JUDGMENT : Heard the parties. 2. This appeal is directed against the judgment of conviction dated 29.11.2005 and order of sentence dated 01.12.2005 passed by the learned 2nd Additional Sessions Judge, Gumla in Sessions Trial No. 330 of 2004, whereby and whereunder, the appellant has been held guilty for the offence punishable under Section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years with fine. 3. The case of the prosecution as unfolded in the fardbeyan of the informant-prosecutrix is that the informant-prosecutrix was aged about 17 years on 18.6.2004 on the date of recording her fardbeyan by the police. It is alleged by the informant-prosecutrix that on 24.12.2003 when the prosecutrix was returning with her friends, Anima Minz(P.W.1) and Suchita Ekka(P.W.3) from Bhikhampur church at about 12 O’clock at night, on the way the appellant-accused-Bimal Minz forcibly caught hold of the prosecutrix and took her to his old house at Govindpur and forcibly committed rape upon her after gagging her mouth with cloth, as a result of which, she became pregnant with two months. The appellant accused also threatened the prosecutrix that if she discloses the said occurrence to anybody, he will kill her. When the appellant accused came to know about the pregnancy of the prosecutrix, he forcibly administered medicine by which there was miscarriage of the prosecutrix and the appellant also became ready and willing to marry the prosecutrix. After some months, the appellant accused refused to marry the prosecutrix in spite of insistence made by the prosecutrix. It is further case of the prosecution that upon insistence by the prosecutrix to marry, the appellant accused threatened the prosecutrix to kill her. It is also alleged by the informant prosecutrix that on 18.5.2004 when the prosecutrix was going to Gumla, on the way before boarding the bus, the accused appellant along with others assaulted the prosecutrix and threatened her that if she lodges any case in the police station at Gumla, he will murder her and all her family members and the appellant-accused also snatched away the gold chain worth Rs.6000/-from the neck of the prosecutrix. The informant prosecutrix further alleged that two days prior to the said incident i.e. on 16.5.2004 the appellant-accused at about 7:00 pm pointed out pistol upon the prosecutrix and wanted to kill her but later the appellant-accused let her go after threatening and the appellant often restrained the prosecutrix from going to Gumla. Based on the fardbeyan of the informant-prosecutrix, police registered Dumri P.S. Case no. 18 of 2004 and took up the investigation of the case. 4. On completion of the investigation, the police submitted charge-sheet against the appellant-accused. After commitment of the case to the Court of Session, charges for the offences punishable under Sections 341, 379, 376, 313 of the Indian Penal Code were framed against the appellant-accused. Upon the appellant-accused pleading not guilty to the charges, he was put to trial. 5. In support of its case, the prosecution has altogether examined ten witnesses including the doctor and the I.O. On behalf of the appellant-accused, five witnesses were examined. Out of the witnesses examined by the prosecution, P.W.1-Anima Minz, P.W.2-Dhirju Malar (paternal uncle of the prosecutrix), P.W.3-Suchita Ekka, have not supported the prosecution case and denied any occurrence of rape committed upon the prosecutrix and these three witnesses were declared hostile. 6. P.W.4-is the informant-prosecutrix of this case. She has stated that on 24.12.2003 she went to Bhikhampur church in the night with her friends Anima Minz-P.W.1 and Suchita Ekka-P.W.3. She was returning at about 11-12 O’clock at night, on the way the appellant accused met her. He forcibly took her by pulling to his old house at Govindpur Village. The appellant accused removed her clothes and gagged her mouth with cloth and committed rape upon her against her will throughout the night. In the morning, the appellant accused threatened the prosecutrix that if she discloses the said occurrence to anybody, he will kill her. By such rape, the prosecutrix carried pregnancy for two months and when the prosecutrix disclosed the same to the accused appellant, he drove the prosecutrix out of the house and forcibly administered medicine to her and gave fist blow on her belly by which there was miscarriage of the prosecutrix. By such rape, the prosecutrix carried pregnancy for two months and when the prosecutrix disclosed the same to the accused appellant, he drove the prosecutrix out of the house and forcibly administered medicine to her and gave fist blow on her belly by which