JUDGMENT : RATNAKER BHENGRA, J. 1. This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 31.05.2003 passed by Shri Rakesh Ranjan Verma, Sessions Judge, Pakur in Sessions Case No. 24 of 2003 whereby and whereunder appellant has been sentenced to undergo R.I. for seven years under Section 376 of the Indian Penal Code. 2. The prosecution case, in brief, as per the written report is that on 17.11.2002 at 6 p.m. at village Silampur, P.S. Maheshpur, District Pakur, the victim/informant (name concealed) had gone to fetch water from the water pump (chapakal). At that time, the accused Misan Seikh was standing in front of his door. The accused Misan Sheikh forcibly dragged the informant and took her to the outer room of his house and there he committed rape upon her, the informant after about an hour, came out from the room raising hulla after she was released. On her hulla, many persons came there. The villagers told that matter will be considered. But the accused Misan Sheikh fled away from the village and so matter was not considered. 3. On the basis of the written report of the informant a formal F.I.R. was drawn at Maheshpur Police Station as P.S. Case no. 125 of 2002 on 28.11.2002. After investigation, charge sheet was submitted against the appellant. Thereafter, cognizance was taken and the case was committed to the court of Sessions. Charges were framed u/s 376 IPC and trial was held after which on conclusion he was held guilty under the aforesaid section and sentenced for seven years rigorous imprisonment. Hence, this appeal. 4. The prosecution has examined altogether six witnesses, out of whom, Anial Mandal, P.W.2, is the father of the victim, Gulam Gaus is P.W. 4, Abdul Sk. is P.W.5. The informant herself is P.W.1 and Dr. Smt. Anita Sinha is P.W.6 and the I.O., of the case is Banshidhar Jha P.W. 3. 5. Defence has also examined two witnesses Razaque Mandal D.W.1 and Afsar Mandal as D.W.2. 6. P.W.1 informant and victim has stated that Misan Sheikh forcibly dragged her to his house when she had gone to fetch water from the hand pump (Chapakal). Misan Sheikh threatened her and so she was unable to raise alarm (hulla) and that he then committed rape on her forcibly. 6. P.W.1 informant and victim has stated that Misan Sheikh forcibly dragged her to his house when she had gone to fetch water from the hand pump (Chapakal). Misan Sheikh threatened her and so she was unable to raise alarm (hulla) and that he then committed rape on her forcibly. Misan Sheikh, after committing rape on her, threatened that if she told about this act to any person, he would kill her, and then she came out from the room weeping at about 7 p.m. She has also stated that, on hearing her voice, many villagers had gathered there. She has proved her signature (Ext.1) on her written report. In the cross-examination, she (PW1) has further stated that she was wearing nighty, petticoat and pants and that her nighty had been torn at the time of occurrence. In her cross-examination she has stated that her father had not gone to the house of Misan Sheikh for arranging her marriage with Misan Sheikh. The defence has suggested to the victim that her father had lodged this false case for compelling Misan Sheikh to marry her. The victim (PW1) has denied this suggestion. 7. P.W. 2, Ainul Mandal, is the father of the victim. He has stated that he was not present at his house on the date of occurrence and that he returned after two days and then he learnt about the occurrence of this case. P.W.4 Gulam Gaus has also stated that he heard on Monday that Misan Sheikh committed indecent act against the informant. P.W.5 Abdul Kudus Sheikh has also stated that he heard from the informant that Misan Sheikh committed rape on her. P.W.4 and PO.W. 5 are both hearsay witnesses. 8. P.W.6, Dr. Smt. Anita Sinha has stated in her deposition that she had examined the victim at 2:15 p.m. on 29.11.2002 and had found hymen intact. She has also stated that she had not got pathological examination of the swab of the victim since the victim had been examined by her after 12 days from the date of occurrence and so, she thought that there is no significance for pathological examination for spermatozoa. From perusal of the medical report of Dr. Anita Sinha (PW6) it appears that she has stated that the hymen of the victim had not been found torn. 9. From perusal of the medical report of Dr. Anita Sinha (PW6) it appears that she has stated that the hymen of the victim had not been found torn. 9. P.W.3 is the I.O. of this case has stated that he had drawn a formal F.I.R. on the written statement of the informant . He has proved the formal F.I.R. (Ext.2) and has also proved seizurelist (Ext.3) of the nighty and pant produced before him by the victim. 10. Learned counsel for the appellant has first taken us through the depositions. Regarding P.W.1, he said that in para-4 P.W.1, the alleged victim does not indicate rape took place. The informant deposed that she was dragged by the appellant when she had gone to fetch water from the water pump. So some one must have seen her being dragged to the appellant's place, but it is not so. Again in para-5 it is said that movement of people was there. He has also argued that in para-12, she said that she was only able to tell Rashida, and no one from nearby, while in the F.I.R. she has said that on alarm many persons reached there. This is a vital contradiction. He has also argued that in para-13 it is said that her father had not gone to the appellant's house with marriage proposal which is not true. He has also argued that if as per para-14 the bucket was not found, it means the incident did not take place. 11. Appellant's counsel submitted that P.W.2 Ainul Mandal, father of the alleged victim, deposed that he came after two days of occurrence. In his cross-examination he says that his daughter had already given information to the police station. Counsel had argued that the occurrence is of Sunday, 17.11.2002. If father came to know two days later, and the father says the police were already informed, then the F.I.R of the 28.11.2002 becomes doubtful. So the gap was used to manufacture the case against the appellants. 