JUDGMENT (1) THIS appeal is directed against the judgment of conviction dated 27"1 August, 2002 and order of sentence dated 29th August 2002 passed by Sri Anant Kumar Singh, Additional Sessions Judge (F.T.C.-I), Hazaribagh in Sessions Trial Case No. 108 of 1988, by which judgment he found the appellant guilty under Sections 376 and 450 of the Indian Penal Code and sentenced him to undergo R. I. for 7 years under Section 376 of the Indian Penal Code and R.I. for 5 years under Section 450 of the Indian Penal Code. He directed both the sentences shall run concurrently. (2) IT is submitted by the learned counsel for the appellant that it will appear from the F.I.R. that the date of occurrence is 14-8-85, but the matter was reported to the police on 31-8-85. Moreover even when the matter was reported to the police on 31-8-85 the same was sent to Court on 1-9-85 and it was received in Court on 2-9-85 and as such there is a delay in sending the F.I.R for which there is no explanation. Moreover, again there is delay in sending the report to the Chief Judicial Magistrate when the Court is only at a distance of 1 kilometer from the police station. Learned counsel for the appellant has relied on a judgment of this Court reported in Cri. Appeal No. 154 of 2000 wherein it has been held on the basis of a Division Bench Judgment, the delay of 2 days in sending the F.I.R. which provides a legitimate basis for suspecting that the F.I.R. was recorded much later than the stated date and as such the entire prosecution is doubtful and not fit for acceptance. Learned counsel for the appellant has further submitted that the informant, Sushmita Munshi lives with her mother and sister in a rented house where landlord and other tenants also resides, but none of the neighbouring witnesses have supported the prosecution case. They were examined as defence witnesses and they have stated that no such occurrence took place. In that view of the matter, the prosecution case is doubtful and the judgment of conviction and sentence is fit to be set aside. They were examined as defence witnesses and they have stated that no such occurrence took place. In that view of the matter, the prosecution case is doubtful and the judgment of conviction and sentence is fit to be set aside. On the other hand, learned counsel for the State has opposed the prayer and submitted that it will appear from the evidence of the prosecutrix as also her mother and her sister that the appellant has committed rape upon the prosecutrix and as such the entire prosecution story is well founded and the finding of conviction and sentence requires no interference by this Court. (3) AFTER hearing both the parties and going through the record, I find that the prosecution case was started on the basis of a Fardbeyan given by the victim, Sushmita Munshi on 31-8-85 at about 4 p.m. at her house that when the Daroga came she stated that in the night of 14-8-85 she was sleeping in her house along with her mother and sister after closing door from inside then the resident of Okni Mohalla, Sudhir Kumar Sinha (appellant), who is presently Ward Commissioner came to her house and started knocking the door from outside. Whereupon, her mother and sister woke up and asked that who is at the door then he said that he is Sudhir Kumar Sinha (appellant), in spite of that her mother did not open the door then he had threatened them that if they would not open the door, he will break the door. Then, her mother opened the door then Sudhir Kumar Sinha came inside, he was heavily drunk and he asked about a boy, who resides there, then her mother said that boy is not present in the house, then he said since he has taken excess liquor on that day and he will sleep in her house and saying so he slept on the Chauki (cot). Thereafter, he asked her mother and sister to go out of the room, whereupon her mother and sister said nothing and went outside the room towards Varanda and stayed in the Varanda. Thereafter, the accused-appellant caught hold of her and asked her by force to sleep in the Chauki (cot) and when she protested that you are my uncle, as to why you are doing so, but he did not listen and by removing her clothes he committed rape upon her. Thereafter, the accused-appellant caught hold of her and asked her by force to sleep in the Chauki (cot) and when she protested that you are my uncle, as to why you are doing so, but he did not listen and by removing her clothes he committed rape upon her. Thereafter, he stayed for the whole night there and in the morning at about 4 a.m. when he left he had threatened that if they disclose the matter, they will be killed. She had some pain in her stomach due to this occurrence. Her brother had opened a scooter shop and she went to the shop of her brother and told him about the occurrence. Subsequently, her mother brought some medicine