This criminal appeal has been filed against the judgment and order dated 16.9.2009 passed by the learned Addl. Sessions Judge (FTC), Karimganj in Sessions Case No. 49/2008 convicting the accused/appellant (accused thereafter) under sections 376/448, IPC and sentencing him to undergo Rigorous Imprisonment CRF) for seven years and to pay fine of Rs. 5,000, in default, to suffer further RI for six months for the offence under section 376, IPC and to pay fine of Rs. 1,000, in default, to suffer RI for three months for the offence under section 448, IPC. 2. Prosecution case may be briefly noted. 3. The victim herself as the informant lodged first information on 26.9.2007 before the Officer-in-charge, Ramkrishnanagar Police Station, District Karimganj alleging that the accused was a very bad person. While she was offering prayer in her own house on the night of 23.9.2007 at about 10 p.m., the accused taking advantage of the absence of any male member in the house entered into her room through the open door and after gagging her mouth, he raped her. Thereafter, he left the place threatening the informant not to tell anyone about the incident. The said first information was treated as FIR and on the basis of the same, Ramkrishnanagar P.S. Case No. 92/2007 under sections 448/376/506, IPC was registered. 4. Police investigated the case. In the course of investigation, the statement of the victim was recorded under section 164, CrPC. She was also medically examined. After completion of the investigation and on finding a prima facie case against the accused, police submitted charge sheet against the accused under section 448/376/506, IPC. While submitting charge sheet, accused was shown as absconder. Subsequently, he surrendered. 5. Being a sessions triable case, the case was committed to the trial court for conducting the trial against the accused. In the course of the trial, prosecution examined 6 witnesses. At the end of the prosecution evidence, accused was examined under section 313, Cr.PC. The defence plea was of total denial and false implication of the accused because of previous grudge. However, no defence witness was produced. Evidence of Officer-in-charge of Ramkrishnanagar Police Station was taken as court witness. At the conclusion of the trial, the learned trial court came to the conclusion that accused had committed the offence under sections 448 and 376, IPC, but acquitted him of the charge under section 506, IPC. However, no defence witness was produced. Evidence of Officer-in-charge of Ramkrishnanagar Police Station was taken as court witness. At the conclusion of the trial, the learned trial court came to the conclusion that accused had committed the offence under sections 448 and 376, IPC, but acquitted him of the charge under section 506, IPC. Accused was sentenced accordingly. 6. Aggrieved, the accused as the appellant has preferred the present appeal. 7. Heard Mr. F.H. Laskar, learned counsel for the appellant and Mr. D. Das, learned Add!..Public Prosecutor, Assam for the respondent State. 8. Learned counsel for the appellant submits that learned trial court had committed an error by relying on the testimony of the prosecutrix. As would be evident from the materials on record, the testimony of the prosecutrix was tainted with falsehood and exaggeration and, therefore, conviction of the accused based on such testimony is unjustified. It is clear that information about the alleged incident was given on the night of occurrence itself, on the basis of which a GD entry was also made. There was no necessity for filing fresh FIR on 26.9.2007 wherein the fact of the first information made on 24.9.2007 was suppressed. He submits that the circumstances clearly suggest that the prosecutrix was a consenting party and to wriggle out of a tight situation, she had falsely implicated the accused. Learned trial court though discarded a portion of her evidence as exaggerative, failed to consider the prosecution case from the correct perspective, thereby causing miscarriage of justice. He finally submits that there is no conclusive proof to come to any definite finding that accused had committed the offence of rape and, therefore, the conviction and sentence of the, accused is liable to be set aside and quashed. 9. On the other hand, learned Addl. Public Prosecutor supports the findings of the learned court below. He submits that in a case of this nature, there is bound to be some exaggeration and it is the duty of the court to separate the grain from the chaff, which the learned court below did in the present case. No case for interference is made out, he submits. 10. Submissions made have been considered. The case records have also been perused. 11. The criminal process in this case was set in motion with the lodging of the first information by the prosecutrix on 26.9.2007. No case for interference is made out, he submits. 10. Submissions made have been considered. The case records have also been perused. 