JUDGMENT : Heard, Mr. A. K. Sahani assisted by Mr. Pankaj Verma, learned counsels appearing for the appellant and Mr. Rajnish Vardhan, learned Additional Public Prosecutor appearing for the State. 2. The instant Criminal appeal is directed against the Judgment of conviction and order of sentence, both dated 30.09.2003, passed by the learned Sessions Judge, Seraikella-Kharsawan, in Sessions Trial No.62 of 2003, whereby the sole appellant, Meghrai Hansda has been convicted for the offence committed and punishable under Section 376 of the Indian Penal Code and awarded rigorous imprisonment for seven years. 3. The prosecution case is based upon written report submitted by the informant, Salma Murmu (P.W.7) before the Officer-in-Charge, Rajnagar Police Station in the District of Seraikella Kharsawan, alleging therein that rape has been committed. The informant has alleged that on 23.10.2002 at around 5 p.m., while she was at her paddy field, Meghrai Hansda (appellant) committed rape with her and gave threatening that if the occurrence is disclosed to anybody, she will be killed. The informant has alleged that since accused committed rape upon her, rigorous punishment be imposed so that in future he may not commit such activity. The written report having the thumb-impression of the right hand of the informant, Salma Murmu, is basis of the First Information Report. On the basis of the aforesaid 'fardbeyan' of Salma Murmu (P.W.7), informant, the Police instituted First Information Report bearing Rajnagar P.S. Case No. 43 of 2002 dated 25.10.2002 corresponding to G.R. No.671 of 2002 under Section 376 of the Indian Penal Code against the accused/appellant. 4. After investigation, the Police submitted charge-sheet vide No.52 of 2002 dated 30.11.2002 under Section 376 I.P.C. against the sole accused/appellant (Meghrai Hansda). 5. The cognizance of the offence has been taken vide order dated 04.12.2002, and the case has been committed to the Court of Sessions vide order dated 27.05.2003. The charge has been framed against the appellant on 5th day of July, 2003 under Section 376 I.P.C., to which he pleaded innocence and thus, was put under trial. 6. The prosecution has examined altogether eight witnesses and also exhibited three documents to prove its case beyond all reasonable doubt. The charge has been framed against the appellant on 5th day of July, 2003 under Section 376 I.P.C., to which he pleaded innocence and thus, was put under trial. 6. The prosecution has examined altogether eight witnesses and also exhibited three documents to prove its case beyond all reasonable doubt. Bhim Sen Murmu, younger cousin-in-law of the informant and being a hearsay witness has been examined as P.W.1, Huding Tudu, who claims to be eye-witness of the occurrence, has been examined as P.W.2, Lakha Murmu, who also claims to be eye-witness of the occurrence, has been examined as P.W.3, Dr. Bibha Sharan, Medical Officer who has examined the victim on 25.10.2002 and proved the medical report as Exhibit-2, has been examined as P.W.4, Deoki Murmu, aunt-in-law of the informant has been examined as P.W.5, Bosen Murmu, another younger cousin-in-law, has been examined as P.W.6, Salma Murmu, informant-cum-victim of the case has been examined as P.W.7 and Basudeo Das, Assistant Sub Inspector of Police has been examined as P.W.8. Written report submitted by P.W.1 (Bhimsen Murmu), containing right hand thumb-impression of the informant has been proved and marked as Exhibit-1, endorsement of the Officer-in-charge on the written report has been proved and marked as Exhibit-1/1, Medical report of the victim has been proved and marked as Exhibit-2 and Formal First Information Report has been proved and marked as Exhibit-3. After closure of the prosecution evidence, the statement of the accused/appellant has been recorded under Section 313 Cr.P.C. on 11.09.2003, wherein he has stated that he has falsely been implicated in this case as Bosen Murmu (P.W.6), younger brother-in-law of the informant, has kept his wife as keep. 7. After recording the statement under Section 313 Cr.P.C. of the appellant, the defence has examined two witnesses, Sonaram Manjhi as D.W.1 and Dinesh Manjhi as D.W.2. 8. After hearing the learned counsel for the parties, the learned trial court has passed the impugned judgment of conviction and order of sentence. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellant has assailed the impugned judgment of conviction and order of sentence in the present Criminal Appeal which is being heard and disposed of, by this judgment. 9. Heard, Mr. A. K. Sahani assisted by Mr. Pankaj Verma, learned counsels appearing for the appellant. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellant has assailed the impugned judgment of conviction and order of sentence in the present Criminal Appeal which is being heard and disposed of, by this judgment. 