JUDGMENT Kailash Prasad Deo, J. - Heard, learned counsel for the appellant, Mr. Ranjan Kumar Singh, assisted by Mr. Sumit Kumar, Advocate and learned counsel for the State, Mr. Tapas Roy, Additional Public Prosecutor. 2. The instant criminal appeal is directed against the judgment of conviction dated 31.05.2004 and order of sentence dated 02.06.2004, passed by learned Sessions Judge, Godda, in Sessions Trial No. 107 of 2001, whereby the sole appellant has been convicted for the offence committed and punishable under Sections 376/511 and 448 of the Indian Penal Code and awarded rigorous imprisonment for six years for the offence committed and punishable under Section 376/511 of the Indian Penal Code and one year for the offence committed and punishable under Section 448 of the Indian Penal Code. Both the sentences are directed to run concurrently. The period undergone by the accused during trial shall be set off under Section 428 Cr.P.C. 3. The prosecution case is based upon fardbeyan of informant, (P.W.-4) (whose name is not being disclosed), recorded by Sub-Inspector of police G.P. Sharma, Officer-in-charge of Godda (M) police station on 02.03.2001 at 14:15 Hrs. at Mufassil police station, wherein the informant has alleged, that on 28.02.2001 (Wednesday) the informant alongwith her mother was sleeping on mat and her father went out of the house for negotiation of marriage of the informant. It is alleged that at around 12:00 in the night, she felt that somebody is pulling by her left hand, she opened her eyes and saw Munna Ansari, who puts a cloth on her mouth and dragged her outside the room in the court-yard and pressed her breasts and asking the informant to contract marriage and also threatening the informant with dire consequences by putting the house on fire. After removing the cloth from mouth, the informant raised brawl. Because of the darkness, the accused person fled away. The informant has subsequently disclosed the occurrence to her mother and subsequently after arrival of the father of informant a panchayati was convened on 01.03.2001 in the night but the accused person did not appear, as such the case has been filed after a delay. 4. On the basis of fardbeyan, the police has instituted Godda (M) P.S. Case No. 62 of 2001, dated 02.03.2001, under Sections 452, 354, 341 and 376 of the Indian Penal Code. 5. 4. On the basis of fardbeyan, the police has instituted Godda (M) P.S. Case No. 62 of 2001, dated 02.03.2001, under Sections 452, 354, 341 and 376 of the Indian Penal Code. 5. After completion of investigation, the police has submitted charge sheet vide charge sheet no.35 of 2001, dated 30.05.2001, under Sections 448 and 376 of the Indian Penal Code, against the sole accused person. 6. The cognizance of the offence has been taken vide order dated 06.06.2001 and the case has been committed to the court of sessions vide order dated 26.07.2001. 7. The charge has been framed against the accused/appellant under Sections 448 and 376 of the Indian Penal Code, on 07.09.2001, to which the accused/appellant has pleaded his innocence and thus, he was put under trial. 8. The prosecution, to prove its case, has examined altogether nine witnesses and also exhibited a number of documentary evidence up to exhibit-4. Abedin Ansari, has been examined as P.W.-1, Ramisa Khatoon, mother of the victim, has been examined as P.W.-2, Basir Ansari, father of the victim, has been examined as P.W.-3, informant and victim of the case, has been examined as P.W.-4, Dr. Prabha Rani Prasad, Medical Officer, has been examined as P.W.-5, Afzal Karim Ansari, has been examined as P.W.-6, Md. Israil Ansari, has been examined as P.W.-7, Jalaluddin Ansari, has been examined as P.W.-8 and Bindeshwar Choudhary, investigating officer of the case, has been examined as P.W.-9. Injury report of the victim, has been proved and marked as exhibit-1, fardbeyan has been proved and marked as exhibit-2, formal First Information Report, has been proved and marked as exhibit-3, endorsement on the fardbeyan, has been proved and marked as exhibit-4. 9. After closure of the prosecution evidence, the statement of the accused has been recorded under section 313 Cr.P.C., on 22.04.2004, to which the accused has denied the allegation levelled against him and stated that he is innocent and has been falsely implicated in this case. 10. After hearing the learned counsel for the parties and on perusal of materials available on record, the learned trial court has passed the impugned judgment of conviction and order of sentence against the appellant under Sections 376/511 and 448 of the Indian Penal Code. 10. After hearing the learned counsel for the parties and on perusal of materials available on record, the learned trial court has passed the impugned judgment of conviction and order of sentence against the appellant under Sections 376/511 and 448 of the Indian Penal Code. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellant has preferred the present criminal appeal before this Hon''ble Court, assailing the same. 11. Heard, learned counsel for the appellant Mr. Ranjan Kumar Singh, assisted by Mr. Sumit Kumar, Advocate. 