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2017 DIGILAW 671 (BOM)

Lotan Budha Chaudhari v. State of Maharashtra

2017-04-04

V.L.ACHLIYA

body2017
JUDGMENT : V.L. ACHLIYA, J. 1. This appeal is directed against the Judgment & Order dt. 10.12.2001 passed by the learned Ad-hoc Additional Sessions Judge, Dhule in Sessions Case No. 71 of 2001, whereby the appellant has been convicted for the offence punishable u/s. 376 and 506 of the Indian Penal Code. For committing offence u/s. 376 of the IPC, the appellant-accused was sentenced to suffer rigorous imprisonment for 10 years and pay fine of Rs. 2,000/-, in default, to undergo rigorous imprisonment for six months. For committing offence u/s. 506 of the IPC, he has been sentenced to suffer rigorous imprisonment for 1 year and pay fine of Rs. 2,000/-, in default, to undergo rigorous imprisonment for six months. Both the sentences were ordered to be run concurrently. Being aggrieved and dissatisfied with the conviction and the sentence imposed, the appellant has preferred this appeal. 2. Before adverting to appreciate the submissions advanced on behalf of the respective parties, it is necessary to consider in brief the facts leading to prosecution of the appellant. 3. On 16.06.2001, the prosecutrix visited the Police Station, Nijampur, Dist. Dhule and lodged complaint to the effect that the appellant-accused has repeatedly committed forcible sexual intercourse and made her pregnant. In the complaint filed, the complainant has alleged that the accused used to visit her house regularly for chitchatting with her father. The appellant-accused used to take his bullocks for grazing in the nearby forest area. Since prosecutrix's father had two bullocks, he asked the accused to take prosecutrix with him for grazing his bullocks in the forest area. Thereafter, the prosecutrix used to accompany accused with her bullocks to the nearby forest area. One day, while the bullocks were grazing in the forest area, the accused caught hold of her hands and pulled her close to him and asked her to allow him to have sexual intercourse with her. When the complainant asked him not to touch her, the accused gave her threats and forcibly laid her on the ground, pulled her skirt in the upward direction, removed her nicker and forcibly committed sexual intercourse with her. After committing sexual intercourse, the accused told her not to disclose about the incident to anybody from her family as well as the persons in the village and if she discloses the same, he will kill her. After committing sexual intercourse, the accused told her not to disclose about the incident to anybody from her family as well as the persons in the village and if she discloses the same, he will kill her. Even after the first incident of rape, the accused repeated the act of forcible sexual intercourse for 3-4 times. Because of sexual intercourse with her by accused, she developed pregnancy. Due to stoppage of menstruation cycle and physical changes noticed in her body, the complainant was taken to Doctor. On examination, Doctor disclosed that she was carrying pregnancy. On inquiry made with her parents, she disclosed that she was carrying pregnancy from accused and further disclosed the acts committed by the accused. After said disclosure, the father of the prosecutrix went to panchas in the village and reported about the act committed by accused with his daughter. Immediately thereafter, the meeting of panchas was called, wherein the accused was also invited. In the meeting, the accused admitted that prosecutrix was carrying pregnancy from him. Thereafter, the prosecutrix visited police station and lodged complaint vide Exh. 33. Subhash Nandre (PW 5) the Head Constable, who was then Station Officer on duty, recorded her complaint and registered the offence vide C.R. No. 46/2001 with Police Station, Nijampur. He handed over the investigation to the Head Constable Sattar Shaikh (PW 6) on 17.06.2001. PW6 conducted the investigation. He visited the spot of incident and made panchanama. The prosecutrix was referred for medical examination to Civil Hospital at Dhule. Thereafter, the accused was arrested. The accused was also referred for medical examination. During the course of investigation, the statement of prosecutrix and few other persons came to be recorded. The muddemal property was sent to Chemical Analyzer (CA) for analysis. On conclusion of the investigation, the charge-sheet came to be filed in the court of JMFC, Sakri. 