JUDGMENT : Prakash Chandra Jaiswal, J. 1. Heard learned Amicus Curiae Mr. Amrit Anunay for the appellant and learned APP for the State on this criminal appeal. 2. This criminal appeal has been preferred against the Judgment and Order of conviction dated 07.02.2013 and Order of sentence dated 13.02.2013 passed by Sessions Judge, Katihar in Sessions Trial No. 300 of 2010 arising out of Dandkhora P.S. Case No. 46 of 2009 whereby the learned trial court acquitted the accused Jagadish Prasad Das and convicted the accused Mithilesh Das for the offence punishable under Section 376 of the Indian Penal Code and sentenced him to undergo R.I. for seven years and also slapped him with the fine of Rs. 25000/- and in case of default of payment of fine to further undergo R.I. for one year under the aforesaid Section. 3. Factual matrix of the case is that Dandkhora P.S. Case No. 46 of 2009 was instituted under Sections 376 and 120-B of the Indian Penal Code against the accused Mithilesh Das and Jagdish Das on the basis of the complaint petition filed by Dulari Kumari, daughter of Ajit Das on 13.07.2009 with the allegation in succinct that the informant happens to be minor aged about 14 years. In the month of February 2009 while she was standing in front of her house, abruptly Mithilesh Das approached her and took her to the cow shed of Dhurkheli Das for sweeping. As soon as she went there, Mithilesh Das forcribly shoved her on the ground and stripping of her attire committed rape against her gagging her mouth extending threatening of dire consequence to her and her family members. In the month of April 2009 at around 12 O'clock, when the informant had gone to her maize field to fetch grass, Mithilesh Das arrived in her field and shoving her in the field forcibly committed rape against her extending threatening of dire consequence to her. In the month of April 2009 at around 12 O'clock, when the informant had gone to her maize field to fetch grass, Mithilesh Das arrived in her field and shoving her in the field forcibly committed rape against her extending threatening of dire consequence to her. Further allegation is that on 06.07.2009 at around 7 PM while the informant was regressing to her house from a shop after fetching some articles and arrived near the cow shed of Dhurkheli Das, Mithilesh Das pressing her mouth took her in the said cow shed and shoving her on the ground and stripping of her attire forcibly committed rape against her extending threatening of dire consequence to her and alluring to perform marriage with her in case of keeping mum. But responding the screaming made by the informant, locals congregated there and witnessed the informant nude and accused Mithilesh Das escaping from the cow shed. When the villagers approached the father of Mithilesh Das namely Jagdish Das to make complain against him, he averted the matter and made his son escape from the village. Thereafter, a panchayati was organised in the village on 07.07.2009 and Jagadish Das gave assurance to present his son before the punches, but in vain. On 09.07.2009, again Panchayati was organised and in the said panchayati, Jagadish Das refused to perform marriage of his son with the informant and offered to settle the matter taking money. Then the informant filed this complaint case. Aforesaid complaint petition was sent to the P.S. under Section 156(3) for registration and investigation of the case. 4. Aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted charge-sheet against the accused Mithilesh Das and supplementary charge sheet against the accused Jagadish Das under Sections 376 and 120-B/34 of the Indian Penal Code. 5. On receiving the charge-sheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence and committed the case to the court of sessions and after commitment and on transfer finally the case came in the seisin of Sessions Judge, Katihar for trial. 6. Charge against the accused Mithilesh Das and Jagadish Das was framed under Section 120-B of the Indian Penal Code and further charge against the accused Mithilesh Das was framed under Section 376 of the Indian Penal Code. 6. Charge against the accused Mithilesh Das and Jagadish Das was framed under Section 120-B of the Indian Penal Code and further charge against the accused Mithilesh Das was framed under Section 376 of the Indian Penal Code. Charges were read over and explained to them by the Court to which they pleaded not guilty and claimed to be tried. 