11. The criminal process in this case was set in motion with the lodging of the first information by the prosecutrix on 26.9.2007. Though a first information need not be or need not contain a detailed narration of every aspect of the incident, it nonetheless must disclose the essential facts to enable the police to register a criminal case. In the FIR (Exhibit-1), prosecutrix stated that while she was offering prayer at about 10 p.m. on 23.9.2007 in her room, the accused entered into her room through the open door taking advantage of the absence of any male member in the house and committed rape on her. He had gagged her mouth while committing the act. While leaving, the accused threatened her not to tell others about what had happened. In her statement recorded under section 164, Cr.PC on 4.10.2007, i.e., after about a week of the incident, she stated that on the night of 23.9.2007 at about 10 p.m. while she was praying in her room, the accused entered into her room through the open door. He threatened her by saying that if she raised hue and cry, he would cut her into pieces. She further stated that her sick mother-in-law getting some hint about what was going on, came out of her room. While going out, the accused even threatened her mother-in-law and caused injuries on different parts of the body of her mother-in-law. After the accused left, both she and her mother-in-law raised hue and cry and then people came out. 12. Let us examine the deposition of the prosecutrix before the court. She gave evidence as PW1. She stated that on 23.9.2007, which was a Sunday, at about 10 p.m., she was offering prayer (namaz) in her house. She did not lock the door of her room from inside. Her sick mother-in-law was in the nearby room. She was alone in her room as her husband had gone to Khliehriat at Meghalaya. The accused came into her room through the open door and after gagging her mouth, he threatened her that he would cut her into pieces if she raised hue and cry. He forcibly raped her amidst scuffles. Hearing the sound of scuffles, her mother-in-law came out from the other room. The accused came into her room through the open door and after gagging her mouth, he threatened her that he would cut her into pieces if she raised hue and cry. He forcibly raped her amidst scuffles. Hearing the sound of scuffles, her mother-in-law came out from the other room. Though she called her, prosecutrix could not reply as the accused had put his hand on her mouth. At that time, the accused was raping her. Not getting any reply, her mother-in-law carrying a lamp in her hand came and stood in front of the door of her room. She asked the accused as to why he came to their house. Then, the accused went out and while leaving, he pushed her mother-in-law to the ground and told them that he would cut both of them to pieces if they raised any hue and cry. After he left, both prosecutrix and her mother-in-law cried aloud but nobody came to their house. After two hours of the incident, her brother--in--law and father-in-law came back home after performing namaz in the nearby mosque. She and her mother-in-law narrated about the incident to them and on that night itself, prosecutrix went to the Ramkrishnanagar Police Station and lodged first information in writing, where she had put her signature. She further stated that thereafter they returned home. The police came to their house on the next day. She was taken to the hospital where she was medically examined. Her statement was also recorded by the Magistrate. In her cross--examination, she stated that there is a Hindu temple near their house and the accused was a watchman of the temple. Though a suggestion was made that accused used to prevent stock--piling of bamboo, thatch etc. near the temple by her husband and other family members, the same was denied. She stated that there were about 12 members in her family. The evening prayer at the mosque was usually performed at 8 p.m. 13. Her mother-in-law deposed as PW2. She stated that husband of the victim was her step--son. The night of occurrence was in the fasting month. Since she was not well, she was sleeping in her room when she heard some sound coming from the room of the prosecutrix. The evening prayer at the mosque was usually performed at 8 p.m. 13. Her mother-in-law deposed as PW2. She stated that husband of the victim was her step--son. The night of occurrence was in the fasting month. Since she was not well, she was sleeping in her room when she heard some sound coming from the room of the prosecutrix. She silently went in front of the door of the room of the prosecutrix with a lamp in her hand and she saw the accused 'raping' her. When she uttered 'what are you doing son', accused let off the prosecutrix and left the place running. While leaving, he pushed her to the ground. Nobody came out when she and her daughter--in--law raised hue and cry. 14. PW3 is the uncle of the husband of the prosecutrix. He stated that while returning home from the mosque after performing namaz, he saw the victim, her mother-in-law and his wife crying. They told him that the accused had entered into the room of the prosecutrix and committed rape on her on the mat used for performing namaz. In his cross-examination, he stated that he was with the victim when the ejahar was written, which was written in the night of 23.9.2007-24.9.2007. 15. Dr. Bidhan Chandra Biswas, the doctor, deposed as PW6. He stated that on 24.9.2007, he had examined the informant. While the informant was referred for medical examination, no case number was mentioned in the requisition slip. As per medical examination, no sign or mark of violence was found on her body including on her private parts. There was no sign of any recent sexual intercourse. 16. The Investigating Officer (I.O.) deposed as PW7. He stated that though the date of occurrence was 23.9.2007, information was lodged on 26.9.2007. Delay was explained by the victim on account of village "Bichar". But he did not examine any of the village people who participated in the "Bichar". He stated that the victim was already sent for medical examination on 24.9.2007. He also stated that he had sent the victim before the Magistrate to get her statement recorded under section 164, Cr.PC on 4.10.2007. PW2 did not say before him that when she appeared on the scene she saw the accused committing rape on her daughter-in-law. 17. The Officer-in-charge of Ramakrishnanagar Police Station Sri Debojibon Saikia was summoned to depose as court witness. PW2 did not say before him that when she appeared on the scene she saw the accused committing rape on her daughter-in-law. 17. The Officer-in-charge of Ramakrishnanagar Police Station Sri Debojibon Saikia was summoned to depose as court witness. He stated that on 24.9.2007, he was attached to the Ramakrishnanagar Police Station. He had made GD Entry No. 499 on that day because the informant had verbally informed him that the accused had committed rape on her on the night of 23.9.2007. After making the GD entry, the informant was sent for medical examination. No formal FIR was submitted and he also did not write down the Contents of the oral information made by the informant. 