JUDGMENT & ORDER : This appeal is directed against the judgment and order dated 05/01/2015 passed by learned Asstt. Sessions Judge, Jorhat in Sessions Case No. 64(JJ)/2012. By the said judgment, the appellant was convicted u/s 376 (2) (f) IPC and sentenced to imprisonment for ten years and fine of Rs. 25,000/- with default stipulation. 2. As per prosecution case, on 21/11/2011, at about 9 a.m., when the victim was alone in her house, the accused/appellant forcibly committed rape on her. As the accused/appellant threatened the victim with dire consequences in the event of disclosing the occurrence, she did disclose the matter and therefore, the occurrence came to light belatedly. The mother of the victim lodged an FIR on 07/12/2011, on the basis of which, the police registered a case and after usual investigation submitted charge-sheet against the accused/appellant u/s 376 IPC. 3. In course of trial, charge u/s 376 IPC was framed against the accused/appellant, to which he pleaded not guilty. 13 (thirteen) witnesses were examined by the prosecution to establish the charge. On appreciation of evidence, learned trial court convicted the appellant u/s 376 IPC and awarded sentence as indicated above. 4. Aggrieved by the judgment of the learned Asstt. Sessions Judge, the accused/appellant has preferred the instant appeal. 5. Mr. J.I. Borbhuiya, learned counsel appearing for the appellant and Ms. S. Jahan, learned Addl. Public prosecutor for the State were heard. I have considered the submission made by the learned counsels as well as the evidence and materials brought on record. 6. Out of 13 witnesses examined by the prosecution, except the victim, who has been examined as PW 3, there was no other eye witness of the occurrence and learned trial court essentially relying on the testimony of the PW 3 convicted the appellant. 7. PW 3 stated in her evidence that at about 9.45 am, while she was preparing for going to school, the accused came and asked for tobacco. When she offered the tobacco, the accused caught hold her hand, removed her clothes and committed bad act with her. She tried to raise alarm but the accused gagged her mouth. After doing the bad act, while leaving the place, the accused threatened her by saying that if she discloses the matter, he will kill all members of her family. According to her, after the occurrence she went to school and became fainted. She tried to raise alarm but the accused gagged her mouth. After doing the bad act, while leaving the place, the accused threatened her by saying that if she discloses the matter, he will kill all members of her family. According to her, after the occurrence she went to school and became fainted. On being asked by her teacher Saraswati (PW 12) as to what had happened, she narrated the entire incident. She also stated, that later on, when the matter was known to all in the village, on being asked by her mother, she disclosed the matter to her mother. 8. PW 12 (Saraswati) deposed that after coming to school the victim was weeping and when she enquired the reason of her weeping, she told that one boy called “Moina” assaulted her while coming to school. This witness was declared hostile by the prosecution. PW 9, PW 10 and PW 11 were also teachers of the school, where the victim was studying. All these three witnesses have deposed that the victim on the date of occurrence came to school and she was weeping. On being enquired, she told that one boy called Moina assaulted her. All these PW 9, 10, 11 & 12 were declared hostile by the prosecution. 9. PW 2 is the mother of the victim. According to her, she came to know from Deepamoni Bora (PW 5) that there was rumor in the village regarding the accused misbehaving the victim. On being asked by her, Deepamoni Bora advised PW 2 to meet the teachers of the school, who were stated to be aware of the fact. Accordingly, she went to the school, where she met Renu Rani Das (PW 9). PW 9 told her that on being asked by her (PW 9), the victim, told regarding the accused misbehaving with the victim. Having come to know about the occurrence from the PW 9, when she asked the victim, the victim told that while she was alone in the house before going to school, the accused came and did bad act with her after removing her pant. She informed the matter to her husband and lodged the FIR (Ex1). During cross-examination she stated that the school starts at 9 O’clock and the children start going to school from 8.30 am. 10. She informed the matter to her husband and lodged the FIR (Ex1). During cross-examination she stated that the school starts at 9 O’clock and the children start going to school from 8.30 am. 10. PW 7, the sister of the victim, stated that after coming to know about the occurrence from Deepamoni Bora (PW 5) on 7th December, she went to the school and came to know details of the occurrence from the teachers. Again she stated that her mother told her about the occurrence. 11. PW 4, PW 5 & PW 6 stated that there were village “Mel” on 7/12/11 to discuss the issue and the village Mel was presided over by PW 8. They also stated that village Mel continued till 8.30 PM at night and as per the decision of the village Mel, the FIR was lodged by PW 2 on the next day. However, PW 8 stated that no village Mel was held under his Presidentship. According to him, PW 2 informed him on 07/12/2011 that the accused misbehaved with her daughter and also outraged her modesty. He then advised her to arrange a meeting of 10-15 villagers. However, no such meeting was held. He also stated that later on he came to know, that as the PW 2 decided to lodge FIR, no meeting was arranged. The testimony of PW 8 seems to have negated the evidence of PW 4, PW 5 and PW 6 regarding holding of village Mel and lodging of the FIR, as per the decision of the village Mel. Evidently the FIR was lodged on 07/12/2011 at about 7.30 p.m. The fact that the FIR was lodged on 07/12/2011 at about 7.30 pm and the testimony of PW 8 that no such village was held as the informant decided to lodge the FIR belies the testimony of PW 4, PW 5 and PW 6 regarding holding of a village Mel, and therefore, the testimony of the PW 4, PW 5 & PW 6 that FIR was lodged as per decision of the village “Mel” is hardly convincing. 