4. In due course, the case was committed to Sessions Court, Dhule. On 17.09.2001, charge under Sections 376 and 506 of the Indian Penal Code came to be framed against the accused. The accused pleaded not guilty and claimed to be tried. Hence, case proceeded against the appellant. In order to bring home the charges, prosecution examined six witnesses and further proved certain documents. The accused has not entered into the defence. On 17.09.2001, charge under Sections 376 and 506 of the Indian Penal Code came to be framed against the accused. The accused pleaded not guilty and claimed to be tried. Hence, case proceeded against the appellant. In order to bring home the charges, prosecution examined six witnesses and further proved certain documents. The accused has not entered into the defence. The defence of the accused appears to be of total denial and false implication at the instance of the family members of the prosecutrix. On conclusion of the trial, the ld. Sessions Judge convicted the appellant for offences u/s. 376 & 506 of the IPC and sentenced as stated above. 5. Mr. Patil, learned counsel for the appellant assailed the reasons and findings recorded by the trial Court with contention that the same are perverse and based upon improper appreciation of evidence. By referring the testimony of prosecutrix (PW 2), the learned counsel has pointed out that, in the cross-examination the prosecutrix has admitted that amount of Rs. 10,000/- was demanded from the accused for not initiating prosecution against him and as same was not paid, the complaint was lodged against him. Learned counsel further argued that the complaint was filed after due deliberation amongst the family members of the prosecutrix after the period of more than 7 to 8 months after the alleged incident and delay has not been explained by prosecution. He further submits that, the testimony of the prosecutrix inspires no confidence and cannot be treated as a truthful so as to base the conviction. By referring the report of medical examination of the prosecutrix, learned counsel submits that the prosecutrix was found to be habituated to sexual intercourse. No marks of forcible sexual intercourse were noticed on her body. No evidence adduced to show the prosecutrix was minor & below sixteen years of age. The evidence on record is sufficient to draw inference that the sexual intercourse was with consent and no case of forcible sexual intercourse proved against the appellant. He, therefore, urged to acquit the appellant-accused. 6. On the other hand, learned APP has supported the Judgment & Order passed by the trial Court. He submits that the reasons and findings recorded by the trial Court are fully in consonance with the evidence on record and there is absolutely no perversity in the impugned Judgment & Order. 7. He, therefore, urged to acquit the appellant-accused. 6. On the other hand, learned APP has supported the Judgment & Order passed by the trial Court. He submits that the reasons and findings recorded by the trial Court are fully in consonance with the evidence on record and there is absolutely no perversity in the impugned Judgment & Order. 7. In order to appreciate the submissions advanced, I have carefully perused the Record & Proceedings. 8. Prosecution has examined the prosecutrix as PW2, who has deposed vide Exh. 32. She has deposed as per the complaint lodged vide Exh. 33 on 16.06.2001. She deposed that, accused used to visit her house for chit-chatting with her father. He used to take his bullocks for grazing in the nearby forest area. Her father asked her to accompany accused for gazing their bullocks. She therefore used to go along with accused in the nearby forest area for grazing the bullocks. She has deposed that, on the day of the incident, when bullocks were grazing in the forest area, the accused forcibly made her to lie on the ground and committed forcible sexual intercourse with her. After committing sexual intercourse, the accused threatened her and said that if she discloses the incident to anybody from her house or people in village, he would commit her murder. Due to threat given by the accused, she has not disclosed the incident to her family members or anybody from the village. She further deposed that, as her aunt noticed physical changes in her body, she told the same to her mother and thereafter she was taken to Doctor. After examination, the Doctor disclosed that she was carrying pregnancy. Thereafter, her aunt and mother inquired about the father of the child in her womb and thereupon she disclosed the name of accused as person responsible to cause pregnancy to her. She further deposed that, her parents called the meeting of panchas and in the meeting the accused admitted about sexual intercourse with her and also accepted to be the father of the child in her womb. She further deposed that, after the meeting, complaint came to be lodged vide Exh. 33. She further deposed that, subsequent to filing of complaint she gave birth to a female child. 9. In the cross-examination, she admitted that while lodging complaint, her parents, aunt and other persons from the village were accompanied her. She further deposed that, after the meeting, complaint came to be lodged vide Exh. 33. She further deposed that, subsequent to filing of complaint she gave birth to a female child. 