JUDGMENT : KAILASH PRASAD DEO, J. 1. The instant Criminal Appeal has been preferred against the judgment of conviction and order of sentence, both dated 24.01.2004, passed by learned Additional District and Sessions Judge, Fast Track Court No. 1, Gumla, in S.T. No. 292/1995, whereby the sole appellant Lakhan Baraik has been convicted by the learned Trial Court for offence punishable under Section 417 of the Indian Penal Code but has been acquitted for offence under Sections 364, 376 of the Indian Penal Code and awarded rigorous imprisonment for one year and fine of Rs. 500/- and in case of default of payment of fine, the appellant shall undergo simple imprisonment for one month. 2. The prosecution case is based upon the complaint petition filed by the complainant- informant, Radha Devi against the appellant, Lakhan Baraik and his wife Rita Devi, before the Chief Judicial Magistrate, Gumla on 16.02.1994, alleging that, on date of occurrence i.e. 28.01.1994. The informant has stated in her complaint petition, that she had a love affair with the appellant, Lakhan Baraik and from their relationship, a child has been born, who is presently aged about four years. The complainant has further alleged that few years ago, Lakhan Baraik wanted to marry with Rita Devi, which was protested by her (complainant) but taking under confidence, the marriage was solemnize between Lakhan Baraik and Rita Devi, as Lakhan Baraik has given her (complainant) assurance that he will solemnize marriage subsequently with the complainant (Radha Devi). The complainant has further stated that recently, when the complainant asked Lakhan Baraik to solemnize marriage with her, Rita Devi (wife of the appellant) started, abusing her. The complainant has further alleged that, she has also demanded for maintenance of her son, which was denied under the threat of Rita Devi (accused no. 2), rather they used to say that they will kill her son, so that they will not have to pay the maintenance. The complainant has further stated that on the alleged day i.e. on 28.01.1994 at 10.00 a.m. the appellant along with his wife (Rita Devi) went to the house of complainant and tried to snatch the child (Durgesh Baraik) for killing him and both the accused persons have started taking the child, on a vehicle to an unknown destination. The complainant has further stated that on the alleged day i.e. on 28.01.1994 at 10.00 a.m. the appellant along with his wife (Rita Devi) went to the house of complainant and tried to snatch the child (Durgesh Baraik) for killing him and both the accused persons have started taking the child, on a vehicle to an unknown destination. The complainant tried to save the child but none of them left the child and thereafter the villagers were informed, who rescued the child, and on their direction the complaint case was filed on 16.02.1994. 3. The statement of the complainant was recorded under Section 156 (3) Cr.P.C. before the Officer-in-Charge, Palkot police station, where the F.I.R. was lodged as Palkot P.S. Case No. 33 of 1994 dated 20.05.1994 under Sections 420, 364 and 376 of the Indian Penal Code, and after investigation, the police submitted charge-sheet vide no. 30 dated 31.07.1994 against both the accused persons Lakhan Baraik and Rita Devi under Sections 420, 364 and 376 of the Indian Penal Code. 4. The cognizance of the offence has been taken vide order dated 06.09.1994 and the case has been committed to the court of Sessions, vide order dated 20.09.1995 where the charge has been framed under Sections 364, 420 and 376 of the Indian Penal Code, to which the accused persons pleaded innocence and thus both are put under trial. 5. That prosecution has examined three witness and has not exhibited any documentary evidence, Radha Devi, being the complainant of the case has been examined as PW-1, Laxman Baraik (brother of the victim) has been examined as PW-2, Paltu Baraik (uncle of the victim) has been examined as PW-3. 6. After closure of the prosecution evidence, the statement of the appellant has been recorded under Section 313 Cr.P.C. on 18.08.2003 and thereafter the defence has also examined three witnesses. Bindeshwar Singh as DW-1, Rajendra Jha as DW-2 and Birsai Oraon as DW-3. 7. Fardbeyan of Palkot P.S. Case No. 8/94 has been marked as Exhibit-A, signature of Bishambher Jha on formal F.I.R. has been marked as Exhibit-B, Injury report of Lakhan Baraik has been marked as Exhibit-C, handicap certificate of Lakhan Baraik has been marked as Exhibit-D and prescriptions of Lakhan Baraik have been marked as Exhibit-E to E/2. 8. 7. Fardbeyan of Palkot P.S. Case No. 8/94 has been marked as Exhibit-A, signature of Bishambher Jha on formal F.I.R. has been marked as Exhibit-B, Injury report of Lakhan Baraik has been marked as Exhibit-C, handicap certificate of Lakhan Baraik has been marked as Exhibit-D and prescriptions of Lakhan Baraik have been marked as Exhibit-E to E/2. 8. After hearing both the parties, the learned Trial Court passed the impugned judgment, whereby the learned Trial Court convicted the appellant under Section 417 of the Indian Penal Code and awarded rigorous imprisonment for one year with a fine of Rs. Five hundred and in case of default of fine, further simple imprisonment for one month but acquitted him from charge under Sections 376/364 of the Indian Penal Code and acquitted accused Rita Devi from all charges under Sections 364/376/417 of the Indian Penal Code by the impugned judgment. 