JUDGMENT & ORDER : 1. Heard Mr. S.R.Barbhuiya, learned counsel for the petitioner as well as Mr H. Sarma, learned Addl. Public Prosecutor, Assam, for the Respondent State. 2. This appeal has been preferred by the appellant against the judgment and order dated 20.8.2016 passed by the learned Sessions Judge, Hailakandi in Sessions Case No.2/2014 convicting the appellant under Section 376 IPC and sentencing him to suffer rigorous imprisonment for seven years with fine of Rs.2,000/- in default to suffer another three months simple imprisonment. 3. The brief facts of the case is that one Moina Mia Laskar of village Kanchanpur Pt.II, filed a complaint in the Court of learned CJM, Hailakandi alleging that on 12.9.2013 at around 11 PM her minor daughter came out from her room to respond the call of nature and a t that time the accused appellant along with others suddenly came there armed with dagger and wrapped her face with a gamosa. They also snatched away her torch light and took her to the adjacent place and accused appellant raped her against her will. As the accused person threatened her to kill, she could not raise alarm. When the complainant started to search her then the accused fled away from the scene. On receipt of the complaint petition the same was forwarded to the O/C Hailakandi for investigation. Accordingly the O/C Hailakandi registered Hailakandi P.S.Case No.359/13 U/S 447/376/34 IPC. 4. Police investigated the case and during the course of investigation, the victim girl was medically examined and her statement was recorded by the Magistrate U/S 164 CrPC. The IO visited the place of occurrence and he also recorded the statement of the witnesses. After completion of the investigation charge-sheet was submitted against the accused appellant and another Sahab Uddin Laskar U/S 447/376/34 IPC. 5. The offence of the case under Section 376 IPC being exclusively triable by the Court of Session, the learned CJM, Hailakandi committed the case and accordingly, Sessions Case No.2/14 was registered. In due course, upon appearance of the accused and after hearing both sides, formal charge U/S 447/376/34 IPC was framed against the aforesaid two accused persons. The charges having been read over and explained, the accused persons pleaded not guilty and claimed to be tried. 6. In due course, upon appearance of the accused and after hearing both sides, formal charge U/S 447/376/34 IPC was framed against the aforesaid two accused persons. The charges having been read over and explained, the accused persons pleaded not guilty and claimed to be tried. 6. In support of the case, the prosecution examined as many as 6 witnesses including the Medical Officer and the IO and the defence examined none. Statement of the accused persons were recorded U/S 313 CrPC. The plea of defence is total denial. 7. At the conclusion of trial the learned Court found and held accused guilty under Section 376 IPC and convicted him as aforesaid. Being aggrieved with the aforesaid judgment the present appeal has been preferred. 8. Heard the submission of the learned counsel for the appellant who has submitted that the prosecution case suffers from so many infirmities like delay in filing the case, lack of corroboration of the evidence of prosecutrix which is again not supported by medical evidence and as such the conviction of the accused solely on the basis of the evidence of victim is not at all proper and legal and liable to be set aside. 9. Referring to the decision of 1998 Crl.L.J.710 Gurginder Singh-vs- State of Punjab, the learned counsel for the appellant has submitted that the testimony of the prosecutrix which is not corroborated with medical evidence and evidence of other witness and found contradictory with all material particulars indicate the falsity of the prosecution case. Regarding the delay in lodging the FIR, by referring to a decision (2003) 8 SCC 202 , State of Karnataka –vs- Mapilla P.P. Soopi it has been contended by the learned counsel for the appellant that undue delay in lodging the complaint without acceptable evidence has contributed to the doubt to the prosecution case. 10. On the other hand, relying upon the decision of State of Punjab –vs- Gurmit Singh (1996) 2 SCC 384 and 2007 (1) GLR 282 Dwarika Bhuyan –vs- State of Assam, the learned Addl. P.P. Mr. H. Sarma, has submitted that the conviction can be sustained solely on the basis of evidence of prosecutrix. 11. I have considered the rival submission of both the parties. 12. Let us discuss the evidence on record adduced by the prosecution. 13. P.P. Mr. H. Sarma, has submitted that the conviction can be sustained solely on the basis of evidence of prosecutrix. 11. I have considered the rival submission of both the parties. 12. Let us discuss the evidence on record adduced by the prosecution. 