9. Heard, Mr. A. K. Sahani assisted by Mr. Pankaj Verma, learned counsels appearing for the appellant. Learned counsel for the appellant has submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellant has submitted that as per the First Information Report, the alleged date of occurrence is 23.10.2002, but the First Information Report has been lodged before the Police on 25.10.2002 without whispering about any reason regarding such delay. Learned counsel for the appellant has further submitted that presence of witnesses P.W.2 (Huding Tudu) and P.W.3 (Lakha Murmu), as have been stated in their examination-in-chief are under cloud, who claim themselves to be eye-witness to the occurrence, is nothing, but an exaggeration and improvement in the prosecution case as these two witnesses are relatives of P.W.6 (Bosen Murmu), who has kept wife of the appellant as his keep in his house and for that enmity was prevailing between the parties. Learned counsel for the appellant has further submitted that medical evidence which has been proved as Exhibit-2 shows that the victim (P.W.7) used to have sexual intercourse and she has recent sexual intercourse. The husband of the victim (P.W.7) died 4 years ago, but she used to have sexual intercourse and because of that, it cannot be said that sexual intercourse found recently on the victim is sexual intercourse by the appellant, as the appellant has not been examined under Section 53A Cr.P.C. to prove his guilt. Learned counsel for the appellant has further submitted that there is contradiction in the evidence of P.W.8 (Basudeo Das), Investigating officer of the case, who has categorically stated in Para-3 of his cross-examination, that this witness has examined witnesses i.e. P.W.3 (Lakha Murmu) and P.W.2 (Huding Tudu) on 27.10.2002 wherein P.W.2 has stated before him that the occurrence was disclosed to the villagers, who assured that a Panchayati will be held and decision will be taken, but accused/appellant (Meghrai) did not appeared before the villagers. When this part of the evidence of P.W.8 is compared with the evidence of P.W.2 (Huding Tudu) and P.W.3 (Lakha Murmu), this fact has not been found to be correct as they have not stated the same during deposition in the Court. Learned counsel for the appellant has further submitted that enmity cuts both ways, but in the present case, Bosen Murmu who has been examined as P.W.6 being the younger cousin-in-law of the informant (P.W.7) and young brother of P.W.1 (Bhimsen Murmu) who has drafted the First Information Report, has got the wife of the appellant (Meghrai Hansda) as his keep, as such, under such background of enmity, the appellant has been falsely implicated in this case, as the victim has been found to be a widow, but used to have sexual intercourse, as appears from the report of the Doctor and is sufficient to prove that the victim (P.W.7) is habitual of sexual intercourse and thus, the evidence of sexual intercourse was found, as per the report of the Doctor, the victim used to have sexual intercourse, whose husband died 4 years ago. Learned counsel for the appellant has further submitted that since the appellant has not been examined under Section 53A Cr.P.C., it cannot be established that the victim has been raped by this appellant. Learned counsel for the appellant has further submitted that as per the evidence of P.W.7 (victim), who had tried to push the appellant at the place of occurrence i.e. paddy field, but no external injury was found on the person of the victim. Learned counsel for the appellant has further submitted that the Investigating officer has inspected the place of occurrence on the next date of lodging of the First Information Report, but he did not found any sign to establish that rape has been committed at the place of occurrence, which is a paddy field, as the paddy was standing. Learned counsel for the appellant has further submitted that the Investigating officer has inspected the place of occurrence on the next date of lodging of the First Information Report, but he did not found any sign to establish that rape has been committed at the place of occurrence, which is a paddy field, as the paddy was standing. Learned counsel for the appellant has further submitted, that in view of the enmity prevailing between the parties, false implication of the appellant cannot be ruled out, as the victim (P.W.7) used to have sexual intercourse and such evidence does not corroborate the prosecution case, where allegation is of committing rape against the appellant once and as such, it cannot be said that the victim was raped once by this appellant, though the appellant has not been examined under Section 53A Cr.P.C., as such, benefit of doubt may be given by acquitting from the charge and conviction under Section 376 I.P.C. 10. Heard Mr. Rajnish Vardhan, learned Addl. Public Prosecutor, appearing for the State. Learned Additional Public Prosecutor appearing for the State has submitted that the impugned judgment of conviction and order of sentence has been passed on the material available on record as the victim-P.W.7 (Salma Murmu) has alleged that she has been raped by this appellant on 23.10.2002 while she was in the paddy field, as such, it is sufficient to convict the appellant as the victim has categorically stated that this appellant has committed rape upon her. Learned counsel for the State has further submitted that there is delay in lodging of the First Information Report because of the threat given by the appellant. Learned counsel for the State has submitted that P.W.2 (Huding Tudu) and P.W.3 (Lakha Murmu) are eye-witnesses to the occurrence and the prosecution has established its case beyond all reasonable doubt in which two eye-witnesses are there, as such, impugned judgment of conviction and order of sentence be upheld and confirmed. 