for her stomach pain. The accused had threatened them not to disclose the said fact to anyone, hence they did not go to the police station, but subsequently informed the Divisional Commissioner. (4) ON the basis of the said Fardbeyan police registered a case under Sections 376/452 of the Indian Penal Code and after investigation charge-sheet was submitted. Since, the case was exclusively triable by a Court of Session the case was subsequently transferred by Chief Judicial Magistrate to the Court of Session and after taking cognizance of the same subsequently charges were framed under Section 376 of the Indian Penal Code as also under Section 450 of the Indian Penal Code and trial was held and finally the appellant was found guilty and convicted as aforesaid by the Additional Sessions Judge. (5) IN course of trial the prosecution has examined as many as 12 witnesses and the defence has also examined 4 defence witnesses. (6) P.W.I, Kalpana Munshi is the mother of the victim, she has stated that the occurrence took place on 28th October at 11.00 p.m. in the night when she was sleeping with her daughters and at the alleged time somebody started knocking the door from outside, but she did not open the door, but the accused started breaking the door then she opened the door and seen the accused, Sudhir Kumar Sinha. He entered into the room and asked her younger daughter and her to go out then, her elder daughter, Sushmita Munshi remained in the house then the accused closed the door from inside. He entered into the room and asked her younger daughter and her to go out then, her elder daughter, Sushmita Munshi remained in the house then the accused closed the door from inside. He was sleeping with her daughter inside the room at about 4 a.m. and he left room at about 4 a.m. threatening them that if they disclosed the matter to anybody then they will be killed. Subsequently she told her mother that the accused Sudhir Kumar Sinha had committed rape upon her in the morning. While she was going to report the matter to the Divisional Commissioner in the way accused restrained her, as such out of fear she had not gone there. After 5 to 6 days she went to the Divisional Commissioner and gave him written letter, which was written by her younger daughter then the police came to the house and recorded the statement of her daughter, Sushmita Munshi. In her cross-examination, she stated that the people lived by her side and she used to talk after the occurrence and she has got no fight with them. She also admitted that the man, who entered into her room by force and laid on the bed and asked her and her younger daughter to go out. She saw that the man lying on the bed, when she and her younger daughter went outside the room then the accused closed the door. She and her daughter stayed outside the room till 4 a.m. on the Varandah. They stayed for 3 to 4 hrs on the said Varandah, but she or her daughter did not inform anybody out of fear. She further admitted that at about 4 a.m. when the accused came outside the room again he had threatened them to commit their murder, if they will disclose the matter. She further admitted, in her cross-examination, that the son has got a shop at a distance of 10-15 degs, which was opened at that time and customers were also present there. She further stated that after 3 to 4 days of the occurrence she went to the house of the Commissioner, but she had not stated anything. The Commissioner was informed by Ram Kumar, then the police came. She further stated that after 3 to 4 days of the occurrence she went to the house of the Commissioner, but she had not stated anything. The Commissioner was informed by Ram Kumar, then the police came. She further stated in her cross-examination, that the Commissioner's office is far away from her house about 1 mile then she had given witten report to the Commissioner, which was written by her younger daughter. P.W.2, is the victim, Sushmita Munshi. She has stated that earlier they used to live in Okni Mohalla along with her two brothers and one sister and mother. On 14-8-85 at about 11 p.m. in the night when she was sleeping in the house along with her mother and younger sister since her brothers were sleeping at a Gumti. which they had opened. She has also stated that somebody started knocking the door from outside. On inquiry, he disclosed his name as Sudhir Kumar Sinha (appellant). When she had not opened the door thereafter the accused had threatened her that if she will not open the door then he will break the door and commit their murder, then her mother opened the door. Then, the accused, Sudhir Kumar Sinha entered into the room and asked her mother and younger sister to go out of the room and they went to the Varanda and asked her to open her salwar and samiz, she opened the same, thereafter the accused had committed rape upon her. He stayed with her for about 3 hrs. and left her at about 4 a.m. he went away after threatening her that if she will disclose the fact to anybody he will commit their murder. She was having pain in her stomach. After four days from the back door she went to the house of the Commissioner and gave him a written complaint then the police was sent to her house where she gave her Fardbeyan. She proved her signature on the Fardbeyan as Ext.