9. In the cross-examination, she admitted that while lodging complaint, her parents, aunt and other persons from the village were accompanied her. She further admitted that the decision to lodge the complaint was taken in the village and, thereafter, they went to Nijampur Police Station. She further admitted that, what is to be stated in complaint to be lodged was decided in the village. She further deposed that, she was not personally present in the meeting which was called by the panchas. She has deposed that her father told her as to what was transpired in that meeting. She has admitted in her cross-examination that her father and uncle asked the accused in the meeting to pay Rs. 10,000/- & as the accused did not pay that amount in spite of repeated demand made for the period of two three months, panchas asked her father to file complaint against the accused. She further admitted that, while lodging complaint, the accused was also present in the Police Station. She denied suggestion that, she conceived pregnancy from one Rahul Ahire. 10. In order to corroborate the testimony of prosecutrix, the prosecution has examined Punabai (PW 3) the aunt of the prosecutrix. She has deposed that the prosecutrix used to accompany the accused to graze the bullocks in the nearby forest area. She has deposed that, as she noticed increase in the size of stomach of the complainant, she brought this fact to the notice of her mother and thereafter they took her to a Doctor. On examination, the Doctor told them that prosecutrix was carrying pregnancy of seven months and, therefore, they brought her to their house and then apprised her father about the same. 11. In order to provide corroboration to the testimony of prosecutrix, the prosecution has examined Gokul (PW 4) the person from the village, who was present in the meeting called by the panchas. He has deposed that, he was present in the meeting which called by the panchas. Besides him, father of the complainant and some people from the village & the Police Patil of village were present in that meeting. He has deposed that, he was present in the meeting which called by the panchas. Besides him, father of the complainant and some people from the village & the Police Patil of village were present in that meeting. In the meeting the father of the prosecutrix informed them that his daughter became pregnant from the accused. The accused, who was present in the meeting, admitted that the complainant-prosecutrix got pregnant from him and left the matter to be decided by the panchas. He denied suggestion that, the uncle of the prosecutrix demanded Rs. 10,000/- from the accused and as accused refused to pay the amount false complaint was lodged against the accused. 12. Besides the above mentioned four witnesses, the prosecution has examined Subhash Nandre (PW 5), the Head Constable, who recorded the complaint of prosecutrix and registered the offence and Head Constable - Sattar Shaikh (PW 6) who conducted the investigation. Subhash Nandre (PW 5) has deposed that, on 16.06.2001, the prosecutrix visited the Police Station and lodged report vide Exh. 33. On the basis of her complaint, he registered offence u/s. 376 of the IPC vide Crime No. 46/2001, and handed over the further investigation to Head Constable - Sattar Shaikh (PW 6). In cross-examination, PW5 has admitted that the father and uncle of the complainant - prosecutrix were accompanied her when she visited the Police Station to lodge report. He deposed that, accused had not appeared before him at the time of lodging of complaint by prosecutrix nor told him that the complainant & her relatives demanded Rs. 10,000/- and when he refused, they have come to lodge report. He deposed that, the prosecutrix has not stated before him that accused removed the pant and caught hold her till discharge of semen in her vagina. She has also not stated before him that since 5-6 months accused was having sexual intercourse with her. 13. Head Constable - Sattar Shaikh (PW 6) has deposed that, on 17.06.2001 he received the papers of investigation and, thereafter, recorded spot panchanama. On 18.06.2001, he recorded the statements of some of witnesses and referred the prosecutrix for medical examination and later on arrested the accused from Nijampur. He seized his clothes and also referred him for medical examination. Further investigation was handed over to API Naik, who filed charge-sheet in the matter. On 18.06.2001, he recorded the statements of some of witnesses and referred the prosecutrix for medical examination and later on arrested the accused from Nijampur. He seized his clothes and also referred him for medical examination. Further investigation was handed over to API Naik, who filed charge-sheet in the matter. In the cross-examination, PW-6 has admitted that he has not conducted the investigation from the angle that the prosecutrix might have become pregnant from person other than the accused. He admitted that, as per the report received from Civil Hospital, the complainant was reported to be pregnant with pregnancy of 30-32 weeks. He admitted that, he has not