JUDGMENT Hon’ble Mrs. Ranjana Pandya, J.—Challenge in this appeal is to the judgement and order dated 19.10.2015 passed by Additional Session Judge (Fast Track Court), Lalitpur in S.T. No. 65 of 2015 (State v. Ganesh Sen) arising out of Crime No. 502 of 2015, under Section 452, 376 (1), 387 I.P.C., Police Station-Lalitpur, District-Lalitpur, whereby the learned lower Court found the accused-appellant guilty under Sections 452, 376(1) and 387 I.P.C. and sentenced him to 5 years rigorous imprisonment and Rs. 5,000/- under Section 452. 10 years rigorous imprisonment and Rs. 10,000/- under Section 376(1) and 4 years rigorous imprisonment and Rs. 4,000/- under Section 387 I.P.C. with default stipulation. 2. As per the prosecution case an F.I.R. was lodged by the victim herself to the S.P., Lalitpur stating that on 8.3.2015 at 5:00 p.m., the accused came to the residence of the informant and demanded Rs. 50,000/-. The informant refused to give him money, at which the appellant threatened the victim and said that if she would tell anybody about their relationship or about the appellant, he would kill her husband and her children with his witchcraft “Tantra Vidya” and would also show her clips to everybody. The informant was very much afraid from the threat of the appellant. 3. The husband of the victim is working in the Fisheries Department, who was posted at Matateela. The son of the informant is studying at Bhopal and her daughter is doing the Beauty Parlor course. Six months prior to the lodging of the F.I.R., the informant was having ill-health. She was going to the hospital, on the way near Tuvan Temple, she met the appellant, who saw the condition of the informant and said that he would treat her with his witchcraft. The informant believed the appellant, who came to her house to treat her. She was alone in the house. The appellant sprinkled some water, which he had brought alongwith him, on the victim, due to which the victim became unconscious. At this, the appellant raped her and clipped her naked photographs by his mobile. When the informant gained consciousness the appellant said that whenever he would want, he would have intercourse with the victim and if she revealed anything to anybody or resisted his coming he would show her photographs to everybody and would defame her. At this, the appellant raped her and clipped her naked photographs by his mobile. When the informant gained consciousness the appellant said that whenever he would want, he would have intercourse with the victim and if she revealed anything to anybody or resisted his coming he would show her photographs to everybody and would defame her. On this threat, the appellant raped the victim for six months continuously and also tortured her mentally and physically and extorted money many times he had taken one to two thousand rupees from the victim also, hence the report was submitted on 11.3.2015. 4. The victim was medically examined by Dr. Ashu Bajaj, P.W.3 on 25.3.2015, she did not find any marks of injury on the body of the victim. The Doctor found swelling in uterus of the victim and a small cyst in the ovary. This witness proved the medical report as Exhibit Ka-3 and the ultrasound report as Exhibit Ka-4. 5. P.W. 4 is Inspector Mangla Prasad, who conducted the investigation. He copied the copy of the report, copy of the G.D. on 24.3.2015. He inspected the spot, prepared the site plan, which was proved as Exhibit Ka-5. The statement of the victim was recorded by lady Sub-Inspector Awadhesh Rajpoor. Videogrpahy was got prepared, C.D. was also prepared. The Statement of Constable Mithlesh was recorded. The accused was arrested near the Temple. His statement was recorded. The statement of the victim was got recorded under Section 164 Cr.P.C. on 27.3.2015. 6. On 30.3.2015 this witness copied the statement of the victim recorded under Section 164 Cr.P.C. in the case diary. He copied the medical report and X-ray report in the C.D. On 11.4.2015 he recorded the statement of Km. Arti, Laxmi and Suresh Kumar, besides he also recorded the statement of Dr. Ashu Bajaj and other witnesses and submitted the charge-sheet, which was proved by this witness as Exhibit Ka-6. 7. The prosecution examined as many as four witnesses. P.W. 1 is the informant, who proved the written report as Exhibit Ka-1. P.W. 2 is the daughter of the victim namely Arti. P.W. 3 is Dr. Ashu Bajaj and P.W. 4 is Inspector Mangla Prasad, whose evidence has been discussed by me. P.W. 5 is Sant Kumar Yadav, Sub Inspector, who proved the chick report and copy of the G.D. as Exhibit Ka-7 and Ka-8. 8. P.W. 2 is the daughter of the victim namely Arti. P.W. 3 is Dr. Ashu Bajaj and P.W. 4 is Inspector Mangla Prasad, whose evidence has been discussed by me. P.W. 5 is Sant Kumar Yadav, Sub Inspector, who proved the chick report and copy of the G.D. as Exhibit Ka-7 and Ka-8. 8. After close of the evidence the statement of the accused was recorded under Section 313 Cr.P.C., who stated that he is innocent and the informant was a lady of easy virtues. Many people used to come to her house, which was objected to by the accused, hence he was falsely implicated. No defence was adduced by the appellant. 9. The learned lower Court after hearing the learned counsels for the parties and perusing the record, found the accused guilty and convicted him as specified in para 1 of the judgement. 10. Feeling aggrieved, the accused-appellant has come in appeal. 11. I have heard the learned counsel for the parties and perused the record of the trial Court. 