JUDGMENT Ravindra Maithani, J. (Oral) Appellant Abhishek Tiwari @ Kishmish preferred Criminal Appeal No.387 of 2018, against the judgment and order dated 30.08.2018, passed in Sessions Trial No. 118 of 2016, State Vs. Abhishek Tiwari and Others. By the impugned judgment and order, appellant Abhishek has been convicted of the charges under sections 376 and 302 IPC and sentenced as hereunder:- “(i) Life imprisonment and a fine of Rs.40,000/- under Section 376 IPC. In default of payment of fine, simple imprisonment for a further period of one year. (ii) Life imprisonment and a fine of Rs.40,000/- under Section 302 IPC. In default of payment of fine, simple imprisonment for a further period of one year. All the abovementioned sentences shall run concurrently." 2. This is a story of brutal sexual assault on an old lady of 70 years. She could not survive and died, while under treatment. It all happened on 24.03.2016. The victim was staying with her son-in-law, PW1. PW1, son-in-law of the victim and his wife PW2, had gone out from their house to celebrate the festival of Holi. When they returned at about 11:00 AM, they saw the appellant and two others bringing the victim from the fields. As soon as they saw PW1, son-in-law of the victim, they dropped the victim and ran away. The victim was under great pain and distress and she told to PW1, her son-in-law, that the appellant and two others forcibly raped her. The victim was taken to hospital, but during treatment, she died. A report of the incident was lodged by PW1, son-in-law of the victim at 09:57 AM on the same day, based on which, the case was lodged. Inquest was prepared on 25.03.2016 at 10:00 AM by PW10 Ramesh Chandra Bhatt. Post mortem of the victim was conducted on 25.03.2016 at 02.10 PM. In fact, when taken to hospital, on 24.03.2016 at 04:10 PM in the hospital, PW8 Durgesh Kumar had examined the victim and referred her to the district hospital, where PW9 Sonali Mandal had examined the victim. Their statement would be referred to in a short while. Investigation was carried out. Investigating Officer took into custody the clothes of the victim and of the appellant. They were sent for forensic examination. The forensic examination report concludes that blood was detected on the clothes recovered from the victim. Their statement would be referred to in a short while. Investigation was carried out. Investigating Officer took into custody the clothes of the victim and of the appellant. They were sent for forensic examination. The forensic examination report concludes that blood was detected on the clothes recovered from the victim. There was no report with regard to the DNA match. After investigation, chargesheet was submitted against appellant and two others. Cognizance was taken. 3. On 16.08.2016, charges under sections 376-D and 302 r/w 34 IPC were framed against the appellant and two others, to which, they denied and claimed trial. 4. The prosecution, in order to establish the case, examined as many as fourteen witnesses, namely, PW1, son-in-law of the victim, PW2, daughter of the victim, PW3 Sunil, PW4 Jata Shankar, PW5 Rajkumar, PW6 Rajendra, PW7 Dr. Praveen Kumar Srivastava, PW8 Durgesh Kumar, PW9 Sonali Mandal, PW10 Ramesh Chandra Bhatt, PW11 R.C. Makholia, PW12 Manish Upadhayay, PW13 Harish Arya and PW14 Anita Saini. 5. Appellant and two others were examined under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code'). According to the appellant and two others, they are innocent and have been falsely implicated. 6. After hearings the parties, based on the evidence, the learned court below, by the impugned judgement and order, acquitted the two other co-accused, but, convicted and sentenced the appellant, as stated hereinbefore. Aggrieved, the instant appeals. 7. Heard learned counsel for the parties and perused the record. 8. Learned counsel for the appellant would argue that the statement of PW1, son-in-law of the victim and PW2, daughter of the victim are contradictory, inconsistent and wavering. They are not fully supporting FIR, which was lodged by PW1, son-in-law of the victim. It makes their statement wholly unreliable. According to the prosecution, there was lot of crowd on the spot, but no independent witness has been examined. The first informant PW1, son-in-law of the victim, himself has not supported the FIR. The scribe of it has not been examined. It also casts doubt on the prosecution story. FIR is delayed, because according to witnesses, the Police had reached at the spot, soon after the victim was found, but despite that the FIR was lodged almost after nine hours. There is no explanation for it. It makes the entire prosecution case doubtful. 9. It also casts doubt on the prosecution story. FIR is delayed, because according to witnesses, the Police had reached at the spot, soon after the victim was found, but despite that the FIR was lodged almost after nine hours. There is no explanation for it. It makes the entire prosecution case doubtful. 9. Learned counsel for the appellant would argue that prosecution has not been able to prove the charges against the appellant. Therefore, appellant deserves to be acquitted and appeal allowed. 