taken steps to ascertain the paternity of the child given birth by prosecutrix through DNA test. 14. Besides the oral evidence, the prosecution has placed on record certain documentary evidence in respect of determination of age of the prosecutrix, the report of medical examination of the prosecutrix and accused and CA reports. It appears that the reports of medical examination, age and other documents have been admitted in evidence by the consent of the defence counsel. As per notice given u/s. 294 of Cr.P.C. vide Exh. 9, the defence Lawyer has given 'No Objection' to admit Spot Panchanama (Exh. 25), the Age Certificate of complainant/prosecutrix (Exh. 15), the Medical Certificate of examination of prosecutrix (Exh. 16), reports of Medical Examination of accused (Exh. 17 and 18) and reports issued by Chemical Analyzer (Exh. 22 and 23). 15. As discussed above, the prosecution has approached with a case that, taking disadvantage of the prosecutrix being alone, the accused has committed forcible sexual intercourse with her and thereafter repeated the same act 5-6 times, which has resulted into causing pregnancy to the prosecutrix. Subsequent to lodging of complaint, she gave birth to a female child. The accused has taken two fold defence. The accused has taken the defence that he has been falsely implicated in the case at the behest of the uncle of the prosecutrix and the pregnancy caused to the prosecutrix from other person tried to be foisted upon him. In alternative, the appellant-accused has taken defence that even if we go by the case of prosecution, still no offence u/s. 376 of IPC made out as it can be inferred that sexual intercourse with the prosecutrix was voluntary & consensual. 16. In alternative, the appellant-accused has taken defence that even if we go by the case of prosecution, still no offence u/s. 376 of IPC made out as it can be inferred that sexual intercourse with the prosecutrix was voluntary & consensual. 16. Thus, in the light of prosecution case and defence of the accused, the crucial question posed for my consideration is whether the prosecution has proved its case beyond reasonable doubt to establish that the appellant-accused committed forcible sexual intercourse with prosecutrix. The fact is not in dispute that the prosecutrix was found to be carrying pregnancy of 30-32 weeks at the time of her medical examination on 18.06.2001. The fact is also not in dispute that she gave birth to a female child after lodging complaint on 16.06.2001. It is an admitted position that during the course of investigation no efforts were made to obtain the sample for DNA test to ascertain the paternity of the child given birth by the prosecutrix. The entire case of the prosecution based upon the testimony of prosecutrix. The legal position is quite set at rest by the catena of decisions of the Apex Court that if testimony of the prosecutrix inspires full confidence, then it can form basis to convict the person. If for some reason the Court finds it difficult to place implicit reliance on sole testimony of prosecutrix then it may look for other evidence which may lend assurance to her testimony. Thus, to say in brief, if the testimony of the prosecutrix found to be worthy of credence and reliable, then it requires no corroboration. In appropriate case, the court may convict the accused on the sole testimony of the prosecutrix. The nature of evidence requires to lend assurance to the testimony of the prosecutrix necessarily depend on the facts & circumstances of each case. In the case of State of Maharashtra v. Chandraprakash Kewalchand Jain reported in (1990) 1 SCC 550 , has observed in para 16 as under : "16. A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage: "It is only in the rarest of rare cases if the court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary." With respect, the law is not correctly stated. If we may say so, it is just the reverse. Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation." 17. Keeping in mind the above referred broad principles to be followed in appreciating the evidence of the prosecutrix in rape case, I proceed to analyze the evidence of the prosecutrix. If we consider the case of the prosecution then accused was subjected to face prosecution with an allegation that he has repeatedly committed rape on a girl aged 17 years which leads to causing pregnancy to her. It is further case of the prosecution that, the prosecutrix was repeatedly raped by the accused by putting her under fear of causing serious bodily hurt to her as well as her family. Because of threat given by the accused, the prosecutrix has not disclosed the act of the accused to anybody from her family till her pregnancy was detected by her family members. In nutshell, it is the case of the prosecution that the accused committed sexual intercourse with the prosecutrix against her will & consent. It is nowhere the case of the prosecution that, the consent of the prosecutrix was immaterial. This is evident from the charge framed against the accused wherein nowhere it is stated that the accused committed rape on minor girl. On the contrary it is mentioned that rape was committed on prosecutrix who was aged 17 years. It is nowhere the case of the prosecution that, the consent of the prosecutrix was immaterial. This is evident from the charge framed against the accused wherein nowhere it is stated that the accused committed rape on minor girl. On the contrary it is mentioned that rape was committed on prosecutrix who was aged 17 years. Thus, the analysis of the evidence is required to be made from view point as to whether the sexual intercourse committed by the accused was against her consent. 