JUDGMENT : This appeal is directed against the judgment of conviction and order of sentence dated 14th August, 2003 passed by Additional Judicial Commissioner, Fast Tract Court-9, Ranchi in Sessions Trial No.269 of 2002 holding the appellant guilty under Section 376 of the Indian Penal Code and sentencing him seven years of rigorous imprisonment. 2. The prosecution case on the basis of the written report of the informant-victim, in short, is that she is residing with her elder brother Anup Toppo in the house of his uncle Matiash Toppo and aunt Anjela Khalkho and studying in Janta High School, Patra Chauli in Class-IX. Further case is that on 26.07.2001 at about 8.40 a.m. she started for the school. When she reached near Ranchi Lohardagga line which was at about 500 yards of North of Adchero forest at 09:00 a.m then suddenly Alam Ansari son of Allauddin Ansari of village Adchero came and pressed her mouth and dragged her to the nearby bushes. She tried to raise alarm but he closed his mouth and thrown her on the ground and committed rape upon her. She resisted him by biting on his lower lip and fingers of his left hand even then he did not left her and continued to commit rape on her. After incident, she returned to her home. She left her school bag and Hawai Chappal as well as underwear pant at the place of occurrence. When she reached her residence, no family members were there as they had gone to work in the field. When they returned to home she informed the occurrence to her aunt Anjela Khalkho and then it was known to the other family members. Since it was night and the Police Station was at a distant place from village, therefore, they could not go to the Police Station. Today in the morning they came to the Police Station along with her uncle and villagers and gave this written report with a prayer to take legal action against the accused. 3. Accordingly Ratu (Nagari) P.S. Case No.99 of 2001, corresponding to G.R. No.2081 of 2001 was registered under Section 376 of the Indian Penal Code and formal F.I.R. was drawn against sole accused Alam Ansari. 3. Accordingly Ratu (Nagari) P.S. Case No.99 of 2001, corresponding to G.R. No.2081 of 2001 was registered under Section 376 of the Indian Penal Code and formal F.I.R. was drawn against sole accused Alam Ansari. After investigation, charge-sheet was submitted and after commitment of the case, charge under Section 376 of the Indian Penal Code was framed upon sole appellant to which he denied and claimed to be tried. 4. During trial altogether six witnesses were examined on behalf of the prosecution but no oral or documentary evidence were adduced by the side of the defence. P.W.1 Anima Toppo, victim as well as informant of this case stated that the occurrence is of 26.07.2001 while she was studying in Janta High School, Patra Toli in Class IX. On that day while she was going to school at about 8.40 a.m. and reached near Adchero forest then accused Alam Ansari, who was hiding himself in Adchero, suddenly dragged the informant into the bush. After throwing her on the ground, he committed rape upon her. She tried to raise alarm but he pressed her mouth. That was a lonely place. She tried to resist and in that sequence she bite his fingers. She further stated that accused fled away after committing the occurrence. She also left the school bag and Hawai Chappal at the place of occurrence. She returned to home and disclosed this fact in the house. Since it was night so next day she went to Police Station along with her uncle where her statement was read over by Daroga Jee. Her statement was written by Daroga Jee and after reading it she signed over it. She recognized her signature which has been marked as Ext.1. She recognized accused Alam Ansari present in the Court. This witness was discharged as the defence lawyer declined to cross-examine but the same was recalled on 22.08.2002. Her cross-examination resumed where she replied that several children of the village go to school and all are going school mostly on time. She further stated that there is only one road from village to her school which passes through Adchero forest. The children have also gone to the school on that day but Manju Kachhap has crossed the place before the occurrence. She also stated that she was not knowing Alam Ansari before the incident. She further stated that there is only one road from village to her school which passes through Adchero forest. The children have also gone to the school on that day but Manju Kachhap has crossed the place before the occurrence. She also stated that she was not knowing Alam Ansari before the incident. She also narrated about the manner of incident of forcefully committing the rape. While she was returning to home around 20-25 lady villagers met but they had not seen the occurrence and she does not know their names. After returning home, she went to sleep after changing the dress. Her aunt returned in the evening at around 6.00 p.m. Next day in the morning without taking bath she went to Police Station. Her uncle and about 8-10 villagers had also accompanied. Police have recorded her statement in the Thana and application was given by her brother but she did not remember his name. The application which was given by her brother she had signed upon it but who else had signed on that paper, she was not aware. She also denied the suggestion that accused has not committed rape nor any attempt was made. She also denied that the accused was known to her as he refused to marry her then she implicated him in this case. P.W.2 is Matiash Toppo who is uncle of victim has supported the prosecution version. He stated that when he returned at about 8-9 p.m. to his residence after working in the field then he heard about the incidence from