10. On the other hand, learned State counsel would argue that PW1, son-in-law of the victim named the appellant as an assaulter. He was told about it by the victim, when she was found in an injured condition and was shifted to the hospital. Statement of PW1, son-in-law of the victim has been corroborated by the statement of his wife PW2, daughter of the victim. Their statements find corroboration with the medical report. Injuries were noted by the doctor when the victim was medically examined and the doctor opined that the victim was sexually assaulted. It is argued that the case is proved and no interference is warranted in this appeal. 11. There are two witnesses, who named appellant. PW1, son-in-law of the victim and his wife, PW2. The victim was old aged lady, who was staying with them at the relevant time. It was the festival day of Holi. According to PW1, he along with his wife had gone to celebrate the festival of Holi and on their return at about 11:00 AM, they noticed that the appellant with two others, were bringing the victim back to his home. As soon as the appellant and his companions noticed the arrival of PW1 and his wife, PW2, they dropped the victim in their courtyard and ran away. The victim was under great pain and distress. A lot of people gathered there. The victim had told it to PW1 and his wife, PW2 that the appellant raped her. She was shifted to hospital, where during treatment, she died. PW2, daughter of the victim, has also corroborated the statement of PW1, her husband. 12. PW3 Sunil, PW4 Jata Shankar, PW5 Rajkumar and PW6 Rajendra are witnesses to the inquest. It is PW10 Ramesh Chandra bhatt, who prepared the inquest. PW14 Anita Saini has also stated about the inquest. 13. PW8 Dr. PW2, daughter of the victim, has also corroborated the statement of PW1, her husband. 12. PW3 Sunil, PW4 Jata Shankar, PW5 Rajkumar and PW6 Rajendra are witnesses to the inquest. It is PW10 Ramesh Chandra bhatt, who prepared the inquest. PW14 Anita Saini has also stated about the inquest. 13. PW8 Dr. Durgesh Kumar was posted in the hospital, where, the victim was taken after the incident. According to this witness, the victim was in unconscious state. It was told that she was raped. He gave primary treatment and referred her to the district hospital. He proved the medical examination report conducted by him, which is Ex.A3. It may be mentioned at this stage that, according to this medical examination report, the victim was taken to this hospital at 04:10 PM on 24.03.2016. At the time of argument, it is told that the distance of the place from where the victim was taken to the place where this hospital is maximum 10 KMs because it is within the campus of university. 14. PW9 Dr. Sonali Mandal medically examined the victim in the district hospital. She has stated about the report, which she prepared. Slides were also taken but, spermatozoa was not found. There were injuries. PW9 Dr. Sonali Mandal proved the medical reports, which are Ex.A4 and Ex.A5. According to it, though no spermatozoa was found, but there was physical assault on the victim. In fact, PW8 Durgesh Kumar, in his medical examination report has recorded that there was laceration and bruises over the anal region; bleeding from the perianal area. 15. PW11 R.C. Makholia is the first Investigating Officer, who arrested the appellant, took into custody the clothes and prepared the site plan. PW12 Manish Upadhyaya concluded the investigation and submitted the chargesheet. 16. FIR in this case is definitely delayed. Delay in the FIR in every case of sexual assault does not make the prosecution story doubtful, for various reasons, firstly, the fear of social ostracism, and secondly, if the victim was injured, time taken for giving her treatment. Whether the delay of lodging the FIR been reasonably explained by the prosecution in this case? Delay in the FIR in every case of sexual assault does not make the prosecution story doubtful, for various reasons, firstly, the fear of social ostracism, and secondly, if the victim was injured, time taken for giving her treatment. Whether the delay of lodging the FIR been reasonably explained by the prosecution in this case? According to the FIR, when, after celebrating the festival of Holi, PW1, the son-in-law of the victim and his wife, daughter of the victim returned to their house, they spotted the appellant and two more persons bringing his mother-in-law i.e. the victim towards his house. They dropped her and ran away. At that point of time, the victim revealed the name of appellant and two others, who raped her. But, in his examination before the court, PW1, son-in-law of the victim has not supported this FIR in its entirety. What he states is that when appellant dropped the victim in his courtyard, the victim revealed that it is the appellant alone, who committed rape upon her. According to PW1, the victim did not name other two persons Akhtar Beg and Zahid Khan, as the persons, who assaulted her. PW1 states in his examination-in-chief that victim had told it to him that in fact, Zahid and Akhtar Beg had rescued her. This is, in fact, not in consonance with the FIR. According to FIR, the victim had told it to PW1 that appellant and two other persons raped her. But, again, the law of appreciation of evidence, in this country permits that even if a part of statement is found to be untrue, the entire statement