18. In the case of Uday v. State of Karnataka reported in 2003(4) SCC 46 , the Apex Court has observed that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse was voluntary or was given under a threat or misconception of fact. In para 21, the court has observed as under : "21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them." 19. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them." 19. In the background of legal position noted above, the evidence of the prosecutrix needs to be analyzed to arrive at a conclusion whether the sexual intercourse with prosecutrix was against her consent or it was consensual & evidence as adduced by prosecution is such to prove the guilt of accused beyond reasonable doubt. As discussed, the prosecutrix has deposed that once she had gone with the accused for grazing the bullocks in the nearby forest area of the village, the accused forcibly laid her on the ground, made her naked and accused too removed his pant and committed sexual intercourse with her. After committing sexual intercourse, the accused asked her not to disclose the incident to anyone from family otherwise he will kill her family members and she would also not find herself alive. After the said incident, the accused continued the same act for 5-6 times and each time she was caused threat not to disclose the incident. She has deposed that during the Nagdiwali, her menstruation cycle was stopped and there was a physiological changes in her body and size of her stomach was increased. Due to this reason, her aunt & mother took her to Doctor for medical examination. On medical examination, the Doctor disclosed about the pregnancy which she was carrying. After the disclosure of fact that she was carrying pregnancy, on enquiry as to father of the child in her womb made by her aunt & mother, she disclosed the name of the accused as a father of child in her womb. Subsequent thereto, her parents reported the matter to panchas. In the meeting called by the panchas, the accused admitted that he is the father of child in the womb of prosecutrix. Subsequent thereto, prosecutrix visited the police station and lodged report on 16.06.2001. Thus, the case of the prosecution is that accused committed the sexual intercourse against wishes & consent of the prosecutrix and by putting her under fear of causing bodily harm to her as well as her family members. 20. Subsequent thereto, prosecutrix visited the police station and lodged report on 16.06.2001. Thus, the case of the prosecution is that accused committed the sexual intercourse against wishes & consent of the prosecutrix and by putting her under fear of causing bodily harm to her as well as her family members. 20. If we look into the evidence adduced by the prosecution and the conviction awarded by the trial Court then the conviction is solely based upon the testimony of the prosecutrix. Therefore, the question poses for consideration is whether the evidence of prosecutrix is worthy of credence and reliable and requires no corroboration. In my view, in the light of the facts of the prosecution case and overall evidence on record, it is unsafe to base the conviction on sole testimony of the prosecutrix. In the light of the facts of the case and evidence on record, it is not desirable to place implicit reliance on her testimony. In order to lend assurance to her testimony, it is necessary to seek corroboration to her testimony. In the instant case, there was a delay of about 7-8 months in lodging report. Although it is the say of prosecution that the delay has been properly explained, I am of the view that there is no satisfactory explanation offered to explain the delay of 7-8 months in lodging the FIR. It is the contention of the prosecution that, as the accused has caused threat to prosecutrix she has not disclosed the facts to her parents and therefore there was a delay in lodging the report. It is pertinent to note that the complaint was lodged on 16.06.2001. Prosecutrix has deposed, that till previous Diwali there was no stoppage of menstruation cycle. Around the time of Nagdiwali, her menstruation cycle was stopped. So also, bodily changes were occurred & the size of her stomach was increased. Due to this reason, her aunt & mother took her to Doctor. On