13. The informant, PW 1/father of the victim girl lodged the complaint and he has deposed that accused appellant along with Sahab Uddin, on the date of occurrence at about 11 PM kidnapped his daughter. He found his daughter on the bank of the pond in the said night and she reported him that accused persons abused her sexually. Knowing the entire fact from his daughter he lodged the complaint. 14. Brother of the informant, Amir Hussain/PW 2 in his deposition stated that the alleged incident took place about 1 year back in night around 10/11 PM. At the time of incident he was sleeping in his house which is at a distance of about 10/12 cubits from the house of PW.1. On hearing hue and cry he woke up and came out from his house and found the victim crying. He saw other people assembled there. He further stated that the accused Sahab Uddin assaulted him, the father of the victim and others and during that marpit, one Nimar Ali and Kutoi Mia were assaulted by the accused, who arrived at the place of occurrence to specify the matter. According to PW 2, he was reported by the victim that the accused persons had committed rape on her. 15. Both the witnesses have admitted in cross-examination that prior to the incident due to some dispute the PW 1 filed case against the accused person which is pending before the Court. PW 2 denied the suggestion of defence side that he did not state before the IO as about the fact that the victim told him about the rape committed by accused appellant. 16. PW 3 is the victim girl. She deposed that at about ½ years back at about 11 PM when she went out of her room to attend nature’s call at that time, 2 persons suddenly appeared and from back side wrapped her mouth with a gamosa and took her to the bank of their pond. 16. PW 3 is the victim girl. She deposed that at about ½ years back at about 11 PM when she went out of her room to attend nature’s call at that time, 2 persons suddenly appeared and from back side wrapped her mouth with a gamosa and took her to the bank of their pond. Accused Abul committed rape on her forcibly, and when her father and uncle came in search of her, seeing them she removed her clothes from her mouth and raised hue and cry on then, the accused person left the place. She further stated that after filing of the case, police got her medically examined and also got her statement recorded by the Magistrate, vide Ext.2. During investigation she also handed over her wearing clothes to police and the same was seized vide Ext.3, seizure list. 17. PW 4, Dr. R. Begum examined the victim girl on 20.9.13 at Hailakandi Civil Hospital and found her age above 18 years and below 21 years , and found no evidence of recent intercourse and also no mark of violence on her person or on her private parts, Vide Ext.4 is the medical report given by her. She also stated that she did not find any spermatozoa on examination of the victim. 18. Md. Abdul Sukkur/PW 5 has stated that he knows the accused persons as well as the victim and the informant. At the month of Ramjan at about 9 PM he heard hue and cry in the house of informant and arriving at the spot he saw quarrel going on but he left the place. In his cross examination, PW 5 has specifically stated that he does not know the subject matter of the instant case. 19. The Investigating Officer, Sri Sukendu Sekhar Das/PW 6 has deposed that on being entrusted, he investigated the case and during the course of investigation he visited the place of occurrence , drew up sketch map of the place of occurrence vide Ext.5, wherein Ext. 5(1) is his signature. He also recorded statements of witnesses and seized “Churidar” of the victim Ext.3, seizure list and got statement of the victim girl recorded by the Magistrate. On completion of the investigation submitted Ext.6, he submitted charge sheet in the case. 5(1) is his signature. He also recorded statements of witnesses and seized “Churidar” of the victim Ext.3, seizure list and got statement of the victim girl recorded by the Magistrate. On completion of the investigation submitted Ext.6, he submitted charge sheet in the case. During cross examination he has stated that he did not forward the victim for medical examination and also did not send the wearing apparel of the victim for chemical examination. He did not find any mark of violence at the place of occurrence. The IO contradicted the statement of PW 2 that said Amir Hussain/PW 2 did not state before him that the victim told him regarding commission of rape upon her by the accused. He also did not state before him that he saw the accused assaulting the father of the victim. 