7. To substantiate its case, in ocular evidence, the prosecution has examined altogether eleven prosecution witnesses namely, Samundari Devi @ Sumitra Devi as PW-1, Gita Devi as PW-2, Varun Das as PW-3, Vishwanath Das as PW-4, Ajit Das as PW-5, Lalita Devi as PW-6, Radha Uraon as PW-7, 2nd I.O. Ratan Kumar as PW-8, informant Dulari Kumari as PW-9, Dr. Lakshmi Sen who had examined the victim as PW10 and 1st I.O. of the case namely Daljeet Jha as PW-11. Prosecution has also filed and proved some documents by way of documentary evidence in the case. 8. Statement of the accused persons was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial of the occurrence claiming themselves to be innocent. Accused persons neither adduced any ocular nor documentary evidence in buttress of their case. 9. After hearing the parties and perusing the record, the learned trial court passed the aforesaid Judgment and Order of conviction and sentence as detailed in the earlier paragraph. 10. Being aggrieved and dissatisfied with the aforesaid Judgment and Order of conviction and sentence, convict Mithilesh Das has preferred this Criminal Appeal. 11. The point for consideration in this case is, as to whether the prosecution has been able to bring home the charges levelled against the appellant beyond all reasonable doubts or not. 12. It is submitted by learned Amicus Curiae for the appellant that barring the prosecutrix, no other witness has supported the prosecution case as eye witness of the occurrence and the testimony of the prosecutrix is also not worth credence and reliable. As per the prosecution case and statement of the prosecutrix, rape was committed against the informant by the appellant thrice, but she had given information of the occurrence of committing rape against her by the appellant to her parents only on the third occasion of committing rape against her by the appellant. As per the prosecution case and statement of the prosecutrix, rape was committed against the informant by the appellant thrice, but she had given information of the occurrence of committing rape against her by the appellant to her parents only on the third occasion of committing rape against her by the appellant. Though as per the statement of the informant, blood oozed out from her person and had fallen on her attire even at the time of first occurrence of committing rape against her by the appellant in the month of February 2009 and she had displayed the aforesaid blood stained attire to her parents and police, but no F.I.R. or complaint case was lodged either by the complainant or by her parents at the time of commission of very first occurrence of rape against her in the month of February 2009 which creates serious doubt about the prosecution case and sanctity and credibility of the testimony of the prosecutrix. It is further submitted that the complaint petition has been filed only after happening of third occurrence on 06.07.2009 and that too after inordinate and abnormal delay of seven days of the occurrence and prosecution has not assigned any plausible and convincing reason for the aforesaid delay made in lodging the complaint against the appellant which creates serious doubt about the prosecution case. It is further submitted that as per the witnesses' account, brother of the wife of the uncle of the informant has lodged Dandkhora P.S. Case No. 24 of 2003 for committing murder of his sister against the uncle, father, elder uncle and aunt of the informant and father of the appellant Jagadish Das was the witness of the said case and he had deposed in the said case against the aforesaid accused persons. So the prosecution party was having animosity with the appellant and his father and due to aforesaid animosity informant filed this false and frivolous case against the appellant and falsely implicated him in the case. Thus, the prosecution has utterly and miserably failed to substantiate the prosecution case and bring home the charges levelled against the appellant beyond all reasonable doubts by adducing consistent, trustworthy, reliable and worth credence evidence. Hence, aforesaid judgment and order of conviction and sentence passed against the appellant is liable to be set aside and the appellant is entitled to be acquitted. 13. Hence, aforesaid judgment and order of conviction and sentence passed against the appellant is liable to be set aside and the appellant is entitled to be acquitted. 