecutrix. Her testimony is not corroborated by medical evidence and she was inclined to live and marry with the appellant. Learned trial Court over sighted all these circumstances and did not appreciate the evidence of prosecutrix in right perspective. Her testimony is not corroborated by medical evidence and she was inclined to live and marry with the appellant. Learned trial Court over sighted all these circumstances and did not appreciate the evidence of prosecutrix in right perspective. I am of the view that evidence of prosecutrix is not reliable and learned trial Court committed error in relying upon the testimony of prosecutrix and convicting and sentencing the appellant Shailendra Singh under section 376 of IPC. ( 17. ) CONSEQUENTLY, appeal has merit, and deserves to be allowed. The appeal is allowed. The impugned judgment of conviction and order of sentence passed by learned trial Court is hereby set aside. The appellant shailendra Singh is acquitted of charge under Section 376 of IPC. If, fine amount is deposited by the appellant shailendra Singh, it be returned back to him and if, he is not required in any other criminal case, he be set free forthwith.