12. What therefore, transpires from the testimony of all the above witnesses is that all other witnesses, except the victim, were the reported witnesses. Admittedly the occurrence took place on 21/11/2011 and immediately after the occurrence, the victim disclosed about the occurrence to her teachers, PW 10, PW 11 and PW 12. 12. What therefore, transpires from the testimony of all the above witnesses is that all other witnesses, except the victim, were the reported witnesses. Admittedly the occurrence took place on 21/11/2011 and immediately after the occurrence, the victim disclosed about the occurrence to her teachers, PW 10, PW 11 and PW 12. It is also evident that others came to know from the school teachers, to whom the victim disclosed about the occurrence. It is no doubt true, that all the school teachers, i.e., PW 9, PW 10, PW 11 and PW 12 were declared hostile by the prosecution. It is the settled position, that the testimony of a witness does not get washed off, merely because of declaring them hostile by the prosecution. If the testimony of a hostile witness is found to be reliable and consistent with other evidence, there is no bar in relying on such testimony. The statement of PW 10, PW 11 and PW 12 recorded u/s 161 CrPC were proved through the PW 13, the investigating officer. Although the prosecution disowned the testimony of PW 9, PW 10, PW 11 and PW 12, to whom the victim informed about the incident immediately after the occurrence, their testimony before police recorded u/s 161 CrPC and the evidence before the court appears to be more or less consistent, inasmuch as, in their statement before police also PW 10, PW 11 and PW 12 stated that on being asked by them, the victim told regarding one boy “Moina” assaulting her and doing bad act with her. What is therefore apparent is that the victim did not tell before her teacher (PW 9, PW 10, PW 11 & PW 12) regarding the accused person committing rape on her, rather she narrated a different story to them. Although PW 2 and PW 7, the mother and sister of the victim, stated that they came to know about the occurrence from PW 5 and PW 5 stated to have learnt about the occurrence from PW 9, the teacher of the school, PW 9 has not supported the version of the PW 2, PW 3 & PW 7. 13. Although PW 2 and PW 7, the mother and sister of the victim, stated that they came to know about the occurrence from PW 5 and PW 5 stated to have learnt about the occurrence from PW 9, the teacher of the school, PW 9 has not supported the version of the PW 2, PW 3 & PW 7. 13. It is evident from the testimony of PW 2 as well as PW 9 and PW 10 that the school begins at 9 O’clock and prayer is held at 8.45 a.m. It is also evident that the house of the victim is at a distance of 5.00 metres from the school. When admittedly and evidently the school of PW 3 starts at 9 O’clock and prayer begins at 8.45 am and admittedly PW 7, sister of the victim already went to school, the testimony of the victim that while she was preparing to go to school at 9.45 am, the accused came there, appears to be hardly convincing and worthy of inspiring confidence. 14. PW 1, the doctor who examined the victim did not find any injury on her body and on examination of the genital, the doctor found as follows :- “Pubic hair-not present. Vulva-No injury. Labia majora. Labia minora. Vagina –No injury. Hymen intact. No sign of penetration. Cervix- No injury. Perineum –no injury. Anus anal canal- No injury. Vaginal smear – slide sent for spermatozoa count. Slide is handed over to …. Radiological report-X-Ray report-proximal & distal epiphysis of radius & ulna are not fused. -epiphysis of humeral head not fused. -B/L femeral heads and trochanter are not fused. -epiphysis of lower end of humerous are not fused. -Ephysis ofiliac crests and ischal tuberosities not visualized. -Laboratory examination - -Vaginal smear exam-no spermatozoa seen in the smear examined. Opinion –(i) Her age is below 14 yrs. (ii) No evidence of violence marks detected on her private parts/body at the time of medical examination. (iii) No sign of forceful penetration detected on her private parts during medical examination. (iv) No evidence of recent sexual intercourse detected on her person as per pathology report dtd. 10.12.11. 15. The testimony of the doctor was not controverted by the defence. (ii) No evidence of violence marks detected on her private parts/body at the time of medical examination. (iii) No sign of forceful penetration detected on her private parts during medical examination. (iv) No evidence of recent sexual intercourse detected on her person as per pathology report dtd. 10.12.11. 15. The testimony of the doctor was not controverted by the defence. The evidence of the doctor with regard to absence of any injury on private part and the hymen remaining intact and having not found any sign of penetration, casts a shadow of doubt on the testimony of PW 3, the victim as regards the sexual intercourse or rape. Thus, uncontroverted medical evidence is found to have completely ruled out the probability of sexual intercourse, and also lent support to the version of PW9, PW 10, PW 11 and PW 12, that the victim did not state about the accused committing rape on the victim, rather, she only told about assault by a boy called Moina. 