20. As has been mentioned above, the victim girl has given her statement U/S 164 CrPC vide Ext.2 and in her said statement victim has stated that on the day of occurrence while she was urinating at the back side of their house at about 11 PM, suddenly two accused persons gagged her mouth and took her to the side of the pond and thereafter showing threat the accused Abul committed rape upon her while the other accused Sahabuddin caught hold her. After half an hour her father along with her uncle Amir Hussain, Abdul Sukur, Nimar Ali etc. arrived. Sensing the arrival of the father of the victim and others the accused persons fled away and then she made cry and the above persons found her in naked condition. 21. Admittedly, there being no eye witness to the occurrence the evidence of prosecutrix has to be relied on and accordingly let us scrutinise the evidence of the prosecutrix having regard to all other relevant facts and circumstances. 22. It is settled law that in a case under Section 376 IPC the conviction of an offender can be sustained on the sole testimony of prosecutrix if it inspire confidence and got supported by other facts and circumstances of the case. But in the given case the statement of victim is found not consistent, as during the investigation while giving statement U/S 164 CrPC she has stated that on the arrival of her father (PW 1) and her uncle Amir Hussain (PW 2) and Md. But in the given case the statement of victim is found not consistent, as during the investigation while giving statement U/S 164 CrPC she has stated that on the arrival of her father (PW 1) and her uncle Amir Hussain (PW 2) and Md. Sukkur (PW 5) at the place of occurrence the accused persons fled away and then she made cry and she was found naked condition by the above persons. But her said statement is not corroborated by the said witnesses at all. PW 1, PW 2 and PW 5 in their evidence never stated about their arrival at the place of occurrence and that seeing them the accused persons fled away. Even though PW 1 stated that he found his daughter (PW 3) on the bank of the pond but he has not stated about the presence of the accused persons at the place of occurrence. 23. Further PW 2 and PW 5 have not at all supported the statement of said victim on the material aspect. That apart, the statement of victim lacks support from the medical evidence. As regards the age of the victim there is no positive documentary evidence and as per the evidence of Medical Officer she is above 18 years and below 21 years. That being so she can be considered as major one as has been submitted by the medical officer. 24. The prosecution has never explained the delay in the filing of the case. After several days of occurrence that took place on 12.9.2013, the complaint was filed on 16.9.13 with no explanation. The fact that there was prior enmity between the parties coupled with the unexplained delay on the part of prosecution and also taking into account the discrepancy in the evidence of the victim herself describing the incident and other witnesses it can be found that she has suppressed the genesis of the occurrence. Her statement deviated on material aspect as regards the complicity of the accused about arrival of her father and uncle (her witnesses contradicted her testimony) and the medical opinion that there was no injury on the private parts of the victim suggestive of sexual intercourse, all are enough to raise serious doubt upon the authenticity of the allegation on the part of the prosecutrix. In the facts and circumstances, falsity of allegation in view of earlier enmity between the parties and/or consent of the prosecutrix towards the act cannot also be denied. Further, the evidence of PW 2 lost its credibility as it is contradicted by the IO ,on material aspect so as to implicate the accused. Although the victim girl has stated about the involvement of both accused with the alleged offence in her statement U/S 164 CrPC but during the aforesaid trial she remained silent as about the conduct of other accused which is again suggesting of suppression of material facts. 25. Again, as per her statement U/S 164 CrPC her father arrived after hearing her hue and cry while in course of trial, she stated that her father went in search of her and found her lying naked condition and accused fled away but according to her father, she was found unconscious condition alone and he never stated that on hearing her hue and cry he arrived nor he stated about presence of accused/appellant therein. 26. In view of all such inconsistency in the evidence of the prosecutrix as well as discrepancy of evidence of other witnesses, no explicit reliance can be placed upon the testimony of the prosecutrix. As a result, conviction and sentence rendered by the trial Court is hereby quashed and set aside and the accused appellant is hereby acquitted from the charge. He is set at liberty forthwith. 27. Return the LCR along with a copy of this order to the learned trial Court forthwith. Appeal stands allowed.