-1. She identified the accused in Court. In her cross-examination, she stated that the place of occurrence is the house of Gopi Krishna Prasad where they lived on rent of Rs. 20/- in Okni Mohalla and other tenants also lived there. She also admitted that she had gone to the house of Commissioner along with a written complaint, which was written by her younger sister. In her cross-examination, she stated that the place of occurrence is the house of Gopi Krishna Prasad where they lived on rent of Rs. 20/- in Okni Mohalla and other tenants also lived there. She also admitted that she had gone to the house of Commissioner along with a written complaint, which was written by her younger sister. She further stated that the police came after one week to her house and she had given the blood-stained cloth to the police. She had also shown the bed which had blood stains. (7) P.W.3, Manoj Kumar Munshi, stated that on 14-8-85 when he went to the house in the morning along with his younger brother from the Gumti where he found that they were weeping and they had said him that accused had forcibly committed rape upon his sister. In his cross-examination, he stated that he had taken a Gumti on rent of Rs. 90/- per month. He also admitted that his Gumti is at a distance of 200 meters from his house where his mother and sisters were sleeping. He admitted in para 4, in his cross-examination, that after the occurrence he used to move alone in the town freely and since he was not asked by him mother to inform the police, hence he did not inform the police as the police station is at a distance of 200 meters from his Gumti. (8) P.W.4, Sanjeev Kumar Munshi, who has been tendered for his cross-examination and nothing has been asked from him. P.W.5, Sumita Munshi, has stated that on 14-8-85 at about 11 to 11.30 p.m. in the night when she was sleeping with her elder sister and her mother in the house then somebody started knocking the door from outside and when finally her mother opened the door the accused, Sudhir Kumar Sinha entered into the room and asked her and her mother to go out on this they went out towards Varanda and her elder sister stays inside the room then Sudhir Kumar Sinha closed the door from inside and at about 4 a.m. in the morning the accused came out and had threatened them not to inform about the occurrence and his sister came out and she said that she was raped by the accused. She never examined by the police. She never examined by the police. In her cross-examination, she stated that at the time of occurrence there were two other family members living in that house as tenants. The name of their daughter was Guria. She does not know the name of her father. The name of the landlord is Gopi who lived in the same house along with his all families. She further stated that there was a function in his house on that day. She also admitted that Sudhir Kumar Sinha had got elected as Ward Commissioner by defeating Vimal Srivastava, who was the Ex-Ward Commissioner. She further admitted that on being asked to go they went outside the room and stayed in the Varanda. She further stated that the accused closed the door from inside. She did not go to the house of Gopi Babu to inform him about the occurrence and stayed in the Varanda itself. (9) P.W.6, Dr. Ranjan Saran, examined the victim girl on 31-8-85 and found no external injury on her body; no injury was seen on her private part. Hymen was not intact. Her vagina swab was taken and sent for microscopic examination and no spermatozoa was seen in the same and as such she stated that no opinion of rape can be given. The victim girl was aged less than 17 years on the date of examination. She had proved her medical report as Ext.-2. (10) P.W.7, Jagdish Tiwari, who has formally proved the charge-sheet as the main I.O. was transferred. P.W.8, Dr. S. S.Sahay, has tendered for his cross-examination. (11) P.W.9, Prakash Chandra Chaudhary, Judicial Magistrate, proved the 164 Cr.P.C. statement of the victim girl as Ext.3. (12) P.W.10, Barhan Baitha, is the I.O. He has stated that on 31-8-85 he was posted at Sadar Police Station, Hazaribagh as S.I., was received information from S.P., Hazaribagh on telephone for sending some officers then he went on the direction of the Officer-in- charge after entering the same in S.D. Case No. 1264, dated 31-8-85 when he reached the office of S.P. then Dy. S.P. had asked him to go to Okni Mohalla where girl has been raped by Sudhir Kumar Sinha. Thereafter, he reached Okni Mohalla and came to the house of Sushmita Munshi and recorded her statement in presence of her mother. He proved the same as Ext.