Indira Shah, J.:-- This is an appeal against the Judgment and Order dated 18.09.2014 passed by learned Sessions Judge, Karimganj in Sessions Case No.92/2011 whereby the accused/appellant has been convicted under Section 366(A) and 376 IPC and sentenced to undergo Rigorous Imprisonment for seven (7) years with a fine of Rs. 5000-/(Rupees five thousand) only in default, Rigorous Imprisonment for six (6) months for his conviction under Section 366(A) I.P.C. He is also sentenced to suffer Rigorous Imprisonment for ten (10) years and fine of Rs.7,000/- in default further Rigorous Imprisonment for ten (10) months for the offence committed under Section 366 IPC. Both the sentences, shall have stated to run concurrently. 2. Heard Mr. MU Mahmud, learned counsel appearing for the appellant. Also heard Mr. K Munir, learned Addl. Public Prosecutor, Assam. 3. The prosecution case in brief is that on 04.01.2010 the victim was spreading clothes on fencing of her house compound, the accused and his companion gagged her mouth forcibly put her in an auto rickshaw and took her to an unknown place where she was raped by the accused. Thereafter, she was brought and left on road near Settlement market. When she went on missing, her father (PW 3) went on searching and could locate her on settlement road. She was weeping. She reported that while she was spreading clothes, somebody touched her back and when she turned the person sprinkled dust in her eyes and thereafter the persons put her in an auto rickshaw and took her to a room. She was assaulted and sexually abused. After two days i.e. 06.01.2010, she saw the accused engaged in earth cutting work and informed her father who with help of others apprehended the accused and handed him over to police and lodged the FIR. On the basis of his FIR Karimganj Police Station Case No.08/2010 under Section 366(A)/376/34 IPC was registered. During the investigation the victim was medically examined and her statement under Section 164 Cr.PC was also recorded. On completion of investigation charge sheet under Section 366(A)/376 IPC against the accused appellant was submitted. 4. Altogether 7 (seven) witnesses were examined by the prosecution. The accused was then examined under Section 313 Cr.PC. During the investigation the victim was medically examined and her statement under Section 164 Cr.PC was also recorded. On completion of investigation charge sheet under Section 366(A)/376 IPC against the accused appellant was submitted. 4. Altogether 7 (seven) witnesses were examined by the prosecution. The accused was then examined under Section 313 Cr.PC. He denied the allegations levelled against him and pleaded that he was engaged in earth carrying work near the house of the victim and the informant requested him to fill up some earth in his homestead but he refused and on his refusal he was handed over to police. He, however, declined to adduce any defence evidence. 5. Mr Mahmud, learned counsel for the appellant submits that there was unexplained delay of 2 days in lodging the FIR. The witnesses examined are interested witnesses and the evidence of victim is unbelievable. The victim stated that the accused sprinkled some dust like substance in her eyes and kidnapped her. She was carried in an auto rickshaw in broad day light. She did not raise any alarm although she was conscious. Her statement that she raised alarm but no body attempted to stop the auto is unbelievable. It is further contended that the victim in this case was major. 6. PW 3, father of the victim stated that his daughter went on missing from 3 P.M. and he could trace her out at 7-30 P.M. He did not inform the police. Although the victim alleged that she was raped she was not taken to doctor for examination. No FIR was lodged immediately. On the other hand, the prosecution sought to justify the findings of fact recorded by the trial court on the charge against the accused. 7. The victim herein is the solitary witness to prove the charge. Her evidence is sought to be corroborated by her parents. 8. PW 2 Dilip Das neighbour of the informant stated that he was informed that the victim was missing, her family members were searching her and they could trace her out at 7-30 P.M. PW 2 was told that the victim was kidnapped. Two days later, the informant called her and the accused was caught while he was pulling earth as labour. 9. Two days later, the informant called her and the accused was caught while he was pulling earth as labour. 9. PW 1, the victim stated that while she was spreading clothes on fencing in front of her house, one touched her back and when she turned back, he sprinkled dust like substance in her eyes, gagged her mouth and pushed her in an auto rickshaw. He took her to a godown and committed rape on her. After that he brought her back in the auto and left her on the road. While she was proceeding towards her home she met her father near Settlement market. 10. PW 3, father of the victim stated that during his search he found the victim coming towards home. She was weeping. He along with his nephew Rajen Das and Bimal Das brought her to their home. According to him there were two culprits and appellant committed rape on her. Two days later victim told him that she saw accused engaged in earth work. PW 3 along with others caught the accused and he was handed over to police. He contended that as the name and identity of the accused was not known to him, hence there was delay in lodging the FIR. 11. PW 5 is the mother of the victim and her evidence is in the same line as that of PW 3. 12. PW 6 Swapan Deb, neighbour of the victim, stated that the father of the victim in the evening, on the relevant day, enquired about the victim. He also joined her father in search of the victim and they found her. She was weeping. When she was taken home where she narrated the incident. After two days, she noticed the accused on the road and then the accused was apprehended. 