JUDGMENT : RATNAKER BHENGRA, J. 1. This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 5.12.2002 and 9.12.2002 respectively passed by 1st Additional Sessions Judge, Deoghar in connection with S.C. Case No. 375 of 2001 arising out of Sarath P.S. Case No. 53 of 2001, G.R. No. 258 of 2001 whereby and whereunder appellant has been convicted u/s 376 IPC and sentenced to undergo R.I. for seven years. 2. The case of the prosecution as per written report of informant/victim (now deceased) is that on 2.7.2001 at about 6 a.m. her husband had went to the field to work there and at 7 a.m. she was making bread and her father-in-law Bunu Mandal had gone to the pond to attend nature’s call. She was alone in the house. Suddenly appellant Bishnu Mandal entered into her house and after catching hold of her dragged her inside the room and started committing rape on her. She started crying then accused pressed her mouth. In the meantime, her father-in-law Bunu Mandal returned home and on hearing his sound he entered into the house and brought out her from the room and locked the accused Bishnu Mandal into the room. He called the villagers and thereafter the appellant was taken out from the room. 3. On the basis of the written report of the informant formal FIR was registered u/s 376 IPc. After investigation charge sheet was submitted and cognizance was taken. Case was committed to the court of Sessions and charge was framed u/s 376 IPC. Trial commenced and after conclusion of trial appellant was convicted and sentenced as aforesaid hence, this appeal. 4. Prosecution has examined altogether seven witnesses. PW-1 Haradhan Mandal, PW-2 Shyamdeo Mandal, PW-3 Dukhan Mandal, PW-4 Jitan Mandal, PW-5 Harikishore Mandal, PW-6 Baiju Mandal and PW-7 Buno Mandal. 5. P.W.1 Haradhan Mandal had been declared hostile. In cross-examination he said in paragraph No.2 that he had not given statement to police that the father-in-law of the informant Buno Mandal told him that when he returned from the nature call he saw that Bishnu Mandal (appellant) was committing rape with her daughter-in-law and thereafter he took out his daughter-in-law and locked Bishnu Mandal (appellant) inside the room. In paragraph No.3 of his cross-examination he denied that Bishnu Mandal (Appellant) was taken out in their presence. 6. In paragraph No.3 of his cross-examination he denied that Bishnu Mandal (Appellant) was taken out in their presence. 6. PW-2 Shyam Deo Mandal had also been declared hostile. During cross-examination this witness had stated in paragraph No.6 that informant, he, Haradhan Mandal, Dukhan Mandal and Bishnu Mandal are neighbours and the husband of the informant is the business partner of Bishnu Mandal. 7. PW-3 Dukhan Mandal has also been declared hostile by the prosecution. In paragraph No.5 he said that nine months ago, there was a dispute regarding money between the appellant Bishnu Mandal and the husband of the informant who were business partners and that dispute led to a panchayati also. 8. PW-4 Jitan Mandal is a hearsay witness and has stated before the court that there is a conflict between Bishnu Mandal and Baiju for last nine months and as such they were not in talking terms and visiting each other houses. Further he deposed that for medical examination of the victim the husband of the informant had not accompanied her rather the father-in-law had gone with her. Police had not come to his village and that informant/victim committed suicide after hanging herself. 9. P.W.-5 Hari Kishore had also been declared hostile by the prosecution. 10. PW-6 Baiju Mandal is the husband of the informant. He was also declared hostile by the prosecution as he deposed that he had no knowledge about the occurrence. 11. PW-7 Bunu Mandal is the father-in-law of the victim. He had also been declared hostile by the prosecution. ARGUMENTS ON BEHALF OF APPELLANT: 12. Learned counsel for the appellant has submitted that all witnesses except PW-4 Jitan Mandal have been declared hostile as they have not supported the case of prosecution. He has further submitted that there is also contradiction in the evidence of PW-4 who has supported the prosecution case and as such his evidence is also not reliable and trustworthy. It has come in the evidence of PW-4 that there was some dispute regarding money matters and it was subsisting since 9 months and they were also not in talking terms. It has come in the evidence of PW-4 that there was some dispute regarding money matters and it was subsisting since 9 months and they were also not in talking terms. He has also submitted that even this witness is a hearsay witness as he was relying on the version of the father-in-law of the victim Buno Mandal, PW-7 who is said to be the eye witness to the rape but this PW-7 had himself not supported the prosecution case and was declared hostile. So in this case even the evidence of PW-4 became doubtful. Counsel further submitted that in cases of rape it is seen that if the prosecutrix or the victim has been examined and her testimony and evidence is reliable then even in absence of the evidence of doctor or the investigating officer, conviction can be sustained. However, in the case at hand the victim has not been examined and therefore there is no basis to consider the trustworthiness or reliability of the victim and therefore, it will be difficult to sustain the conviction of the appellant without any evidence. 