examination, the Doctor disclosed that she was carrying pregnancy. Immediately thereafter, the fact was disclosed to her father. Thereafter, the fact was reported to panchas and meeting was called. In the meeting the panchas advised to file complaint. Thereafter, her father, uncle & other persons discussed the matter in village and later on she came to Nijampur with her parents, uncle & Police Patil of the village & lodged complaint. Thereafter, the fact was reported to panchas and meeting was called. In the meeting the panchas advised to file complaint. Thereafter, her father, uncle & other persons discussed the matter in village and later on she came to Nijampur with her parents, uncle & Police Patil of the village & lodged complaint. Thus, if we consider the testimony of the prosecutrix that her menstruation period was stopped sometime during Nagdiwali and thereafter she was taken to Doctor for examination and on examination Doctor disclosed that she was carrying pregnancy and on enquiry by her aunt & mother, she disclosed the name of the accused responsible for causing pregnancy, then it can be safely inferred that the fact regarding the alleged commission of offence was revealed in the month of November-2000. The complaint was lodged on 16.06.2001 i.e. after the period of 6-7 months after the alleged disclosure made by the prosecutrix as well as the meeting of the panchas. 21. It is pertinent to note that in the cross-examination the prosecutrix has deposed that the complaint was lodged as the accused has failed to pay Rs. 10,000/-. She has deposed that for the period of 2-3 months the accused was asked to pay the amount & as accused failed to pay the amount, the complaint was lodged. She has further admitted that at the time of lodging complaint the accused was present in the police station. She has denied the suggestion that accused was telling the police officer that the complainant & her parents were asking him to pay Rs. 10,000/-. Thus, it can be inferred that the complaint was lodged 6 to 7 months after the disclosure of incident by prosecutrix only for the reason that accused failed to pay Rs. 10,000/- to prosecutrix. In this background, it cannot be said that the prosecution has properly explained the delay of 6 to 7 months in lodging the report. 22. In the instant case the delay in lodging report acquires significance for the reason that there is an admission on the part of the prosecutrix that the complaint was lodged after due discussion & deliberation held in the village. She has deposed, that before visiting Police Station it was discussed in the village as to what complaint to be lodged by her. She has deposed, that before visiting Police Station it was discussed in the village as to what complaint to be lodged by her. After discussing & deciding in the village as to what complaint to be lodged, she along with her parents, uncle, aunt & Police Patil of the village came to Nijampur Police Station and lodged the complaint. In this background, it can safely infer that the complaint was lodged after the period of 6 to 7 months of disclosure of incident by prosecutrix as the accused failed to pay Rs. 10,000/- to prosecutrix and that too after due discussion & deliberations held in the village immediately prior to lodging of complaint. In this context, the learned counsel for the appellant has rightly placed reliance on the decision of the Apex Court in the case of Vijayan v. State of Kerala reported in (2008) 14 SCC 763, wherein in the facts of the case more or less similar to the facts of the present case held that the prosecutrix having waited for 7 months for filing FIR it would be unsafe to convict appellant only on the basis of sole oral testimony of the prosecutrix. In para 5 of the Judgment, the court has observed as under : "5. The present case wholly depends upon the testimony of the prosecutrix. The incident in the present case took place seven months prior to the date of lodging the complaint as a realisation dawned upon her that she has been subjected to rape by the appellant-accused. No complaint or grievance was made either to the police or the parents prior thereto. The explanation for delay in lodging the FIR is that the appellant-accused promised her to marry therefore the FIR was not filed. In cases where the sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially when the prosecutrix could venture to wait for seven months or filing the FIR for rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident, there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident, there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. If the prosecutrix has willingly submitted herself to sexual intercourse and waited for seven months for filing the FIR it will be very hazardous to convict on such sole oral testimony. Moreover, on DNA test was conducted to find out whether the child was born out of the said incident of rape and that the appellant-accused was responsible for the said child. In