there was miscarriage of the prosecutrix. One or two months after this occurrence, when the prosecutrix was coming to Gumla, the accused appellant, his brother and his friend Zakir did not allow her to board the bus and the appellant accused took away the gold chain worth Rs.6000/-from the prosecutrix and told her not to lodge any case. The prosecutrix went to the police station with her father. The police recorded her statement and took her signature on a paper and on being proved, her signature has been marked as Ext.1. She was medically examined in the Gumla Hospital. The prosecutrix identified the appellant-accused in the Court. In her cross-examination, P.W.4 stated that she professes Hindu religion. She further stated that P.W.1 and P.W.3 were with her at the time of occurrence. After the occurrence, P.Ws. 1 and 3 went to their house out of fear. The old house of the appellant accused was locked, and the appellant accused opened the lock. In para-21 of the cross-examination, she has stated that she does not know the meaning of ‘Balatkar’. She did not sustain any injury in any part of her body. After the occurrence, the appellant accused never did wrong thing at any time with the P.W.4. In the morning, the prosecutrix went to her house but out of fear she did not disclose about the occurrence to anyone. By the time, she was carrying pregnancy for two months, she did not disclose about her pregnancy to anybody except the appellant accused. In para-22 of her cross examination she stated that the appellant-accused did the wrong act once only and thereafter he never did the wrong act. Miscarriage took place in the house of the prosecutrix. In paragraph -40 of her cross-examination, she has stated that on 1.4.2004, the prosecutrix and the appellant-accused together submitted the application for marriage before the Special Marriage Officer and in that application; the fathers of both the appellant-accused and the prosecutrix became the witnesses. In paragraph-41 of the cross-examination, she has stated that the affidavit was sworn by her father and the father of the appellant-accused in Gumla Court. In paragraph-41 of the cross-examination, she has stated that the affidavit was sworn by her father and the father of the appellant-accused in Gumla Court. In that affidavit, the father of the prosecutrix mentioned her date of birth as 17.6.1984. She denied that she was in love with the appellant-accused and that she gave in writing on 26.1.2004 that she will live with the appellant-accused. 7. P.W.5 – Sonpati Devi is the mother of the prosecutrix. She has stated that the appellant took the prosecutrix to the school by catching hold of her hand and committed rape upon her. Occurrence was narrated by the prosecutrix while she was weeping. In her cross-examination, P.W.5 has stated that she has not seen the occurrence herself. 8. P.W.6-Surjan Devi is the sister-in-law (Bhabhi) of the prosecutrix. She has stated that the prosecutrix has gone to Bhikhampur church in the night with her friends. On the way, the appellant-accused forcibly committed rape upon her. The prosecutrix was narrating the occurrence to her mother and P.W.6 overheard the same. Because of miscarriage, the prosecutrix became ill. She identified the appellant in the Court. In her cross-examination, P.W.6 has stated that she is not the eye witness to the occurrence. The prosecutrix disclosed about the occurrence after one and half months. 9. P.W.7.-Manki Kumari is the younger sister of the prosecutrix. She has stated that she was in Allahabad at the time of occurrence and when she returned, the prosecutrix told her that the appellant-accused teased her and thereafter committed rape upon her. She identified the appellant accused in the Court. In her cross-examination, P.W.7 has stated she is not literate. She was working as maid servant in Allahabad and the prosecutrix was working as maid servant in Mumbai. P.W.7 came to her house 4 to 5 days after the occurrence and then the prosecutrix disclosed her about the occurrence. Her parents knew about the occurrence before her. 10. P.W.8-Pandey Malar is the father of the prosecutrix. He has stated that on 24.12.2003 the prosecutrix has gone to Bhikhampur church in the night with her friends and in the next morning, she disclosed him that the appellant accused has committed rape upon her. The appellant accused did not allow the prosecutrix to board the bus and pushed her. In his cross-examination, P.W.8 has stated that he was not examined by the police. The appellant accused did not allow the prosecutrix to board the bus and pushed her. In his cross-examination, P.W.8 has stated that he was not examined by the