Sharma, J;— Heard Mr. S.C. Biswas, learned counsel for the appellant. Also heard Ms. B. Saikia, learned APP, Assam. I have also perused the entire materials on record. 2. This appeal is directed against the judgement dated 14.12.2007 passed by the learned Sessions Judge, Goalpara in Sessions Case No. 78/2006, convicting the accused-appellant under Section 376 IPC and sentencing him to undergo RI for 5 (five) years and to pay a fine of Rs. 1,000/- and in default, to undergo further RI for 6(six) months. 3. Before proceeding with the matter any further, it will be pertinent to mention here that pursuant to the order dated 25.1.2008 passed in Criminal MC No. 36/2008, the accused appellant is on bail. The ground for releasing the appellant on bail is that the parties are now living as husband and wife. During trial also, the victim had sworn an affidavit on 21.11.2007 stating therein that she had an affair with the accused-appellant and they are neighbours. She further stated in the affidavit that suddenly a bad relationship developed between them and the accused appellant having refused to marry her, she had lodged the FIR. In the affidavit, she further stated that the matter was amicably settled and that they had been living a married life and at the time of filing the affidavit, she was 5(five) months pregnant. 4. Baguan PS case No. 10/2004 was registered under Section 376 IPC on the basis of the FIR lodged by the victim. According to the said FIR, on 7.1.2004, when the victim was coming towards their house along with her mother, she was taken to the house of the accusedappellant by one Mabia Khatun. When she entered their house, the accused appellant forcefully took her inside and laying her down on the bed, committed rape on her. 5. On receipt of the said FIR, police carried out the investigation and on conclusion of the same, having submitted charge sheet, the trial court framed charge against the accused appellant under Section 376 IPC. In her statement made under Section 164 Cr.P.C., the victim narrated the same story as in the FIR. As per the said statement, Mabia Khatun was an Abettor to the offence committed by the accused appellant. However, she was not made an accused. 6. During trial, the prosecution examined 5(five) witnesses including the Medical Officer and the IO. In her statement made under Section 164 Cr.P.C., the victim narrated the same story as in the FIR. As per the said statement, Mabia Khatun was an Abettor to the offence committed by the accused appellant. However, she was not made an accused. 6. During trial, the prosecution examined 5(five) witnesses including the Medical Officer and the IO. PW-1 is the father of the victim who in his deposition during trial stated as to how on his return home from the market, his wife and the victim daughter informed him about the incident. In his cross examination, he admitted that he did not see the occurrence personally. PW-2 is the mother of the victim girl, who in her deposition, narrating the incident stated that while coming back from market, Mabia Khatun took her daughter to her house. After some time, when she heard hue and cry raised by her daughter, she came back to the house of Mabia and on enquiry, could come to know that the accusedappellant had tortured her daughter. In her deposition, she did not state that her daughter was raped by the accused-appellant. 7. PW-3 is the victim girl, who in her deposition stated as to how Mabia had taken her to her house and then closed the door. According to her statement, thereafter the accused-appellant committed rape on her. She in her deposition also stated about the proposed village Bichar. However, the same was not held as the villagers delayed the matter. In her cross examination, she admitted that she was not aware as to how the accused-appellant came to the house of Mabia. When she was asked as to whether anybody came to the house when the incident allegedly occurred upon raising hue and cry by her, she stated that none of the nearby people came to the place of occurrence, although, there are houses of other persons nearby to the house of Mabia. She denied the suggestion that the accused-appellant did not commit rape on her. 8. PW-4 is the doctor who had examined the victim girl, who in his deposition proved the opinion rendered by him upon medical examination of the victim. As per the said medical opinion, there was no recent sign of sexual intercourse. PW-5 is the IO, who had conducted the investigation. He in his deposition stated about the investigation carried out by him. 9. As per the said medical opinion, there was no recent sign of sexual intercourse. PW-5 is the IO, who had conducted the investigation. He in his deposition stated about the investigation carried out by him. 9. It is on the basis of the aforesaid evidence, the learned trial court has convicted the accused-appellant as mentioned above. The learned trial court has also taken into consideration the affidavit that was sworn by the victim, about which mention has been made above and in terms of which the accused appellant is now on bail. However, while considering the said affidavit, the learned trial court has made use of the same only in respect of the sentence that has been imposed on the accused appellant. It has been held by the trial Court that although the victim girl and the accused appellant are now married and leading a conjugal life which might be a mitigating factor in awarding the sentence, has convicted the accused-appellant on the basis of the aforesaid evidence. 10. On a critical analysis of the evidence recorded above, what is seen is that the accused appellant has been convicted primarily on the basis of the testimony of the victim girl with whom there was some sort of misunderstandings, although, as per the subsequent testimony of the victim girl, there was good relationship between them. However, when the accused-appellant refused to marry her, because of the misunderstanding that had developed, she had lodged the FIR to teach him a lesson. 11. Independent of the above, if we analyse the evidence on record, what I find is that the PW-2 i.e. the mother of the victim, who had accompanied her did not say in her evidence that her daughter was raped. The incident occurred almost in her presence, inasmuch as, immediately after she had left her daughter, the alleged incident took place in the house of Mabia and even she could hear the hue and cry raised by the victim. The incident was narrated to her and it is highly improbable that the victim would not have told her the fact of alleged rape being committed on her, had it been the actual case. Other witnesses had deposed on the basis of the information gathered. Thus, here is a case of conviction of the accused-appellant solely on the basis of the testimony of the alleged victim girl. 12. Other witnesses had deposed on the basis of the information gathered. Thus, here is a case of conviction of the accused-appellant solely on the basis of the testimony of the alleged victim girl. 12. It was during the trial, the aforesaid affidavit was sworn by the victim and she filed the same before the learned trial Court. Although, the learned trial Court has taken due notice of the same but it has been held that the same could be a mitigating factor so far as sentence is concerned but not so far as the conviction is concerned. If the testimony of the victim girl is to be believed, it will have to be in a totality of the circumstances. The learned trial court having taken notice of the affidavit filed by the victim girl ought not to have ignored the same so far as the conviction of the accusedappellant is concerned. As per the said affidavit, the victim is leading a conjugal life with the accused appellant. She was even pregnant at the time of swearing the affidavit. Mr. S.C. Biswas, learned counsel for the appellant has submitted that they are now having children and leading a happy conjugal life. 13. From the testimony of the other witnesses and when compared to the testimony of the victim girl, some sort of over-enthusiasm on the part of the victim is discernible. It is in this context, her subsequent testimony through the affidavit will have to be tested. While, her mother did not state that rape was committed on her but there was outraging of her modesty, the victim girl going a step further stated in her deposition that rape was committed on her. Ironically, although Mabia was an Abettor to the offence but no accusation was made against her. She was also not examined as witness. 14. For all the aforesaid reasons, I am of the considered opinion that the accused appellant is entitled to benefit of doubt. Accordingly , this appeal is allowed by setting aside and quashing the impugned judgement of conviction and sentence dated 14.12.2007 passed by the learned Sessions Judge, Goalpara in Sessions Case No. 78/2006. Consequently the bail bond stands discharged. 15. Appeal is allowed. The Registry shall send down the case records immediately along with the copy of the judgement and order to the Court below.