13. PW 4, Dr. Abdul Mukti Tapadar examined the victim on 07.01.2010 and his finding are as follows:- “Physical examination: An average built female, normal voice, normal behaviour at the time of examination. Her secondary sex character developed, public and axillary hair present. Hymen absent. Teeth - 14/14=28. No injury is seen on her body and private parts. Laboratory Examination: Vaginal swab-under microscope showed no spermatozoa. Radiological Examination: X-ray of right wrist-not ossified. X-ray of right elbow-not yet fully ossified. X-ray of right knee joint-not ossified. X-ray of right iliac crest-not ossified. Her secondary sex character developed, public and axillary hair present. Hymen absent. Teeth - 14/14=28. No injury is seen on her body and private parts. Laboratory Examination: Vaginal swab-under microscope showed no spermatozoa. Radiological Examination: X-ray of right wrist-not ossified. X-ray of right elbow-not yet fully ossified. X-ray of right knee joint-not ossified. X-ray of right iliac crest-not ossified. In my opinion her age was below 18 years at the time of my examination. Inference - From the above examination, it showed that her age was below 18 years. No injury was found on her body and private parts. From the said examination it cannot be said that she was raped.” The doctor opined that age of the victim was below 18 years. He could not give definite opinion as to whether she was raped. In cross-examination he admitted that absence of hymen may be due to cycling, jumping etc. 14. PW 7 is the Investigating Officer. 15. Thus it emerges from the evidence on record referred to herein above that the accused was a daily labourer. He was unknown to the victim. When the victim was taken away by the accused in auto-rickshaw she did not raise any alarm or the alarm raised by her was not heard although she was taken in broad day light through busy road. The medical evidence does not positively support the case of the prosecution. However, the medical evidence in this case is of little importance since the victim was examined after 13 days of the incident. 16. After two days of the occurrence the accused was again seen working near the house of the victim which seems to be unbelievable. He was apprehended at 11.30 A.M. and was brought to Police Station at 9 P.M. Rajen Das and Bimal Das who accompanied victim's father in their endeavour to search the victim were not examined by the prosecution. 17. PW 6 contended that he accompanied the victim's father to search out the victim but PW 3, father of the victim did not state that PW 6 joined him in search operation of the victim. 18. In the case of Narendra Kumar v. State (NCT of Delhi (2012) 7 SCC 171 it was discussed in para 20 and 21, 29 and 30 as under: “20. 18. In the case of Narendra Kumar v. State (NCT of Delhi (2012) 7 SCC 171 it was discussed in para 20 and 21, 29 and 30 as under: “20. It is a settled legal proposition that once the statement of the prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. 21. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject-matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial (sic circumstantial), which may lend assurance to her testimony. (Vide Vimal Suresh Kamble v. Chaluverapinake Apal S.P. and Vishnu v. State of Maharashtra). 29. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witnesses have falsely implicated the accused. The prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However, great the suspicion against the accuse and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to benefit of every reasonable doubt. (Vide Tukaram v. State of Maharashtra and Uday v. State of Karnataka). 30. The prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. The conviction can be based on sole testimony of the prosecutrix provided it lands assurance of her testimony. However, in case the court has reason not to accept the version of the prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix found to be improbable, the prosecutrix's case becomes liable to be rejected.” 19. In the case of Raju v. State of M.P. (2008) 15 SCC 133 it was discussed as under: “Reference has been made in Gurmit Singh case to the amendments in 1989 to Sections 375 and 376 of the Penal Code making the penal provisions relating to rape more stringent, and also to Section 114-A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case alleged rape. It is however significant that Sections 113-A and 113-B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualised as the presumption under section 114-A is extremely restricted in its applicability. This clearly shows that insofar as allegations of rape are concerned, the evidence of the prosecutrix must be examined as that of an injured witness whose presence at spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally her statement can, at best, be adjudged as the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. Additionally her statement can, at best, be adjudged as the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case and others such as this one, need to be examined.” 20. In the instant case, if the evidence is appreciated it is difficult to conclude that the accused, a daily wage worker in a planned manner came in front of the house of the victim sprinkled dust like substance in her eyes, carried her away to a godown with the help of another in a auto rickshaw through the main road, committed rape on her and then brought her to settlement market area in an auto rickshaw and left her there. None could heard the alarm raised by the victim while she was kidnapped. After committing the offence the accused again dared to engage himself in earth cutting work near the house of the victim. 21. For the aforesaid reasons, in the opinion of this court the prosecution case is not natural, consistent and probable to believe to sustain the conviction and sentence of the appellant for the alleged offence said to have committed by him. Accordingly, this appeal is allowed and the impugned judgment is set aside. The accused be set with liberty forthwith, if he is not wanted in any other case. 22. Return the LCR along with a copy of this Judgment. -----------