police. He does not know with whom the prosecutrix has gone. The prosecutrix has been working in Mumbai for about 5 to 6 years and the prosecutrix used to go and come from Mumbai alone. He does not know whether the prosecutrix was in love with the appellant accused. By promising marriage, the appellant accused got an affidavit prepared by the Notary Awani Kant Sharma on 26.3.2004. In that affidavit, the date of birth of the prosecutrix has been mentioned as 17.6.1984. P.W.8 was the witness to the application for marriage before the Special Marriage Officer on 1.4.2004. The prosecutrix told the appellant accused to give one acre of land but he did not agree for the same. No land stands recorded in the name of the appellant accused. 11. P.W.10-Dr. Shakuntala Pandey examined the prosecutrix on 19.6.2004 at 9:30 am. She found that there was no external injury on any part of the body of the victim. Old rupture hymen was there. Vaginal orifice was admitting two fingers easily. The victim was habitual in sexual act. Spermatozoa was not found in the vaginal swab. The age of the victim was 18 to 19 years as per the X-ray plate. No sign and symptom of sexual intercourse was found. On being proved by her, the report prepared upon examination of the informant by her was marked Exhibit 4. In her cross-examination, she stated that there is no such which will cause abortion within four hours and she said voluntarily that for abortion, 24 to 48 hours’ time is required. 12. P.W.9-Tarsiyush Toppo is the I.O. of the case. He stated that he recorded the fardbeyan of the prosecutrix, which has been marked as Ext.2. This witness after taking up investigation of the case went to the place of occurrence. He described the place of occurrence in detail. On being proved by P.W.9, the formal F.I.R. was marked as Exhibit 3. This witness sent the prosecutrix for medical examination and obtained the medical report and after completing the investigation, he submitted the charge-sheet. In his cross-examination, P.W.9 has stated that the villagers disclosed that there was love affairs between the appellant-accused and the prosecutrix for a long time. 13. This witness sent the prosecutrix for medical examination and obtained the medical report and after completing the investigation, he submitted the charge-sheet. In his cross-examination, P.W.9 has stated that the villagers disclosed that there was love affairs between the appellant-accused and the prosecutrix for a long time. 13. After closure of the evidence of the prosecution, the statement under Section 313 Cr.P.C. of the appellant-accused was recorded wherein he denied the circumstances appearing in evidence against him. 14. From the side of the defence, five witnesses have been examined. 15. D.W.1-Sopal Lohra is a villager. He stated about the appellant-accused and the prosecutrix being in love with each other for three years. A meeting took place on 26.1.2004 in which the prosecutrix and the appellant-accused were present. In that meeting, a paper was prepared which was signed by the appellant-accused, the prosecutrix and D.W.1 also signed the same. The paper was marked as Ext.A. Others also singed over the same. It was agreed between the prosecutrix and the appellant that they will live together after solemnizing the marriage in court. In his cross-examination, he has stated that he has heard about the love relationship, existing between the appellant and the prosecutrix. 16. D.W.2-Barnawas Minz has stated that there was love relationship between the prosecutrix and the appellant for last three years and the police enquired about the same from the D.W.-2. 17. D.W.3-Md. Khalid Azmi is the Assistant in the Registration Office, Gumla. He produced the marriage register, dated 1.4.2004 which was containing the application for marriage between the appellant and the prosecutrix, in the Court, which was marked as Ext.B and the application for marriage between the appellant and the prosecutrix has been marked as Ext.C. In his cross examination, he has stated that he does not know the parties to the application. 18. D.W.4-Md. Nurullah Ansari has stated that the appellant and the prosecutrix have made their signatures in the paper dated 26.01.2004 in front of him. This witness has also signed over the same which was earlier marked as Ext.A. In his cross-examination, he has stated that the appellant and the prosecutrix are the residents of the different village. 19. D.W.5-Awani Kant Sharma is the Notary Public. He has stated that on 23.3.2004 an affidavit relating to marriage of the appellant and the prosecutrix was sworn before him and the entry has been made in the register. 