-5. S.P. had asked him to go to Okni Mohalla where girl has been raped by Sudhir Kumar Sinha. Thereafter, he reached Okni Mohalla and came to the house of Sushmita Munshi and recorded her statement in presence of her mother. He proved the same as Ext.-5. He further stated that the place of occurrence is the house of Gopi Krishna Prasad and there were two rooms and in one of the rooms the victim lived with her mother and sister. He also stated in para 9 that the accused was the Ward Commissioner and he inquired about the occurrence from the neighbouring witnesses, but nobody confirmed the occurrence. He inquired about the occurrence from Dhakan Bhuiyan and his wife Kanti Devi, Ganesh Ram and Jagdish Bhuiyan, but they did not confirm the occurrence. He also admitted in para 10 that there was nothing to confirm the occurrence at the place of occurrence. He also stated that the place of occurrence is on the west of Indrapuri Cinema Hall and police station is at 2 kilometers from the cinema hall and Raja Bunglow is at a distance of 11/2 km. from south of Indrapuri Cinema Hall, but he made no inquiry from the residents of Raja Bunglow. P.W.11, Jogeswar Tiwari, proved Sanha. (13) P.W.12, Raj Kishor Singh, proved the Sanha as Ext.-6 (14) ON the other hand, the defence witnesses, namely, D.W.I Manorajan Nandi, D.W.2, Aslam Ansari, D.W.3, Archana Ekat and D.W.4, Gopi Krishna Prasad. They are different neighbours of the victim girl. D.W.I, Manoranjan Nandi, who has stated that he lives as a tenant in the house of Gopi Krishna Prasad, the informant, Sushmita along with her mother and sister also lived in the said house in 1985. He had two rooms and they had one room. He further stated that Sanjeev also used to live there. He stated in para 4 that since he is a tutor he used to give private coaching to Sanjeev since her mother was a widow and none of the family members were working and day-to-day expense used to be borne by the previous Ward Commissioner, Vimal Srivastava, who used to visit their house. He stated in para 4 that since he is a tutor he used to give private coaching to Sanjeev since her mother was a widow and none of the family members were working and day-to-day expense used to be borne by the previous Ward Commissioner, Vimal Srivastava, who used to visit their house. He further stated that he knows Sudhir Kumar Sinha, who was elected as Ward Commissioner in 1993 election and in that election Sudhir Kumar Sinha had defeated Vimal Kumar Srivastava, in which Kalpana Munshi and Sushmita Munshi were working in favour of Vimal Srivastava and after Vimal Srivastava losing the election he lodged the case to falsely implicate Sudhir Kumar Sinha. He further stated that in the night of occurrence 14/15 August, 1995 there was a Kirtan in the house of Gopi Babu in which he along with other family members were present there and also had taken food. The Kirtan ended at 6.30 p.m. He further stated that no occurrence took place as alleged by Sushmita. (15) D.W. 2, is Aslam Ansari, he also stated that in 1993 election, Sudhir Kumar Sinha was elected as Ward Commissioner and his main rival was Vimal Srivastava, who was the previous Ward Commissioner and Vimal Srivastava used to say to the residents of mohalla to implicate him in false case, he will debar from the old age pension. (16) D.W.3 is Archana Ekat, also stated that in 1985 Sudhir Kumar Sinha was Ward Commissioner and his house is a resident of Raja Bungla at Okni Mohalla. Before 1983 Vimal Srivastava, who was Ward Commissioner and Vice-Chairman of the Municipality, but he was defeated by Sudhir Kumar Sinha and as such she falsely implicated Sudhir Kumar Sinha D.W.4, Gopi Krishna Prasad, stated that in August, 1985 he had gone to Baidyanathdham and after returned on 14th August he had organized a Kirtan Puja in his house and food was served at 11 p.m. in the night in which his tenant, Kalpana Munshi and her two daughters, Sushmita Munshi and Sumita Munshi were present in the Kirtan for the whole night and Sushmita never complain of any rape committed upon her. (17) THUS, after going through the prosecution evidences, it appears that although the occurrence took place, according to the victim girl, at about 11 p.m. in the night of 14-8-85, but no information about the occurrence of rape was given by Sushmita or her mother or her sister to the police, rather according to them after four days i.e. on 18/19th August, 1985 a written complaint was given to the Divisional Commissioner, Hazaribagh, but the said written complaint given by the prosecution witness Nos. 1 and 2, has not been produced in Court nor proved; the F.I.R., which