Anjala. At that time it became night, therefore, next day about 6.00 a.m. they went to Police Station where victim had given statement before Police. That was read over to her then she had signed. He recognized the accused in court. This witness was also discharged as the defence lawyer declined to cross examine but after recall this witness was examined who stated that his daughter also used to go to school with the victim but on the date of incident she had gone early with the victim. He admitted that he got information from his wife. After lodging the case they went to place of occurrence with Daroga Jee. He and Swapan Tigga went on a Bullet motorcycle. He admitted that he got information from his wife. After lodging the case they went to place of occurrence with Daroga Jee. He and Swapan Tigga went on a Bullet motorcycle. He also stated that he was knowing the accused Alam Ansari before the incident but he had never visited his residence and he is known as Badmash of that area and went to jail several times. He also stated that his evidence was recorded by the Police and denied the suggestion that victim was in love affair with the accused and due to this reason he has been falsely implicated in this case. P.W.3 Anjela Khalkho wife of P.W.2 Matias Khalko and aunt of P.W.1 deposed in the similar manner about the occurrence of rape and it was disclosed to her then she informed her husband next day. The victim along with other villagers went to Police Station. She also recognized accused. During cross examination, she admitted that she has not seen the occurrence whatever the victim has stated before this court. She was not knowing the accused before the incidence. She stated that her daughter Anima Toppo is also student of that school. On that day, she had gone earlier before the victim and this witness went to her field at around 7.00 p.m. Her statement was recorded by the Police. She has not gone to Police Station but Police has recorded her statement. She denied the suggestion put by the defence counsel. P.W.4 Naresh Mohan Jha is Investigating Officer of this case. He was posted at Ratu Nagri O.P. on 27.07.2001, and on that date he got written report written by Swapan Toppo signed by Anima Toppo by S.I. Natwar Singh who has given him the charge of investigation. The endorsement of the then Officer-in-Charge M.R. Mehta on the F.I.R. was proved and it was marked Ext.2 and written report in the handwriting of Swapan Toppo was marked as Ext.1/1. He further stated that during investigation he inspected the place of occurrence which is near the Adchero forest and a Pagdandi was going within the seven yards and bushes were there near Jamun tree near the Ranchi Lohardagga railway line where the accused said to have committed rape upon victim. He further stated that during investigation he inspected the place of occurrence which is near the Adchero forest and a Pagdandi was going within the seven yards and bushes were there near Jamun tree near the Ranchi Lohardagga railway line where the accused said to have committed rape upon victim. He also stated that at the place of occurrence some marks of resistance were found from the place of occurrence and Hawai Chappal and school bag of the victim were found which was seized by him and seizure list was prepared. He did not find any under pant of the victim as it was taken away by the accused. He also narrated about the periphery of the place of occurrence. The victim was sent for medical examination where Dr. Ragni Minz had conducted the medial examination and submitted the report. After finding the case true and after approval of the senior officers, charge-sheet was submitted in the court. During cross-examination this witness has stated that victim was accompanied by her uncle Matiash and Swapan Toppo. Swapan Toppo has not recorded the statement of victim before him as it was already written. Although he is not a handwriting expert but he knows that it was written by Swapan Toppo, but he has not signed on the written report and his statement was also not recorded during the investigation. He also replied that the seizure list was prepared at the time of inspection of the place of occurrence but presently it is not found in the case diary. The seized articles were handed over to the victim on the same day. He does not remember who were witness of the seizure list. It was prepared at the place of occurrence and their statements were also not recorded during investigation. He denied the suggestion that no seizure list was prepared and the diary was written at the Police Station and without any evidence charge-sheet has been submitted. P.W.5 Anup Toppo is brother of victim who has stated that while the victim was going to school, the occurrence took place and after return she informed the family members. He recognized the accused who is present in the court. He stated that his statement was recorded by the Police. During cross-examination, he has stated that victim is her own sister and the incident could be known through her aunt. He recognized the accused who is present in the court. He stated that his statement was recorded by the Police. During cross-examination, he has stated that victim is her own sister and the incident could be known through her aunt. He stated that the residence of accused Alam Ansari is in another village which is at a distance of about four kilometers and due to this reason he recognized the accused. He denied the suggestion that no rape was committed upon her sister and due to some Bataiadari dispute he has been falsely implicated in this case. P.W.6 Robert Toppo is an Advocate Clerk and a formal witness who has proved Jakhm Prativedan (injury report) in the handwriting and signature of (Mrs.) Dr. Ragini