12. Learned counsel further submitted that P.W.5, Abdul Kudus Sheikh, is the own cousin brother of the victim's father. He has deposed that at the time when victim was talking about the incident many persons were going to the Masjid. His village is a big one of about 400500 houses of Muslims. P.W.5 has deposed that after the victim told him about the incident, he went home. He has deposed that at the time when victim was talking about the incident many persons were going to the Masjid. His village is a big one of about 400500 houses of Muslims. P.W.5 has deposed that after the victim told him about the incident, he went home. Counsel has argued that how come when and it is such a big village, it was time for prayer and people are going to the masjid by that route, then no one else was informed and no alarm made as said in the deposition of P.W.5. This is contradictory to the alarm made and people gathering as said in the F.I.R. Counsel has said that D.W.1, Rajak Mandal who is related to the victim had gone with three other persons to meet the father of the appellant regarding the marriage of the victim with the appellant and that with him D.W.2 Afsar Mandal, Hasumuddin Sheikh and the victim's father had also gone. 13. Regarding D.W.2, Afsar Mandal, appellant counsel has argued that he had also gone to the house of Misan Sheikh or the appellant for marriage proposal. That D.W.2 is also related to the victim, since victim's father Ainul Mandal is his cousin brother. Regarding P.W.3, the investigating officer Bansidhar Jha has deposed in para-3 that he had seized the relevant clothes of the victim, but they were not produced in the court. However, the Trial Court judgment has relied on this. Counsel said that if the clothes were not produced in court, then they cannot be used for convicting the appellant. 14. Appellant's Counsel has further argued that there is no eye witness. Further here in this case there is no circumstantial evidence that rape has been committed upon the victim to warrant conviction upon the appellant. The learned trial court has failed to appreciate that the written report was submitted after a lapse of 11 days and there has been no explanation to that effect also there is no mark of violence, which was found in the body of the victim and therefore, there is nothing to corroborate that a rape was actually committed. Learned court below has failed to appreciate that Dr. Anita Sinha who had examined the victim girl at 2:15 on 29.11.02 had found hymen was not torn. Learned court below has failed to appreciate that Dr. Anita Sinha who had examined the victim girl at 2:15 on 29.11.02 had found hymen was not torn. The doctor has categorically and specifically stated that she had not got pathological examination of the victim since the victim was examined after 12 days. Therefore, the learned court below may be right in not giving importance to pathological examination report, but the very fact that the hymen was intact leads to the conclusion that the girl was not raped. The doctor having clearly and specifically stated in her deposition in paragraph nos. 7 that the hymen was intact, demolishes the entire prosecution case. The court below cannot take shelter of things which were not put to the witnesses by the prosecution. He has further submitted that hymen was intact and not ruptured then the logic given by the court that the hymen of the victim might be thick and fleshy such explanation cannot be admitted and cannot be basis for the purpose of convicting the appellant when there is no such material on record. It was for the prosecution to prove that the hymen was thick or fleshy or it was for the court to seek clarification from the expert or the doctor. The reference has been made by the Trial Court to Modi's jurisprudence that the fact remains that the court has not examined what was the age of the victim in the present case and moreover, in the said case the doctor was categorically asked to explain whether the hymen being not ruptured, can a girl be said to have been raped and the explanation of Modi was that if it is thick and fleshy it may not be ruptured even if raped. In the instant case, no clarification was sought. There is nothing on record and therefore, things which is not available on record cannot be imposed by the court for the purpose of convicting an accused merely because the allegation of rape has been made. 15. Learned Counsel for the appellants has also argued that the victim's father had gone for marriage proposal and it was refused on the ground that the father of victim was involved in a dacoity case. This is apparent from deposition of D.W.1, and the father being of criminal mind had got the case lodged. 15. Learned Counsel for the appellants has also argued that the victim's father had gone for marriage proposal and it was refused on the ground that the father of victim was involved in a dacoity case. This is apparent from deposition of D.W.1, and the father being of criminal mind had got the case lodged. Finally he has said that, since the case is of the year 2002, the old law will prevail, and penetration is required to be proved or rape established. 16. Learned Counsel for the appellant has also cited: (I) Jay Krishna Mandal and another Vs. State of Jharkhand (2010) 14 SCC 534 (II) State of Andhra Pradesh Vs. Jalapath Subbarayudu and others (2010)15 SCC 472 (III) Narendra Kumar Vs. State, (NCT of Delhi) (2012) 7 SCC 171 . This is to indicate the evidences available on the points of clothes of victim being seized and not produced and the reliability of the victim's or prosecutrix, to buttress his case for acquittal. Learned counsel for the appellant has stated that in this case also, on the basis of the evidence and circumstances the appellant should be acquitted. 