13. Learned counsel for the appellant further submitted that even no medical evidence has been produced or exhibited so as to testify whether rape had been committed or not. In absence of such medical report and the examination of doctor concerned the benefit would only accrue to the appellant. Learned counsel further submits that even the investigating officer has not been examined which would even most necessary in a case of this kind. Particularly, in the context that six witnesses had either been declared hostile for not supporting the prosecution case and PW-4 Jitan Mandal himself being a hearsay witness who deposed that Buno Mandal, PW-7 was the eye witness but this Buno Mandal has himself been declared hostile. In such situation, the evidence of the investigating officer would have been most crucial for proving the case of the prosecution. In his absence any benefit that accrues will go to the appellant. Counsel has also submitted that in this case written report and the FIR have not been proved and marked as exhibits. He has submitted that it is seen from the written report that it reportedly bears the thumb impression of the alleged victim however, it has come on record in the impugned judgment that she had passed away. Counsel has also submitted that in this case written report and the FIR have not been proved and marked as exhibits. He has submitted that it is seen from the written report that it reportedly bears the thumb impression of the alleged victim however, it has come on record in the impugned judgment that she had passed away. Therefore, the matter could not be examined and properly exhibited and therefore, the written report which is the basis of the case of the appellant even not proved and marked as exhibits and it is also same for the FIR. Learned counsel further submitted that learned counsel for the State was given an opportunity to get the FIR admitted so that it could later on be exhibited but he failed to do so. Counsel has also added that even this written report of the victim does not bear the signature of any other persons though it is said that Chaukidar and father-in-law, PW-7 of the victim had accompanied the police. Therefore, it is very strange why the signature of the Chaukidar and father-in-law of the victim was not obtained in the written report. The victim had died next day after filing of written report and her thumb impression was there on the written report then why the signature of Chaukidar and father-in-law of the victim was not taken, it creates serious doubt as to the genuineness of the written report itself. Learned counsel further submitted that the appellant had been convicted for the offence under section 376 IPC not for Section 306 IPC so the court should be confined for the offence of Section 376 IPC only. The offence of rape should not be linked up to the suicide because trial court itself has not done so and the offence which has been tried is only of rape. PW- 4 deposed that the informant had committed suicide but no U.D. case was registered and also PW-4 had not linked it to any rape so such suicide should not be used to conclude that because of rape suicide was committed. Counsel further submitted that it is very strange that the Chaukidar who was a charge-sheeted witness had not been examined. Counsel further submitted that it is very strange that the Chaukidar who was a charge-sheeted witness had not been examined. As per evidence of PW-4 he accompanied the said Chaukidar and they had gone to the police station which shows that the said Chaukidar was fully aware with the alleged offence in-spite of that he had not been examined which is a great lacunae on the part of prosecution. Counsel further said that PW-4 is the only witness who was not declared hostile but his evidence is also not very reliable as in his deposition he had deposed that at the time of occurrence he was not at Raja Raidih rather on alarm he went to there but in his cross-examination he deposed that he is the resident of Phuldoba which is 1 k.m. away from the place of occurrence. Learned counsel further submitted that the appellant had already undergone about 3 and ½ years in jail which may be considered. ARGUMETNS ON BEHALF OF STATE: 14. Learned counsel for the State-APP has argued that it has come in the evidence of PW-4 that PW-7 had conveyed to him that rape was done in his presence. He has further argued that only because the victim was not examined does not mean that her written report should not be believed rather it should be surely taken into account. He further submitted that it is common instance that in cases of rape the victim is led to commit suicide which has also been done in this case. After being ravished by the appellant she was so disturbed mentally and emotionally that she had committed suicide and only due to the fact that the appellant had committed a heinous crime upon her. Therefore, conviction and sentence against the appellant must be upheld. FINDINGS: 15. Having gone through the records of the case, seen the evidences and having heard counsels, I find that this is a case which seemingly has no evidence to stand on. There are seven prosecution witnesses in this case out of which six prosecution witnesses have been declared hostile in this case and only prosecution witness No. 4 Jitan Mandal had not been declared hostile. PW-4 also is not an eye witness but relied on the evidence of PW-7 Buno Mandal who is said to be the father-in-law of the victim. There are seven prosecution witnesses in this case out of which six prosecution witnesses have been declared hostile in this case and only prosecution witness No. 4 Jitan Mandal had not been declared hostile. PW-4 also is not an eye witness but relied on the evidence of PW-7 Buno Mandal who is said to be the father-in-law of the victim. However, even this P.W.-7 Buno Mandal had not supported the prosecution case and had been declared hostile. In the absence of the victim, if her own father-in-law also does not support her or the prosecution case, then there is nothing to go by. Even the husband of the informant PW-6 Baiju Mandal was declared hostile. Further no medical report has been produced and exhibited and no doctor was examined to affirm rape. Even the Investigating officer had not been examined. 16. Therefore, based on the records of the case, evidences, arguments and in the facts and circumstances, I am unable to sustain and uphold the conviction of the appellant u/s 376 IPC. 17. Accordingly, the judgment of conviction and order of sentence dated 5.12.2002 and 9.12.2002 respectively passed by 1st Additional Sessions Judge, Deoghar in S.C. Case No. 375 of 2001 arising out of Sarath P.S. case no. 53 of 2001 is set aside. Appellant is on bail. He is discharged from the liabilities of bail bond. 18. Accordingly, appeal is allowed.