12. It has been submitted by the prosecution that as per prosecution case itself the victim was being raped for six months prior to the occurrence and report was lodged after an inordinate delay of six months after the occurrence. This inordinate delay has not been explained by the prosecution, which is fatal for the prosecution case. 13. Learned counsel for the appellant has placed reliance upon Rajesh Patel v. State of Jharkhand, AIR 2013 4179, in which the Hon’ble Apex Court laid down that : “Therefore, the inordinate delay of 11 days in lodging the FIR against the appellant is fatal to the prosecution case. This vital aspect regarding inordinate delay in lodging the F.I.R. not only makes the prosecution case improbable to accept but the reasons and observations made by the trial Court as well as the High Court in the impugned judgement are wholly untenable in law and the same cannot be accepted. Therefore, the findings and observations made by the Courts below in accepting delay in lodging the F.I.R. by assigning unsatisfactory reasons cannot be accepted by this Court as the findings and reasons are erroneous in law.” 14. Admittedly, the victim was a married lady with two children. In the statement the victim has admitted that she has two children. Her son is 22 years old and her daughter is 24 years old. Admittedly, the victim was a married lady with two children. In the statement the victim has admitted that she has two children. Her son is 22 years old and her daughter is 24 years old. She herself stated her age to be 45 years. This is not a case, where a young girl is raped. But in this case, the mother of two children the elder being 24 years of age is being raped continuously for six months. She is giving money to the appellant now and again and saying that she was forcibly raped against her wishes is neither palatable nor digestible nor probable to believe. 15. Although the victim has stated that she was put to fear of death of her husband and her children by the accused-appellant, but it appears that this statement has been given by the victim just to save her skin from defamation and the questioning eyes of her husband and her children. The initial statement on behalf of the victim that when being known to the appellant, the appellant stated that he would treat her is also not very reliable. The informant has stated that she was sitting in the Courtyard when the accused came. He sprinkled some water on her. She became unconscious and she was raped. She was naked inside the room when she gained consciousness, but she met the accused outside the door, on being questioned the accused-appellant told her that he had raped her. This is a very strange conduct of a married woman, questioning the rapist. Further this victim has stated that the accused kept on coming to her house and she was financially extorted and physically tortured by the accused for last six months. The accused took money from her many times, but she did not reveal all these fact to anybody. When she become much victimized, she got the report typed and gave it to the S.P., Lalitpur. 16. As per the statement of the victim herself, she kept on tolerating the victimization and the rape, but when she got harassed more, then she lodged the report. She has nowhere stated why she tolerated these acts of the accused-appellant from six months is a million dollar question, which remained unanswered throughout the trial. She did not even report the matter to any of her neighbourer. She has nowhere stated why she tolerated these acts of the accused-appellant from six months is a million dollar question, which remained unanswered throughout the trial. She did not even report the matter to any of her neighbourer. The daughter of the victim Arti who is a major girl aged about 25 years has stated that she asked her mother, why she did not narrate the incident to her and why report was not lodged earlier, at which the victim said that she was frightened, when her father came home, report was lodged. This explanation for lodging the F.I.R. after inordinate delay of six months is very fatal for the prosecutrix and it gives a clear indication that the victim was a consenting party to the whole act and raises a shadow of doubt raising chances of false implication and embellishment. 17. As far as medical aspect of the matter is concerned P.W. 3 Dr. Ashu Bajaj has stated that if a lady is forcefully raped, there would be tenderless and redness in the hymen, which was absent in the case of the victim. The presence of cyst in the ovary of the victim or the uterus being bulky with thickened endometreuns has nothing to do with the offence of rape. Thus, no injuries were found on the body of the victim. This does not mean that injuries on the person of the victim are must to prove charges of rape against the appellant, but in case of forced sex there are chances of abrasion on the thigh, breast, hands and neck of the victim, which are absent in the present case. 18. It is trite law that generally, if the evidence of the victim is trustworthy, probable and reliable, on the sole testimony of the prosecutrix, conviction can be based. But the statement of the prosecutrix in such a case should be free from embellishment and be probable. 19. P.W. 1 victim has stated that she has passed class 8th. She knew the accused 3-4 months prior to the occurrence. The name of the accused was told to her by the people of the locality. Contradicting her own statement, she has stated she met the accused a couple of months before lodging the report. 