17. On the other hand learned counsel for the state, learned APP, has argued that it has come in the F.I.R itself that the village people have said that the matter will be discussed. That is why there was delay in lodging the F.I.R, so the delay is inconsequential. Moreover, if it had come that even the village people were concerned then it means, the occurrence did take place. Regarding not raising alarm, counsel said that it has come that she was threatened, so she did not raise alarm because of fear. Counsel for the state has also stated that this is a case of rape and it is well established that the version or allegation of the prosecutrix are sufficient to convict, and minor discrepancies should not come in the way of upholding conviction. Learned APP has also cited Puran Chand Vs. State of Himachal Pradesh (2014) 5 SCC 689 and Deepak Vs. State of Harayana, (2015) 4 SCC 762 to support his point on the question of delay and also non-rupture of hymen and then the applicability of section 114 A of the Indian Evidence Act. FINDINGS: 18. After having gone through the arguments and the records of the case, certain aspects come to mind. State of Harayana, (2015) 4 SCC 762 to support his point on the question of delay and also non-rupture of hymen and then the applicability of section 114 A of the Indian Evidence Act. FINDINGS: 18. After having gone through the arguments and the records of the case, certain aspects come to mind. First the circumstances, the issue of delay. It seems from the argument of the appellant's counsel, this issue was not properly raised by the prosecution at the time of trial, but rather explained by the learned Court itself. The incident is of 17.11.2002 and the F.I.R is dated 28.11.2002, a gap of almost 12 days with no explanation whatsoever. However counsel for State, learned APP has in appeal argued, that from the written report a Panchayati (Vichar) was to take place, hence the delay may be due to that. To which counsel for the appellant has said that there is no reference to any panchayati taken place or even attempt at panchayati, so such lame excuses cannot be allowed. Simply put, there is no explanation for delay and during this time an appropriate case was manufactured against him. In this light appellant's counsel has also argued that when the father returned after two days, he came to know that she had already given complaint to police, or informed the police. Appellant's counsel has raised this aspect and said then there may be two versions of the complaint and both should have been produced on record. Though, not inclined to rely on the given F.I.R, it does raise a doubt as to what was the first information or complaint given to the police. Because then also delay would not be made out. From the written report of the prosecutrix itself it is informed to us that just after she was allegedly raped, she had made alarm at the place or just when she came out of the house and people had gathered and she has also said that people gathered also in her deposition. However, P.W.5, who is Abdul Kudus Sheikh has in his deposition said that when victim was telling him about the incident, then there was no one else on the spot, but, he has mentioned people going to the masjid. P.W.5 does not say that the prosecutrix informed him that she had been raped. One is left wondering as to what the incident was about. P.W.5 does not say that the prosecutrix informed him that she had been raped. One is left wondering as to what the incident was about. Also some doubts are raised that when as per the victim, people had gathered on alarm, then why no other or more independent witnesses have come forward to give evidence. Added to this P.W.5 says that at that time no body was there. 19. Another important circumstance that has come from the defence witnesses including those who also happened to be cousin brothers of the father of the informant victim, is that apparently the father of the victim had gone with two others with a marriage proposal for his daughter or the victim to the appellant's father. But the marriage did not take place. Counsel for the appellant then says that since it has also come that the father of the girl was involved in a dacoity case hence, marriage proposal was refused. Counsel thus says that there was thus grouse or animosity, on the part of the victim's family towards the appellant, and hence, case was lodged against him. So these are the circumstances of the case. 20. Now the medical circumstance has to be taken up. Doctor has not mentioned penetration. Counsel for the appellant says that as per the earlier law before 2013, penetration was a sine qua non. So in the absence of penetration rape is not made out. The reason for non-penetration has been given by the trial court as the hymen being thick and fleshy. Counsel for the appellant submits this is a reasoning given by the trial court and not the doctor who examined the girl. Unless, the doctor says so it would be improper to find reasons for non penetration by the trial court. It is also argued and seen from the medical records that there were no other bodily injuries on the body of the prosecutrix. The case here is distinguished from the cases relied upon by learned A.P.P., because delay has not been properly or sufficiently explained. So even section 114 A Evidence Act, may not apply. 21. Thus, having gone through the arguments, evidence and records of the case, in the facts and circumstances, many issues have been raised that create some doubts regarding the allegations against the appellant. So even section 114 A Evidence Act, may not apply. 21. Thus, having gone through the arguments, evidence and records of the case, in the facts and circumstances, many issues have been raised that create some doubts regarding the allegations against the appellant. Hence, giving him the benefit of doubt, he is acquitted of the charges u/s 376 of the I.P.C. Accordingly, the judgment of conviction and order of sentence dated 31.05.2003 passed by learned court below is set aside and appeal is allowed. Appellant is on bail, he is discharged from the liabilities of his bail bond. Appeal allowed