Minz which was marked as Ext.3. The statement of accused was recorded under Section 313 of the Cr.P.C. 5. Learned counsel for the appellant assailing the judgment of conviction submitted that the statement of victim is not reliable as her conduct was not normal as she slept after returning home. It was known to her that the family members were working in the field but she did not approach them and informed the incident immediately, rather she waited for return of their family members and then in the evening they got the knowledge of the occurrence. He further submitted that as per the prosecution evidence there is only one road for going to school but nobody had seen the occurrence. As per the version of the victim girl her school bag, Hawai Chappal and under pant were left over at the place of occurrence and the Investigation Officer (P.W.4) has stated that the seizure list was prepared at the time of inspection of place of occurrence. But neither the seizure list was produced before the court and bag and Chappal was immediately returned to the victim which cast doubt on the preparation of seizure list by the I.O. During cross-examination, the I.O. has stated that under pant of the victim was being taken by the accused, but how it came to his knowledge, has not been disclosed by him. Learned counsel also submitted that as per the allegation, victim had given tooth bite on the body of accused but no medical examination of the accused was done even after he remained in custody. Learned counsel also submitted that as per the allegation, victim had given tooth bite on the body of accused but no medical examination of the accused was done even after he remained in custody. He also submitted that as per evidence of victim her statement was recorded by the Police whereas Investigating Officer has deposed that he got written report which was written by Swapn Toppo and signed by victim. Therefore, there is difference in the statement of the victim and Investigating Officer on this score. He also submitted that the victim has admitted that she was not knowing the appellant but in the written report and in the F.I.R. accused has been named which also cast doubt over the prosecution story. Lastly he submitted that although the medical report is not proved by the Doctor but it has been brought on record through a formal witness P.W.6 Robert Toppo who is an Advocate Clerk, therefore, reliance cannot be placed on it. Even assuming the report i.e., Ext.3 to be true then it would be apparent that the Doctor has found old raptured hymen admitting two fingers. No injury on her private part or on her body was found. No stain on her private part or on her clothes were found. No spermatozoa was detected in the pathological test and as per her opinion no positive evidence of rape was found at the time of examination which was done on 27.07.2001 at 02:50 p.m. although report was submitted on 04.08.2001. In these circumstances, the medical examination report of victim falsify the prosecution version of commission of rape. 6. Learned A.P.P. appearing on behalf of the State submitted that to maintain the dignity of the family generally some delay occurs but on the next day the case was lodged. He further submitted that the statement of victim was supported by his own uncle P.W.2 and P.W.3, P.W.5 and P.W.4, the Investigating Officer. There is sufficient material to convict the appellant. He also submitted that although no injury in the private part has been found but it cannot be a ground that the rape has not been committed upon the victim. 7. There is sufficient material to convict the appellant. He also submitted that although no injury in the private part has been found but it cannot be a ground that the rape has not been committed upon the victim. 7. Considering the above submissions of the parties and going through the evidence and connecting documents and on their scrutiny, it appears that as per statement of victim her statement was recorded at Police Station when they went next day of the occurrence but as per the evidence of Investigating Officer-P.W.4 he has specifically stated that it was written by Swapan Toppo and the signature of victim was there. The signature of scribe is not on the written-report. The Police at the time of inspection of place of occurrence had prepared a seizure list which was never produced before the court nor the material seized were produced and surprisingly in what circumstance the Investigating Officer has returned those articles i.e., school bag and Chappal immediately to the victim. The evidence of the Investigating Officer on the point of taking away of under pant of victim by the accused without any cogent reference also appears to be doubtful. These are improvements made during evidence. The evidence of victim that she was not knowing the name of appellant but the name of appellant found place in the written-report as well as in the F.I.R. which also cast doubt. Although the formal witness has proved Ext.3 but the same has not been properly brought on the record. Counsel for the appellant although referred the report which indicate towards the non-commission of the occurrence. Therefore, in such circumstances, the appellant deserves the benefit of doubt. Therefore, in these circumstances appellant Alam Ansari is given benefits of doubt. The judgment of conviction dated 14.08.2003 passed in S.T. No.269 of 2002 and the sentence awarded thereunder are set aside modified and the accused is given benefits of doubt. 8. In the result, this appeal is allowed. 9. Since the appellant is on bail, therefore he is discharged from the liabilities of his bail bond. 10. Let the Lower Court Records be sent back to the court concerned along with the copy of the judgment.