13. On the other hand, learned APP for the State advocating the correctness and validity of the impugned Judgment and Order of conviction and sentence submitted that the victim has supported the prosecution case in toto and other witnesses who had arrived at the place of occurrence at the time of occurrence and had seen the accused escaping from the place of occurrence have corroborated the prosecution case. The prosecution has sufficiently explained the delay made in filing the complaint petition before the Court by giving evidence to the effect that the aforesaid delay was caused due to organizing Panchayati in the village on two dates i.e. on 07.07.2009 and 09.07.2009 and on refusal by accused persons to oblige the verdict of the punches and perform marriage of the appellant with the informant and due to refusal of lodging of the case by the police on approaching it, advising the informant to file the complaint case in the court, learned trial court correctly appreciating the facts and evidence available on record has rightly passed the impugned Judgment and Order of conviction and sentence which is liable to be upheld and this criminal appeal is shorn of merit and is liable to be dismissed. 14. From perusal of the record, it appears that to substantiate its case, the prosecution has examined altogether eight material witnesses in the case. Out of them, PW-1 Samundari Devi @ Sumitra Devi happens to be mother, PW-2 Gita Devi cousin, PW-3 Varun Das uncle, PW-4 Vishwanath Das elder uncle, PW-5 Ajit Das father and PW-6 Lalita Devi aunt of the informant, PW-7 Radha Uraon happens to be resident of another village and PW-9 Dulari Kumari the informant herself. From perusal of the testimony of PW-1, PW- 2, PW-3, PW-4, PW-5 and PW-6, it appears that though they have deposed about the third occurrence of alleged rape committed against the informant by the appellant, but they do not happen to be eye witness of the occurrence rather had arrived at the place of occurrence at the time of occurrence and witnessed the accused escaping from the place of occurrence and learning the occurrence of committing rape against informant by the appellant on quizzing the informant. Thus, the aforesaid witnesses happen to be hearsay witnesses of the case. Moreover from perusal of the testimony of PW-2 Gita Devi, PW-3 Varun Das, PW-4 Vishwanath Das and PW-5 Ajit Das, I find that the attention of the said witnesses has been drawn by the defence in their respective cross-examination regarding the contradiction between the statement given by them before the court and that given before the I.O. under Section 161 Cr.P.C. in respect of third occurrence of committing rape against the victim by the appellant and witnessing of the appellant escaping from the place of occurrence, etc. The I.O. Daljeet Jha examined in this case as PW-11 in his cross-examination has also corroborated the aforesaid contradiction between their statements given before the Court and that given before him regarding the aforesaid material aspect of the case and thus the aforesaid witnesses appear to have taken altogether different stand regarding aforesaid material aspect of the case in the Court and their testimony does not appear to be credible and worth credence and it does not inspire my confidence to hold conviction of the appellant relying upon the aforesaid testimony of the said witnesses. 15. From perusal of the testimony of the informant Dulari Kumari (PW-9), it appears that she has made an abortive bid to support the occurrence of committing rape against her by the appellant on all the three occasions i.e. in the month of February 2009, in the month of April 2009 and also on 06.07.2009 by deposing in consonance with the prosecution case, but from perusal of the Paras-8, 10, 11 and 12 of her cross-examination, it appears that she had informed the matter of committing rape against her by the appellant to her parents and to the police and displayed her blood stained attire to them at the time of commission of the occurrence of rape against her on the very first occasion i.e. in the month of February 2009 as in the said para she has stated that in the first occurrence blood was oozed out from her person during the course of occurrence and it had fallen on her attire. She had kept the blood stained attire donned and she had displayed the aforesaid blood stained attire to her parents and S.I. but S.I. had not seized the aforesaid blood stained attire. She had kept the blood stained attire donned and she had displayed the aforesaid blood stained attire to her parents and S.I. but S.I. had not seized the aforesaid blood stained attire. But neither the informant nor her parents nor the police had lodged the case against the appellant at the time of commission of the occurrence of rape against her for the first time in the month of February 2009 rather on the third occasion i.e. on 06.07.2009 which creates serious doubt about the credibility of the testimony of the informant as well as prosecution case as had the appellant committed rape against her in the month of February 2009 and blood had fallen on her attire during the course of occurrence and she had displayed the blood stained attire to her parents and Police, she must have divulged the occurrence to her parents and