the face of lack of any other evidence, it is unsafe to convict the accused. Therefore, we are of the opinion that the view taken by the trial court and the learned Single Judge of the High Court in convicting the appellant-accused under Section 376 IPC cannot be sustained. Consequently, we set aside the judgment and order of the trial court as also of the High Court and quash the conviction and sentence of the appellant-accused under Section 376 IPC. The accused may be released forthwith from custody if not required in any other case." 23. In the instant case, except the oral testimony of the prosecutrix there is no corroborative evidence to lend assurance to rely upon the oral testimony of prosecutrix. In the cross-examination, the Investigating Officer has admitted that no steps were taken to obtain the DNA sample to ascertain as to whether the accused is a biological father of the child given birth by the prosecutrix. The medical evidence reflects that the prosecutrix was habituated to sexual intercourse. No marks of violence were noticed in her medical examination. It is nowhere the case of the prosecution that the prosecutrix has offered resistance to act of accused and in the course of such resistance the prosecutrix has sustained injuries. If the prosecutrix would have lodged complaint soon after the incident, there would have some supporting evidence in the nature of medical report showing injury on her body so as to show the sign of rape. Delay in lodging report has caused prejudice to accused. In absence of any evidence other than the sole testimony of the prosecutrix to lend assurance to truthfulness of her testimony, it is unsafe to convict the appellant for such grave offence of rape. 24. Delay in lodging report has caused prejudice to accused. In absence of any evidence other than the sole testimony of the prosecutrix to lend assurance to truthfulness of her testimony, it is unsafe to convict the appellant for such grave offence of rape. 24. It is further pertinent to note that there is no evidence as such to show that the accused was potent and capable of committing sexual intercourse. Although the requisition letter sent to Medical Officer reflects that the opinion was sought as to whether the accused was capable of committing sexual intercourse. The Medical Officer though examined the accused has not given any opinion as to his capacity to perform sexual intercourse. The report of chemical analysis provides no assistance to case of prosecution. No DNA test was conducted to ascertain the paternity of child to whom prosecutrix gave birth after lodging complaint. Thus, there is absolutely no corroboration to testimony of the prosecutrix so as to lend assurance that her sole testimony can be relied to base the conviction. In this context, the learned counsel for the appellant has referred & relied on the decision of the Apex Court in the case of Kaini Rajan v. State of Kerala reported in (2013) 9 SCC 113 wherein the Apex Court has held that the version of the victim in rape case commands great respect & acceptability but if there are circumstances, which cast some doubt in the mind of the court as to veracity of the victims evidence, then it is not safe to rely on the uncorroborated version of the victim of rape. 25. In view of the discussion made in the foregoing paras and conclusions arrived at, I am of the view that the reasons & findings recorded by the trial Court are perverse and not in consonance with the evidence on record as well as settled position in law. The reasons & findings recorded by the trial Court are based upon improper appreciation of evidence. The sole testimony of the prosecutrix cannot be treated as basis to convict the accused. In absence of corroboration to testimony of prosecutrix, it is highly unsafe to convict the accused. Prosecution has failed to prove its case beyond reasonable doubt. In absence of cogent, convincing & reliable evidence to prove the guilt of accused beyond reasonable doubt, the appellant-accused deserves to be given benefit of doubt. In absence of corroboration to testimony of prosecutrix, it is highly unsafe to convict the accused. Prosecution has failed to prove its case beyond reasonable doubt. In absence of cogent, convincing & reliable evidence to prove the guilt of accused beyond reasonable doubt, the appellant-accused deserves to be given benefit of doubt. I am, therefore, inclined to allow the appeal & acquit the accused by giving him benefit of doubt. In the result, following order is passed. ORDER "(I) Criminal Appeal No. 6/2002 is allowed. The Judgment and Order dt. 10.12.2001 passed by the learned Ad-hoc Additional Sessions Judge, Dhule, convicting the appellant u/s. 376 & 506 of IPC in Sessions Case No. 71 of 2001, is set aside. The appellant-accused stands acquitted of offence u/s. 376 & 506 of the IPC. (III) In case the fine amount if not already paid to the victim as compensation, then same shall be refunded to the appellant."