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 further submitted, that after an unexplained delay, the First Information Report has been lodged and as per the First Information Report, the occurrence took place on 28.02.2001, whereas the First Information Report has been lodged on the basis of fardbeyan of the informant on 02.03.2001. Learned counsel for the appellant has further submitted, that the version of the informant-cum-victim, P.W.-4 (whose named not being disclosed) she has only alleged that while she was sleeping with her mother on mat at around 12:00 in the night, she felt that someone is pulling her after opening her eyes, saw appellant Munna Ansari, who has dragged her out of the house by pressing her mouth with cloth and pressed her breasts. After removing the cloth, the informant raised brawl upon which the accused has fled away by taking benefit of darkness. Thereafter First Information Report could not be lodged as her father has gone out of station for negotiation of her marriage and after his return a panchayati was convened, in which the accused has not appeared and thus, the First Information Report was lodged with delay. Learned counsel for the appellant has further submitted, that while examination of the informant as P.W.-4, the victim-cum-informant has exaggerated her case by stating that the accused has dragged her in the courtyard, torned her cloth and committed sexual assault, due to which her body and cloth sustained semen, which was shown to the police officer and doctor. Learned counsel for the appellant has further submitted, that while examination of the informant as P.W.-4, the victim-cum-informant has exaggerated her case by stating that the accused has dragged her in the courtyard, torned her cloth and committed sexual assault, due to which her body and cloth sustained semen, which was shown to the police officer and doctor. Learned counsel for the appellant has further submitted, that doctor has not found all those materials as alleged by the informant nor the prosecution has submitted any report of forensic examination with regard to semen stained cloth, as alleged by the informant. Learned counsel for the appellant has further submitted, that all other witnesses except investigating officer and medical officer are hearsay witnesses but from the evidence of Afzal Karim Ansari (P.W.-6), who has stated in para 2 of his cross-examination that in the panchayati victim has only alleged that appellant, Munna Ansari has caught hold of her hand, dragged her and thrashed her in the court-yard. This witness has further stated that Basir Ansari (P.W.-3) was negotiating marriage of her daughter with Munna but the same was refused by them, as the victim is in relation to Munna Ansari as aunt. This witness has further stated that during panchayati none of the villagers have been disclosed about the occurrence, as alleged by the informant during trial. Md. Izrail Ansari (P.W.-7) has categorically stated that in the panchayati it has been only alleged that victim was dragged in the court-yard and thrashed on the ground. Jalauddin Ansari (P.W.-8) one of the member of the panchayati has stated during his examination-in-chief that Basir Ansari (P.W.-3) has called a panchayati, as two persons have entered into his house at around 11:00 P.M. and one of the accused was Munna Ansari and no decision was taken in the panchayati. Learned counsel for the appellant has thus submitted, that evidence of the informant does not generate confidence so as to convict the appellant under Sections 376/511 and 448 of the Indian Penal Code. Learned counsel for the appellant has relied upon a judgment as Tarkeshwar Sahu Vs. State of Bihar reported in , (2006) 8 SCC 560 , (Now Jharkhand), where the Hon''ble Supreme Court has held that in absence of any attempt to penetrate, conviction under Section 376/511 of the Indian Penal Code was wholly illegal and unsustainable. Learned counsel for the appellant has relied upon a judgment as Tarkeshwar Sahu Vs. State of Bihar reported in , (2006) 8 SCC 560 , (Now Jharkhand), where the Hon''ble Supreme Court has held that in absence of any attempt to penetrate, conviction under Section 376/511 of the Indian Penal Code was wholly illegal and unsustainable. Learned counsel for the appellant has further submitted, that in the First Information Report no allegation was made to constitute an offence under Section 376/511 of the Indian Penal Code and during trial the informant has tried to exaggerate prosecution case, which has not been supported by Dr. Prabha Rani Prasad, Medical Officer, P.W.-5, who has not found any mark of injury either internally or externally but the doctor has categorically stated that possibility of sexually intercourse cannot be ruled out. This witness has further stated that on microscopic examination of vaginal smear, spermatozoa was not found and no injury was found on private part of the victim and doctor has categorically stated that she cannot be said accustomed to sexual intercourse but she might have previous intercourse. Learned counsel for the appellant has further submitted, that investigating officer (P.W.