Police. So million dollar question arises as to why the case was not lodged against the appellant at the time of commission of the first occurrence of rape against her rather on alleged commission of the occurrence of rape against her on third occasion. Moreover, from perusal of the prosecution case and the statement of the informant, it appears that earlier in the month of February 2009, the appellant had also committed rape against her, but she had not divulged the occurrence to anyone succumbing threatening of dire consequence to her and her family members extended by the appellant. But from perusal of the aforesaid testimony of the informant as given by her in Para 8, 10, 11 and 12 of her cross-examination, it appears that the informant had shown her blood stained attire to her parents and to the police after very first occurrence of rape committed against her by the appellant. She must have also divulged the occurrence to her parents and the police at that time which means that the informant had earlier divulged the occurrence to her parents and the police even on the first occurrence of rape committed against her by the appellant. Thus, she appears to have lied in the Court and is a dam lier and is not worth credence and reliable and her testimony does not inspire my confidence to hold conviction of the appellant relying upon it. 16. Thus, she appears to have lied in the Court and is a dam lier and is not worth credence and reliable and her testimony does not inspire my confidence to hold conviction of the appellant relying upon it. 16. From perusal of the record, it appears that third occurrence is said to be of 06.07.2009, but the complaint petition has been filed by the informant after inordinate and abnormal delay of seven days i.e. on 13.07.2009. To explain the aforesaid delay, prosecution has taken the case that the aforesaid delay has been caused due to organizing of panchayati in the village on 7th and 9th of July 2009 and refusal by the accused persons to oblige the verdict of the punches and due approaching the P.S. to lodge the case against the accused persons but the P.S. refused to lodge the case and advised them to file the case in the court. Though PW-1, PW-2, PW-3, PW-4, PW-5, PW-7 and PW-9 have stated that the panchayati was organised regarding the occurrence in the village on two dates but the accused persons refused to oblige the verdict of the punches and get the marriage of the appellant performed with the informant. But from perusal of the testimony of PW-3, it appears that in para-14 of his cross-examination, he has stated that Subodh Das, Rajendra Das, Raj Kumar Das, Dhurkheli Das, Tilai Das and others were present in the panchayati. PW-4 has stated in Para-9 of his cross-examination that on 07.07.2009, panchayati was organised at the door of Khagendra Prasad and in para-14 of his cross-examination he has further stated that thereafter the panchayati was organised at the door of Prem Lal and PW-1 in Para-10 of his cross-examination has stated that Shambhu Das, Suren Das, Raj Kumar Das, Anil Das, Uraon Mukhiya and others were present in the panchayati. But neither the aforesaid persons who were present in the panchayati nor Khagendra Prasad at whose door the panchayati is said to have been organised on 07.07.2009 and Prem Lal at whose door the panchayati is said to have been organised on subsequent date i.e. on 09.07.2009 has been examined by the prosecution nor the gram pradhan and Mukhiya of the village concerned and Punch were examined and no plausible and convincing explanation has been given for their non-examination. Hence adverse inference is drawn against the prosecution. Hence adverse inference is drawn against the prosecution. Though PW-7 Radha Uraon has made an abortive bid to support the prosecution case regarding organizing of panchayati by stating that he had also joined the said panchayati. But the testimony of the aforesaid witness does not appear to be convincing and reliable as the said witness happens to be resident of different village as in para-4 of his cross-examination he has stated that his house is located in another village and moreover he has not disclosed the date of organizing panchayati and name of the punches present in the said panchayati. Moreso other witnesses have also not stated about presence of PW-7 in the aforesaid panchayati. Thus from perusal of the testimony of the said witnesses, it appears that the prosecution has utterly and miserably failed to explain the aforesaid delay made in lodging the F.I.R. due to holding of the panchayati in the village and refusal by accused persons to oblige the verdict of the punches. So far as the delay made due approaching the P.S. first to lodge the case