19. P.W. 1 victim has stated that she has passed class 8th. She knew the accused 3-4 months prior to the occurrence. The name of the accused was told to her by the people of the locality. Contradicting her own statement, she has stated she met the accused a couple of months before lodging the report. Further, she has stated that on 5.3.2015 for the first time the accused entered her house, if the accused entered the house of the victim for the first time on 5.3.2015, how can he said to have raped the victim continuously from six months prior as the F.I.R. was lodged on 11.3.2015. 20. Further, the statement of the victim which clearly points out to her consent in the matter, in which she has specifically stated that : ^^fnukad 5-3-2015 dks lka; 4&5 cts izFke ckj vfHk;qDr esjs ?kj vk;k FkkA ml le; eSa ?kj ds nkyku esa cSBh FkhA vfHk;qDr esjs ?kj esa fiNys njokts ls vk;k FkkA** The backdoor entry of the accused in the house of the victim is speaking volumes for itself. 21. The victim has admitted that her daughter had seen the accused in her house a couple of times. The accused was sitting with the victim, but her daughter did not ask the victim anything about the appellant nor she told this fact to her father. The victim has admitted that she herself called the appellant, at that time she was alone in the house. The extent to which this witness has gone to state incorrect facts is that she bleeded, when she was raped for the first time. She tried to behave as if she was a virgin, when she was raped by the appellant. She has stated that she lodged the report three days after the occurrence. She has admitted that the accused continuously came to her house once daily, he committed sexual intercourse with her without using contraceptive. She had not being sterilized, but she did not retain pregnancy from the appellant. These statements clearly reflect that the victim was a consenting party. 22. The statement of the daughter of the victim namely Arti P.W. 2 who has stated that since she was doing the course of beauty parlor, she remained out of the house from 9:00 a.m. to 6:30 p.m. Her mother used to stay alone in the house. These statements clearly reflect that the victim was a consenting party. 22. The statement of the daughter of the victim namely Arti P.W. 2 who has stated that since she was doing the course of beauty parlor, she remained out of the house from 9:00 a.m. to 6:30 p.m. Her mother used to stay alone in the house. In 2015, she was cooking food on the festival of Holi, when the appellant came and abused the victim and demanded money. After the accused left, the daughter asked her mother, who revealed that she was raped continuously by the accused, who had clipped her vulgar photographs and extorted money from her. 23. In cross-examination, this witness has stated that she is post-graduate and her brother is doing B.A.M.S. and her father does not live at Lalitpur. Near her house there is the building of State Bank of India, where Guard stayed for 24 hours and adjoining her house there is a police club, where police personnel are generally present. The appellant was known to this witness three months prior, she had also got herself treated by the accused-appellant two months prior, but the accused-appellant did not rape her. How a mother who was raped for six months continuously by the accused-appellant on the pretext of witchcraft would allow a rapist to do witchcraft on her daughter too, is not palatable. Thus, the whole prosecution story is nothing but a bundle of lies put forth by the prosecution. 24. The accused in the statement recorded under Section 313 Cr.P.C. while denying the occurrence has stated that he has been falsely implicated this suggestion was also put to the prosecution witnesses, who denyied the same. 25. Be that as it may the prosecution has miserably failed to prove its case beyond reasonable doubt against the accused and the trial Court has committed illegality in convicting the accused in a case, in which the F.I.R. is very delayed, and the prosecution evidence is wholly unreliable. 26. Thus, the evidence of the victim is shaky, unreliable, not worthy of credence and the prosecution has miserably failed to prove the case against the appellant. 27. Thus, on the basis what has been stated above, I find that the learned lower Court has misled itself in reaching to the conclusion that the accused-appellant is guilty for the offence charged. Thus, the evidence of the victim is shaky, unreliable, not worthy of credence and the prosecution has miserably failed to prove the case against the appellant. 27. Thus, on the basis what has been stated above, I find that the learned lower Court has misled itself in reaching to the conclusion that the accused-appellant is guilty for the offence charged. Thus, the accused-appellant is entitled to be acquitted and the appeal is liable to be allowed. Hence the impugned judgement of conviction and sentence dated 19.10.2015 passed by Additional Session Judge (Fast Track Court), Lalitpur in S.T. No. 65 of 2015 (State v. Ganesh Sen) arising out of Crime No. 502 of 2015, under Section 452, 376 (1), 387 I.P.C., Police Station-Lalitpur, District-Lalitpur are hereby set aside. 28. Accordingly, the appeal is allowed. 29. The accused-appellant is in jail. He shall be released forthwith in this case. The provisions of Section 437A Cr.P.C. shall be complied with. 30. Let a copy of this order be sent to the trial Court concerned.