18. Section 154 of the Cr.PC clearly provides that every information relating to the commission of a cognizable offence, if given orally to an Officer-in-Charge of a police station, shall be reduced to writing by him or under his direction. Such information reduced in writing should be read over to the informant and her signature should be taken. A copy of the information as recorded should be given to the informant forthwith free of cost. 19. Apparently, in the present case, though oral information was given on 24.9.2007, the same was not reduced to writing as required under the law. Though GD entry Was made, no police case was registered. Police case was registered only when the second FIR was filed on 26.9.2007. But, as already noticed above, in the second FIR, there is no mention at all about the first information given on 24.9.2007. The omission to follow the procedure prescribed in section 154, CrPC is a vital one but equally important, if not more, is the omission to mention this fact in the FIR lodged on 26.9.2007. In the said FIR, the informant also did not mention about the presence of her mother-in-law at the scene of offence. These additional facts have been brought in by the informant in her statement recorded under section 164, Cr.PC where she also stated that the accused had caused injuries on different parts of the body of her mother-in-law. The evidence on record clearly demonstrates that there were no such injury marks on the person of PW2, the mother--in--law. 20. As already discussed, the first information need not be an exhaustive narration of the incident but essential facts must be disclosed. The evidence on record clearly demonstrates that there were no such injury marks on the person of PW2, the mother--in--law. 20. As already discussed, the first information need not be an exhaustive narration of the incident but essential facts must be disclosed. Failure to mention essential or vital facts will definitely cast a shadow of doubt over the prosecution case. In the present case, besides not mentioning about the presence of PW2, the FIR is completely silent on the previous information given to the police on 24.9.2007. 21. The medical report clearly rules out any sexual assault. No sign of physical assault or violence on the person of the informant was found, including on her private parts. PW1 stated that while she was raped, there was a scuffle. But when she was medically examined on the next day of the incident, no injury or mark of violence was found. It is highly improbable that there will be no sign of violence on the body of PW1 if indeed there was a scuffle between two grown up adults, that too, over a sexual assault. 22. The fact that the informant had kept the door of her room in an unlocked condition, that too at about 10 p.m. in the night in a rural set up when she was alone, is clearly suggestive of the informant facilitating entry of the accused into her room. This interference is further strengthened when her mother--in--law, PW2, stated in her evidence that hearing some sound coming from the room of the informant, she silently came in front of the door of the informant's room carrying a lamp in her hand and she saw the accused 'raping' the informant. Seeing that, she had uttered the words 'what are you doing son', meaning thereby that the accused was known to her. In fact, she stated in her deposition that the accused was from the same village. In such circumstances, affinity between the prosecutrix and the accused, being from the same village, could not be ruled out. Otherwise, why will PW2 come silently in front of the room of the informant. If indeed there was sexual violence, there was no reason for her to come silently to the room of the informant." 23. In such circumstances, affinity between the prosecutrix and the accused, being from the same village, could not be ruled out. Otherwise, why will PW2 come silently in front of the room of the informant. If indeed there was sexual violence, there was no reason for her to come silently to the room of the informant." 23. Therefore, on a threadbare assessment of the evidence on record, it cannot be said with any degree of certainty that the accused had committed rape on the prosecutrix. On the other hand, there are certain indicators, as noticed, which are clearly suggestive of the consensual nature of the act by the accused and the informant. Sexual intercourse may have taken place or may not have taken place. But clearly the two of them were found in a compromising position by the mother-in-law (PW2). 24. Having regard to the above and on a careful scrutiny of the evidence on record, I am of the view that prosecution version is not at all reliable and it would not be safe to convict the appellant either under section 376, IPC or under section 448, IPC. The conviction and sentence imposed by the learned trial court, therefore, cannot be sustained. 25. Accordingly, the impugned conviction and sentence dated 16.9.2009 is hereby set aside and quashed. Appellant, who is in detention, shall be released forthwith, if not wanted in any other case. 26. Registry to send down the case record immediately. _______________