16. Evidently the occurrence took place on 21/11/2011 and the FIR was lodged on 07/12/2011. The counsel for the appellant submitted that the delay of about more than 15 days in lodging the FIR is fatal for the prosecution in the instant case inasmuch as, the delay had not been properly explained. It is no doubt true, that mere delay in lodging the FIR, more particularly in a case of sexual assault involving unmarried girl, by itself cannot adversely affect the prosecution case. Delay in lodging the FIR may be caused for various reasons and the explanation for such delay can be given by the prosecution and it can also be inferred from the facts and circumstances of the case. It is not necessary that in all cases prosecution has to specifically explain the cause of delay, if the cause of delay can be discernible from the evidence brought on record and the facts and circumstances of the case, the burden of the prosecution to explain the delay stands discharged. 17. In the instant case, it has been stated in the FIR that the occurrence came to light belatedly as the victim did not disclose the matter because of threat given by the accused and therefore, there was delay in lodging the FIR; whereas, from the evidence of PW 3 herself, it appears that immediately after the occurrence, she informed her teachers about the occurrence. It is also evident from the testimony of PW 2 and PW 7, the mother and sister of the victim, that the matter was already known to the villagers from the school teachers and they only came to know from the school teachers and got it confirmed from the victim. When the victim disclosed to the strangers about the occurrence in spite of threat of the accused, immediately after the occurrence, it is not understandable, why she did not inform her mother or other members of the family and more particularly the PW 7 being the elder sister. It is also surprising that PW 7 could come to know about the occurrence from PW 12 only on the day of lodging FIR. PW 2 has not stated in her evidence as to when she came to know about the incident for the first time. Therefore, the explanation given by the informant that lodging of the FIR was due to not disclosing the matter by the victim does not appear to be worthy of inspiring confidence in the facts and circumstances of the case. PW 4, PW 5 and PW 6, though, stated that there were village “Mel” and it is only as per the decision of the village Mel, the FIR was lodged, such evidence had already been discarded for the reasons stated above. 18. Although the victim stated elaborately in her statement u/s 164 CrPC regarding the accused committing sexual intercourse with her and having sustained injury for such sexual assault, such testimony of PW 3, the victim, is found to have been belied by the medical evidence of PW 1. Thus, the medical evidence negating any forcible penetration or sexual intercourse on the victim, inordinate delay of 15 days in lodging the FIR without proper explanation and testimony of PW 10, PW 11 and PW 12 to whom, the victim narrated a different story and the victim not disclosing anything to the PW 2 & PW 7, her mother and own sister, rendered the testimony of the victim unreliable and unworthy of placing reliance. 19. It is no doubt true, that in a case of sexual assault, primary importance is required to be given to the testimony of the victim and conviction can be based on the sole testimony of the victim, unless there are compelling circumstances requiring the court to seek corroboration. 19. It is no doubt true, that in a case of sexual assault, primary importance is required to be given to the testimony of the victim and conviction can be based on the sole testimony of the victim, unless there are compelling circumstances requiring the court to seek corroboration. Be that as it may, the ultimate test to rely on the testimony of a witness is whether the testimony of such witness is believable and inspiring confidence. If the prosecutrix or the victim of sexual assault is not found to be reliable, no conviction can be based on the sole testimony of such witness for the simple reason that the basic principle of administration of criminal justice that prosecution has to prove the guilt of the accused beyond all reasonable doubt equally applies in the case of sexual assault too. Presumption of innocence of the accused, unless his guilt is proved does not get forfeited in a case of sexual assault. The Apex Court in Raju & Others -Vs- State of Madhya Pradesh, (2008) 15 SCC 133 , dealing with the necessity of careful scrutiny of the solitary witness observed as under :- “11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration." 20. In the facts and circumstances of the case as discussed hereinbefore, the victim (PW 3) can by no stretch of imagination be considered as a witness of starling quality for basing conviction on her sole testimony. In the facts and circumstances of the case as discussed hereinbefore, the victim (PW 3) can by no stretch of imagination be considered as a witness of starling quality for basing conviction on her sole testimony. Thus, unreliability of the testimony of the PW3, the victim, coupled with the evidence of PW 9, PW 10 & PW 11, to whom the victim stated a different story at the first instance, medical evidence totally ruling out the factum of sexual intercourse, and inordinate and unexplained delay of 15 days in lodging the FIR, cast serious doubt on the prosecution case, for which the accused is at least entitled to the benefit of such doubt. 21. For the reasons stated above, the conviction and sentence of the accused is not sustainable. Accordingly, the appeal is allowed and the conviction and sentence of the accused/appellant is set aside. Accused/appellant be released and set at liberty if not required in any other case. 22. Send back the LCR.