was given by P.W.2 after 10 to 15 days on 31-8-85 when the police came to her house at 4 p.m. in the evening was only proved in trial. As per the evidence of her brother- P.W.3, Manoj Kumar Munshi, he has stated that he was sleeping in the night at his Gumti, which is at a distance of 200 meters from his house and when he came to the house on 14- 8-85 in the morning then he was informed that his sister Sushmita has been raped, but, according to him he made no information to the police. In his cross-examination at para 4, he admits that he used to move alone in the town freely while the police station is only 200 steps from his Gumti, but since he was not asked to make any complaint to the police, he did not make any information. (18) THUS, from the entire prosecution witnesses Nos. 1, 2 and 3, it appears that the information to the police was not given by P.Ws. 1 and 2 knowingly, it is strange that when the victim girl's mother and her younger sister were asked to go out of room, they willingly went out of the room and thereafter they stayed in the Varanda for about 4 hrs. They did not inform to anybody. P.W.5, Susmita Munshi, who has admitted that there were two other families living in the same house and she was knowing the name of the daughter of the neighbouring family as Guria, but no information was given to them as per the P.W.3, Manoj Kumar Munshi. They did not inform to anybody. P.W.5, Susmita Munshi, who has admitted that there were two other families living in the same house and she was knowing the name of the daughter of the neighbouring family as Guria, but no information was given to them as per the P.W.3, Manoj Kumar Munshi. Admittedly, the Gumti where two brothers of victim were sleeping, which is at a distance of 200 yards, but she or her younger sister did not go to the Gumti to call her brothers for help, as the accused was closed from inside with their elder sister Sushmita, but they kept mum for 10 to 15 days, they said after four days a written complaint was given to the office of Commissioner, but that letter is not produced in Court and how the police came to know about the occurrence, is also suspected. Since, I.O., who was examined in Court as P.W.10 stated that on 31-8-85, he received information on telephone and came in the Thana from the office of the S.P, Hazaribagh then he went to the office of S.P, Hazaribagh as per the direction of the Officer-in-charge after entering S.D. Case No. 1264, dated 31- 8-85 and there since S.P. was not present, the Dy. S.P. asked him to go to Okni Mohalla to the house of the victim. Then he went there, according to him, there was no proof of rape at the place of occurrence i.e. in the room of the victim girl. According to him, he inquired from the neighbours of the victim about the occurrence and nobody confirmed the occurrence. In that view of the matter, in my opinion, the delay of 17 days in making the information to the police, casts a serious doubt in the prosecution case and it supports the defence story that the case was lodged as an afterthought on the pressure of the rival politician, Vimal Srivastava, who had lost the Ward Commissioner election at the hands of accused, Sudhir Kumar Sinha. Morever, even the delay in sending the j report of the F.I.R. to the Court also doubt since even after 18 days when F.I.R. was lodged on 31st August, 1995, the same was not sent to the Court on the same day, rather it was sent as per Column 3 of formal F.I.R. on 1-9-85, but the said F.I.R was seen by the Chief Judicial Magistrate on 2-9-85 i.e. 3rd day as per the judgment of Ishwar Singh v. State of Uttar Pradesh reported in 1976 Cri LJ 1883. It was also relied earlier by this Court reported in Cri. Appeal No. 154 of 2000. It has been proved that as per Section 157, Cr. P. C. cognizable offence recorded in any of the F.I.R. should be sent forthwith to the competent Magistrate for taking cognizance of the offence and extraordinary delay in sending the F.I.R. is a circumstance which provides a legitimate basis for suspecting that the F.I.R. was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. (19) IN the instant case, wherein F.I.R. itself has been lodged after 7 days it adds, when the said F.I.R. was sent to the Court of Chief Judicial Magistrate after 2 days. IN that view of the matter, the entire prosecution case has become doubtful and benefit of doubt is given to the accused-appellant and he is acquitted from the charges levelled against him. (20) IN the result, the appeal is allowed and the judgment of conviction dated 27th August, 2002 and order of sentence dated 29th August 2002 passed by Sri Anant Kumar Singh, Additional Sessions Judge (F.T.C.-I), Hazaribagh in Sessions Trial Case No. 108 of 1988, is hereby set aside. The appellant is on bail, he is discharged from the liability of his bail bond. Appeal allowed.