19. D.W.5-Awani Kant Sharma is the Notary Public. He has stated that on 23.3.2004 an affidavit relating to marriage of the appellant and the prosecutrix was sworn before him and the entry has been made in the register. In his cross-examination, P.W.5 has stated that he does not know the deponent of the affidavit. He has further stated that on 26.3.2004 Tarsiyush Minz and Pandey Malar swore an affidavit before him in connection with the marriage of the prosecutrix and the appellant-accused in which Pandey Malar has mentioned the date of birth of the prosecutrix as 17.6.1984. 20. The learned court below after taking into consideration the evidences available on record both, oral and documentary, convicted and sentenced the appellant-accused for the offence punishable under Section 376 of the Indian Penal Code but acquitted him for the offences punishable under Sections 341, 379, 313 of the Indian Penal Code by giving him the benefit of doubt. 21. Mr. Gautam Kumar, learned counsel for the appellant, submits that the learned court below could not properly appreciate the evidence in the record and failed to consider that there was unexplained and inordinate delay of about six months in lodging the FIR and except the prosecutrix, whose testimony is full of exaggeration, improvement, contradiction and suppression of material facts hence untrustworthy, there is no eye witness to the occurrence. It is next submitted that the evidence of the prosecutrix regarding commission of rape by appellant-accused is not supported by the medical evidence which has come through the deposition of P.W.10-the doctor, as P.W.10 did not find any sign of rape upon the prosecutrix. It is submitted that the testimony of the prosecutrix P.W.4 is suffering from several contradictions and variations and she materially departed from the contents of the fardbeyan. It is also submitted by learned counsel for the appellant that two witnesses of the prosecution being P.Ws. 1 and 3, who, as per the case of the prosecution, were present when the appellant accused took away the prosecutrix by using force from the Bhikhampur church to his house, have not supported the prosecution case and have categorically stated that no such occurrence as stated by the prosecutrix has taken place. 1 and 3, who, as per the case of the prosecution, were present when the appellant accused took away the prosecutrix by using force from the Bhikhampur church to his house, have not supported the prosecution case and have categorically stated that no such occurrence as stated by the prosecutrix has taken place. It is further submitted by the learned counsel for the appellant that though the prosecutrix P.W.4 has stated in her deposition that she did not disclose about the occurrence to anybody else except the appellant accused till two months after the occurrence but the father, mother, sister of the prosecutrix, who have been examined as P.Ws. 8, 5 and 7 respectively, have stated that the prosecutrix has after the occurrence disclosed about the occurrence to them which falsifies the prosecution case and also makes the inordinate and unexplained delay of about six months in lodging the FIR fatal for the case of the prosecution. More so, because it is the case of the prosecution as deposed by P.W.4-prosecutrix herself that she was raped by the appellant accused once only. It is further submitted by learned counsel for the appellant that as admitted by P.W.9-I.O. that during investigation the villagers have disclosed about the love affairs between the appellant and the prosecutrix which is corroborated by the deposition of the witnesses of the defence as well as the connected documents, which have been marked as Ext.A to D, which show that in fact the marriage was to take place between the appellant and the prosecutrix and the suppression of these facts in the fardbeyan as well as in the deposition of the prosecutrix certainly falsify the prosecution case and as there is ample evidence in the record that the date of birth of the prosecutrix was 17.6.1984 and so the prosecutrix was major being more than 18 years on the date of alleged occurrence and hence evidence in the record is insufficient to establish the charge for the offence punishable under Section 376 of the Indian Penal Code against the appellant, in the absence of any evidence of the prosecution that the appellant-accused obtained the consent of the prosecutrix on the pretext of marriage. Hence, it is submitted that this is a fit case where the appellant-accused be acquitted by at least giving him the benefit of doubt and the judgment of conviction and order of sentence passed by the learned court below be set aside, being not sustainable in law. 22. Mr. S.K. Pandey, learned Addl.P.P., on the other hand, defended the impugned judgment of conviction and order of sentence and submitted that the prosecutrix has categorically stated about the ingredients of the offence of commission of rape by the appellant-accused and her testimony is corroborated by the testimonies of P.Ws. 5 to 8, which is sufficient to establish the charge for the offence under Section 376 of the Indian Penal Code and learned Court below having rightly convicted and sentenced the appellant-accused, this appeal being without any merit be dismissed. 