9. Learned counsel for the appellant has submitted that no case under Section 417 of the Indian Penal Code is made out in the present case as the informant-complainant PW-1 has admitted herself in paragraph 1 of her examination-in-chief, that the appellant, Lakhan Baraik has subsequently solemnized marriage with her at Palkot Mandir and she has further stated that Lakhan Baraik has solmenised second marriage with Rita Devi. Learned counsel for the appellant has submitted that considering the deposition of the victim (PW-1) at paragraph 1, no case under Section 417 of the Indian Penal code is made out. Learned counsel for the appellant has further submitted that in this case, the complaint, which was the basis of the First Information Report has not been exhibited neither the parents of the complainant has been examined nor his child, as alleged by the complainant, born from the physical relationship of the complainant and the appellant, Lakhan Baraik. Learned counsel for the appellant has further submitted, that the Investigating Officer has not been examined nor any medical evidence has also been brought on record to establish, that the allegation of birth of her son, was due to the physical relationship of the complainant and the appellant. Further, no any medical evidence has also been brought on record to prove that the child is the son of the appellant. 10. Further, no any medical evidence has also been brought on record to prove that the child is the son of the appellant. 10. Learned counsel for the appellant has further submitted that the case has been filed after a great delay, as per the complaint case itself, when the child became aged about four years case has been filed. Such delay is fatal for the prosecution case, so far conviction under Section 417 of the Indian Penal Code is made out. Learned counsel for the appellant has drawn the attention of this court towards complainant case, where it is alleged that from the marriage of the appellant, Lakhan Baraik with Rita Devi (co-accused who has been acquitted by the learned Trial Court), they have children and as such keeping mum for a long period by the complainant-informant is fatal for the prosecution case. Learned counsel for the appellant has prayed that the appellant may be acquitted of the conviction under Section 417 of the Indian Penal Code. 11. Learned counsel for the State, Mr. Sanjay Kr. Pandey has vehemently argued the case and supported the impugned judgment of conviction, on the ground that it is a case, where a tribal lady has been misguided, cheated by this appellant and has established physical relationship with her and as such, learned Trial Court has rightly convicted the appellant. 12. After hearing the learned counsel for the appellant, Mr. Mohit Prakash assisted by Mrs. Vani, Advocates and learned counsel for the State, Mr. Sanjay Kr. Pandey, Additional Public Prosecutor, and on perusal of the complaint petition, deposition of all three prosecution witnesses, the defence witnesses as well as the defence document exhibited, this court is of the opinion that from perusal of the paragraph 1 of PW-1, complainant, she has admitted that Lakhan Baraik has solemnized marriage with her at Palkot Mandir and subsequently, Lakhan Baraik solemnized marriage with Rita Devi, which was his second marriage, no case under Section 417 of the Indian Penal Code is made out against the appellant. The child alleged to be born, from such physical relationship, has not been examined in the court nor the prosecution has examined the parents of the complainant before whom, the appellant has admitted that he will solemnize marriage with the complainant. The child alleged to be born, from such physical relationship, has not been examined in the court nor the prosecution has examined the parents of the complainant before whom, the appellant has admitted that he will solemnize marriage with the complainant. Nor any medical evidence or material has been brought on record to prove that son of the complainant is borned from physical relationship of the complainant and appellant, Lakhan Baraik. The non-examination of the Investigating Officer has caused serious prejudice to the appellant, as the appellant could not draw the attention of this court with respect to Exhibits A, B and C. The case filed by the appellant, Lakhan Baraik against the complainant, Radha Devi, on 25.01.1994, prior to the lodging of the complaint case, which was lodged on 16.02.1994. 13. Thus, this court is of the opinion, on the discussions made above that the appellant has been wrongly convicted by the learned Trial Court under Section 417 of the Indian Penal Code. Under such background, this court is of considered view that benefit of doubt be granted in favour of the appellant. 14. In the result, the impugned judgment of conviction and order of sentence, both dated 24.01.2004, passed by learned Additional District and Sessions Judge, Fast Track Court No. 1, Gumla, in S.T. No. 292/1995 in connection with Palkot P.S. Case No. 33 of 1994, consequent to G.R. No. 336 of 1994 is set aside and the appellant is acquitted of the offence committed under section 417 of the Indian Penal Code. 15. The appellant, who is on bail is discharged from liability of his bail bond. 16. In the result, the appeal is allowed. 17. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.