and refusal by the P.S. to lodge the case and advising the prosecution party to file the case in the court is concerned, informant Dulari Kumari (PW-9) has stated in Para-3 of her cross-examination that she had got adverted in the complaint petition that she had gone to the P.S., but S.I. did not lodge the case rather asked her to file the case in the Court. But from perusal of the complaint petition, it appears that nowhere in the said petition the informant has whispered about approaching the P.S. for lodging the case at first and refusal to lodge the case by the police asking her to lodge the case in the Court preceding to filing the complaint petition. Moreso even parents of the informant have not corroborated the aforesaid aspect of the case. Moreover, when the police refused to lodge the case on the request made by the prosecution party, then informant and her parents ought to have approached top brass of police and given letter to the S.P. of the district concerned regarding the occurrence and not lodging of the case by the P.S., but no such step has been taken by the prosecution. Thus, the aforesaid aspect of the case creates serious doubt about the aforesaid prosecution case and explanation given by it regarding the delay made in filing the complaint petition before the court. Thus, the prosecution has utterly and miserably failed to explain the aforesaid inordinate and abnormal delay of seven days in lodging the F.I.R. regarding the alleged third occurrence of rape against the informant by the appellant which creates serious doubt about the prosecution case. 17. Pw-3 Varun Das has stated in para-10 of his cross-examination that Dandkhora P.S. Case No. 24 of 2003 was lodged against him in which the accused Jagadish Das was the witness. PW-4 Vishwanath Das has stated in Para-31 of his cross-examination that he and his brother, father of Dulari Kumari (PW-5) were accused in Dandkhora P.S. Case No. 24 of 2003. PW-4 has further stated in Para-11 of his cross-examination that wife of his younger brother had died and her brother had lodged a case against him in the year 2003. PW-6 Lalita Devi has stated in Para-4 of her cross-examination that a case was lodged against her in P.S. Dandkhora by the persons of village Kadepura. I.O. Daljeet Jha (PW-11) has stated in Para-9 of his cross-examination that in para-35 of the case diary it is adumbrated that the accused Jagadish Das is the witness of Dandkhora P.S. Case No. 24 of 2003. From perusal of the testimony of the aforesaid witnesses, it appears that Dandkhora P.S. Case No. 24 of 2003 was lodged against the father, uncle, elder uncle and aunt of the informant by the brother of the slain wife of uncle of the informant and accused Jagadish Das who happens to be father of the appellant was the witness in the said case and had deposed against the aforesaid persons in the said case. Thus, the prosecution party happens to be on inimical terms with the appellant. Thus, the prosecution party happens to be on inimical terms with the appellant. Though animosity cuts both the edge, but in view of not lodging of the case against the appellant regarding the very first alleged occurrence of committing rape against the victim by him despite having knowledge of the aforesaid occurrence by the victim, her parents and the police, abnormal and inordinate delay in lodging the complaint case regarding the alleged third occurrence of rape against the victim by the appellant without assigning any plausible and convincing explanation for the aforesaid delay, unreliable testimony of the witnesses and that of the informant, informant being not worth credence and reliable and non-corroboration of the prosecution case by any eye witness of the occurrence, false implication of the appellant at the hand of the prosecution party due to aforesaid animosity cannot be ruled out. 18. In the facts and circumstances of the case, I find and hold that the prosecution has utterly and miserably failed to substantiate the prosecution case and bring home the charges levelled against the appellant beyond all reasonable doubts by adducing consistent, convincing, reliable and worth credence evidence. Hence, the impugned judgment and order of conviction and sentence passed by the learned trial court against the appellant is set aside and the appellant is acquitted of the charges levelled against him. As the appellant is on bail, he is discharged from the liability of his bail bond. 19. Accordingly, this criminal appeal is allowed. 20. Let a copy of the first and last page of this judgment be handed over to the learned Amicus Curiae, Mr. Amrit Anunay and the learned Amicus Curiae be paid prescribed fee by the Patna High Court Legal Services Committee.