23. Having heard the submissions of learned counsel made at the bar and after going through the evidence on record, I find that in absence of any evidence of any weapon carried by the appellant accused, it is improbable that he took the prosecutrix to his old house, which is at a considerable distance from the place where he first met her and the appellant accused opened the lock of the house himself and took the prosecutrix inside his house and all this while the prosecutrix did not run away from the custody of the appellant-accused. It is also improbable that even after that, there was any need for the appellant to gag the mouth of the prosecutrix with cloth while committing the alleged rape in his old house when no one was there in or near the house. The testimony of the P.W.4-prosecutrix that she did not disclose about the occurrence to anybody else except the appellant till two months after the occurrence, is falsified by the testimonies of P.Ws. 5 to 8 who have stated that the prosecutrix disclosed them about the occurrence much before that and there is no explanation for the delay of six months in lodging the FIR. 5 to 8 who have stated that the prosecutrix disclosed them about the occurrence much before that and there is no explanation for the delay of six months in lodging the FIR. The defence case on the other hand is also partly admitted by the prosecutrix and her father that the marriage was to be solemnized between the prosecutrix and the appellant accused and for that they applied to the Special Marriage Officer, Gumla on 1.4.2004 and suppression of these material facts by the prosecutrix both in her examination-in-chief in the court as well as in the fardbeyan and the fact that P.W.4-prosecutrix denied existence of any love affair between her and the appellant-accused, though the witnesses have deposed about existence of such relationship which is corroborated from Exhibit A to D shows that P.W.4-prosecutrix is not a truthful witness. The testimony of the P.W. -8 being the father of the prosecutrix that the prosecutrix told the appellant-accused to give one acre of land but he did not agree for the same, do not fit in the case of the prosecution. The P.W. 5 who is the mother of the prosecutrix deposed that the occurrence took place in a school. There is nothing in the medical examination report of the prosecutrix to support her contention that rape was committed upon her. The evidence in the record as indicated above establishes that the prosecutrix was a major on the date of occurrence. Because of the circumstances discussed above certainly this is not a case where a conviction can not be based on the sole testimony of the prosecutrix. 24. Under such circumstances, I have no hesitation in holding that the evidence in the record is insufficient to establish the charge for the offence punishable under Section 376 of the Indian Penal Code against the appellant accused beyond all reasonable doubt and in the facts and circumstances of this case, the accused-appellant is entitled to the benefit of doubt. 25. Thus, the impugned judgment of conviction dated 29.11.2005 and order of sentence dated 01.12.2005 passed by the learned 2nd Additional Sessions Judge, Gumla in Sessions Trial No. 330 of 2004, being not sustainable in law is set aside and the appellant is acquitted of the charge for the offence punishable under Section 376 of the Indian Penal Code. 26. 25. Thus, the impugned judgment of conviction dated 29.11.2005 and order of sentence dated 01.12.2005 passed by the learned 2nd Additional Sessions Judge, Gumla in Sessions Trial No. 330 of 2004, being not sustainable in law is set aside and the appellant is acquitted of the charge for the offence punishable under Section 376 of the Indian Penal Code. 26. Perusal of the record reveals that the appellant is in custody, in view of his acquittal, he is directed to be released and set at liberty forthwith, if his detention is not required in any other case. 27. Let a copy of this judgment be sent to the learned court below forthwith. 28. In result, this criminal appeal is allowed.