11. Heard, Mr. A. K. Sahani, assisted by Mr. Pankaj Verma, learned counsels appearing for the appellant and Mr. Rajnish Vardhan, learned Addl. 11. Heard, Mr. A. K. Sahani, assisted by Mr. Pankaj Verma, learned counsels appearing for the appellant and Mr. Rajnish Vardhan, learned Addl. Public Prosecution appearing for the State and from perusal of the material available on record, First Information Report, framing of charge, evidence of all the eight prosecution witnesses, statements of the appellant recorded under Section 313 Cr.P.C., three exhibits and the two defence witnesses and also from perusal of impugned judgment of conviction and order of sentence, this Court is of the opinion that P.W.1 (Bhimsen Murmu) is the master mind of the case, who has written First Information Report on which the informant (victim – P.W.7) has put her right hand thumb impression. In the First Information Report, there is no whisper about the cause of delay nor any whisper that she was brought by P.W.2 (Huding Tudu) and P.W.3 (Lakha Murmu) from the place of occurrence, as they have claimed themselves to be eye-witnesses after occurrence when accused/appellant was fleeing from paddy field. Further, when the occurrence was disclosed by the victim (Salma Murmu), P.W.1 (Bhimsen Murmu), P.W.2 (Huding Tudu) and P.W.3 (Lakha Murmu) were present at their house, but there is no whisper that these persons have seen the occurrence or came at the place of occurrence when the informant has raised 'hulla'. The informant has never stated in her 'fardbeyan' that after commission of the rape, she has raised hulla, rather as per the evidence adduced by the informant (P.W.7), she washed her petticoat having stained, which shows that the prosecution is in tendency of developing and exaggerating her case against the appellant at the hands of Bhimsen Murmu (P.W.1) whose younger brother, Bosen Murmu (P.W.6) has kept wife of the appellant as his keep. The husband of the victim died 4 years ago. As per the evidence adduced by the prosecution, victim (P.W.7) was residing in the house of P.Ws.1, 2, 3 and 6. Bosen Murmu (P.W.6) is the person, who is own brother of P.W.1 (Bhimsen Murmu) and he has kept wife of the appellant as his keep and for that, enmity was prevailing between the parties. P.W.1 (Bhimsen Murmu) has encashed the opportunity to falsely implicate the appellant whose wife has been kept as keep at Jamshedpur. Bosen Murmu (P.W.6) is the person, who is own brother of P.W.1 (Bhimsen Murmu) and he has kept wife of the appellant as his keep and for that, enmity was prevailing between the parties. P.W.1 (Bhimsen Murmu) has encashed the opportunity to falsely implicate the appellant whose wife has been kept as keep at Jamshedpur. Thus, being in full control of the victim (Salma Murmu), P.W.1 (Bhimsen Murmu) has drafted First Information Report on which right hand thumb-impression of the victim was taken and that was made basis of the First Information Report. From perusal of the evidence of P.W.8 (Basudeo Das), it appears that at the place of occurrence, no mark was found to substantiate that rape has been committed in the paddy field. This court has taken serious view of the medical evidence, where the victim being widow for the last 4 years, but the Doctor has opined that she used to have sexual intercourse and she has recent sexual intercourse also, meaning thereby, apart from the allegation which has been levelled by the informant in her First Information Report that she was raped by this appellant once, she used to have sexual intercourse, from the perusal of the medical evidence which has been proved as Exhibit-2. There is no mark of violence or any mark of external injury, on the person of the victim. P.W.7 (victim) has stated that while the appellant was trying to commit rape, she pushed him and the resistance was made, then there must have been external injury on the person of the victim, which is completely lacking in the present case. Dr. Bibha Sharan (P.W.4) is the Medical officer, who has proved the medical report and the same has been marked as Exhibit 2. Bosen Murmu (P.W.6), who has kept wife of the appellant, as his keep. Bosen Murmu (P.W.6) is a hearsay witness. Basudeo Das (P.W.8) is the Investigating officer of the case who has categorically stated that he has not recorded statement of any of the villagers. As per the evidence of P.W.2 (Huding Tudu) and P.W.3 (Lakha Murmu), the matter was disclosed to the villagers, but the Investigating officer (P.W.8) has not recorded statement of any of the villagers. Basudeo Das (P.W.8) is the Investigating officer of the case who has categorically stated that he has not recorded statement of any of the villagers. As per the evidence of P.W.2 (Huding Tudu) and P.W.3 (Lakha Murmu), the matter was disclosed to the villagers, but the Investigating officer (P.W.8) has not recorded statement of any of the villagers. Furthermore, Investigating officer (P.W.8) has not found any mark of sign at the place of occurrence though victim has been examined as P.W.7 and she has categorically stated that after commission of rape, she got completely tired and the accused fled away towards the 'jungle'. She got up immediately, washed her petticoat which was stained and thereafter she came to her house. While she was returning, she did not meet any person, meaning thereby, she has demolished presence of P.W.2 (Hudin Tudu) and Lakha Murmu (P.W.3) at the place of occurrence, soon after commission of rape. 12. Considering the above facts, as discussed above, this Court is of the opinion that the appellant has been falsely implicated in this case at the hands of P.W.1 (Bhimsen Murmu), who had complete control upon the victim (P.W.7), as the brother of Bhimsen Murmu, P.W.6 (Bosen Murmu) has got wife of the appellant as his keep, and for that enmity was prevailing between the parties. Under the circumstances, the benefit of doubt is granted in favour of the appellant by acquitting the appellant of charge and conviction under Section 376 I.P.C. 13. Accordingly, the Judgment of conviction and order of sentence, both dated 30.09.2003, passed by the learned Sessions Judge, Seraikella-Kharsawan, in Sessions Trial No.62 of 2003 is set aside. 14. In the result, the instant Criminal Appeal stands allowed. 15. The appellant, who is on bail, is discharged from the liability of his bail bonds. 16. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once. Appeal allowed