-9), who has proved the thumb impression of the informant on the fardbeyan as exhibit-2, formal First Information Report as exhibit-3 and the endorsement on the fardbeyan as exhibit-4 and has categorically stated that none of the witnesses have claimed themselves to be eye witness to the occurrence. The accused has subsequently surrender before the court. Learned counsel for the appellant has further submitted, that Jalauddin Ansari (P.W.-8) has categorically stated during his examination-in-chief, that Munna Ansari was sleeping in his house when he was called for panchayati. Learned counsel for the appellant has further submitted, that case of the prosecution seems to be doubtful and full of exaggeration and on the basis of evidence collected during trial the appellant cannot be convicted for the offence committed under Sections 376/511 and 448 of the Indian Penal Code, as the prosecution party has adopted a method to file criminal case, so as to pressurize the appellant to contract marriage with Munna Ansari, which was refused by the appellant. Under such circumstances, appellant deserve to be acquitted from the charge and conviction under Sections 376/511 and 448 of the Indian Penal Code. 12. Heard, counsel for the State, Mr. Tapas Roy, Additional Public Prosecutor. Under such circumstances, appellant deserve to be acquitted from the charge and conviction under Sections 376/511 and 448 of the Indian Penal Code. 12. Heard, counsel for the State, Mr. Tapas Roy, Additional Public Prosecutor. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence has been passed on the basis of materials available on record. Learned counsel for the State has submitted, that though there is delay of two days in lodging the First Information Report but that has been satisfactorily explained by the victim. Learned counsel for the State has further submitted, that though the victim has not alleged about commission of rape by the appellant in fardbeyan but fardbeyan is not an encyclopedia of occurrence, as such, disclosure of commission of rape by the victim cannot be construed to be exaggeration of the prosecution case. Learned counsel for the State has further submitted, that doctor has found hymen old healed tear, which shows that victim was sexually assaulted. The investigating officer has also investigated the case and after finding the case true has submitted chargesheet, as such the impugned judgment of conviction and order of sentence does not warrant any interference by this Hon''ble Court. 13. Heard, the learned counsel for the appellant, Mr. Ranjan Kumar singh, assisted by Mr. Sumit Kumar, Advocate and learned counsel for the State, Mr. Tapas Roy, Additional Public Prosecutor and perused the records i.e. first information report, framing of charge, evidence of nine prosecution witnesses, four prosecution exhibits, the statement of the appellant recorded under section 313 Cr.P.C. This court has minutely scrutinized the evidence brought on record. From perusal of the fardbeyan and comparing the same with the statement of victim recorded as P.W.-4, there is vital contradictions in the prosecution case. The prosecution story has been exaggerated to the extent that it has not been found true by the medical officer, as such this Court is of the view that relying upon the statement of the victim for convicting appellant is not proper. This Court has also taken judicial notice of the evidence of other prosecution witnesses. The evidence of other prosecution witnesses are also contradictory to each other. This Court has also taken judicial notice of the evidence of other prosecution witnesses. The evidence of other prosecution witnesses are also contradictory to each other. Some of the prosecution witnesses have disclosed that two persons have entered into the house, whereas the consistent prosecution case is that appellant, Munna Ansari entered into the house of the informant and dragged the victim in the court-yard. The other prosecution witnesses have disclosed that in the panchayati nobody has said about commission of rape. Under the aforesaid circumstances, considering the admission made by the prosecution witnesses that father of the victim was trying to contract marriage of victim with the appellant, which has been refused by the appellant''s side, this Court is of the view that appellant cannot be convicted under Sections 376/511 and 448 of the Indian Penal Code, accordingly, the appellant is acquitted from the charge and conviction under Sections 376/511 and 448 of the Indian Penal Code by giving the benefit of doubt. 14. The impugned judgment of conviction and order of sentence is hereby set aside. 15. The appellant, who is on bail, is discharged from liability of his bail bonds. 16. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.