should not be discarded of, instead, the statement, which appears to be true, has to be considered and the statement which is not found to be true, has only to be discarded of. 17. What was told by the victim to her son-in-law, PW1, when she was found? Where was PW1, when this incident occurred and where was his wife, PW2? PW2, the daughter of the victim, in her examination-in-chief corroborated the statement of PW1, but when cross-examined, she told that, in fact, on that day, she went to celebrate the festival of Holi and returned within 10 to 15 minutes and at the time of incident, she was at home with the children. PW2, the daughter of the victim, in her examination-in-chief corroborated the statement of PW1, but when cross-examined, she told that, in fact, on that day, she went to celebrate the festival of Holi and returned within 10 to 15 minutes and at the time of incident, she was at home with the children. She further states that when this incident occurred, her husband was not in home and she went to call him back. This is in contrast to the statement of PW2, daughter of the victim, given in her examination-in-chief and this statement is also contradictory to the statement of her husband, PW1. If with her four children, they were at home, how the victim disappeared? Why was there a crowd? Although, based on conduct, no inference should be drawn, for the simple reason, because different people react differently under same circumstances. But, here is a case, according to the prosecution, where the appellant was bringing her back after the incident. Why appellant would have done so, if he had committed sexual assault with the old lady of 70 years? Who saw the appellant for the first time bringing the victim because, according to the prosecution, there was a lot of crowd. In fact, according to PW1, son-in-law of the victim, he heard the noise from about 300 meters. Then, he felt that something had happened, crowd had gathered and after hearing the noise, PW1, returned to his house. What did he see? Where the appellant and others were waiting him to come back? It creates doubt on the statement of PW1, son-in-law of the victim and his wife, PW2. Their statements are wavering and not consistent. 18. There is another aspect of the matter. PW1, son-in-law of the victim, in his statement, at one stage of cross-examination, would say that somebody got the report typed. He simply signed it. At other stage, he has stated that he got the FIR written by Rajendra, his brother-in-law. The fact remains that the FIR which was proved by PW1, was not handwritten. It was typed. Who typed it? Where is the handwritten report? The scribe of FIR has not been examined. He would have been in a position to further examine the things. PW1, son-in-law of the victim did not fully supported FIR. The fact remains that the FIR which was proved by PW1, was not handwritten. It was typed. Who typed it? Where is the handwritten report? The scribe of FIR has not been examined. He would have been in a position to further examine the things. PW1, son-in-law of the victim did not fully supported FIR. In FIR, three persons are named as assaulter, but PW1 in court states that only the appellant assaulted the victim and other two had rescued her. He also states that at the instance, of some person from the crowd he had written the name of other two persons in the FIR. It makes the FIR doubtful. 19. According to PW1, son-in-law of the victim, when the victim was dropped at by the appellant and others, in his courtyard, he immediately called the security guard and ambulance. These timings are very important. Although, some differences in time may not be fatal. After all, a man cannot be expected to look at a watch and remember it while deposing, before the court. The offence is, infact, much heinous, but then prosecution has to prove as to who did it? If at 11:00 AM, the victim was taken to hospital, which was within 10 KM radius, how could they reach the hospital at 04:10 PM, as stated by PW8 Dr. Durgesh Kumar. What happened in these five hours? It also makes the case little doubtful as to what had happened on that day. 20. There is another aspect related to it. According to PW1, son-in-law of the victim, he had called security office and then Police had come and his wife, PW2 says at page 5, paragraph 2 of her statement, that Police was telephoned and Police had reached at the spot and the entire story, was narrated to them. If Police had come immediately after the victim was found at about 11 AM and told about the incident, why was FIR lodged late in the evening? What Police did, when reached at the spot? Why victim was taken to hospital, which was at a distance of less than 10 Km, after 5 hours? All these questions are unanswered. They create a lot of doubt in the reliability of the FIR and prosecution case. 21. As stated, PW8 Durgesh Kumar is the person, who medically examined the victim. Why victim was taken to hospital, which was at a distance of less than 10 Km, after 5 hours? All these questions are unanswered. They create a lot of doubt in the reliability of the FIR and prosecution case. 21. As stated, PW8 Durgesh Kumar is the person, who medically examined the victim. According to medical examination report, there was laceration and bruises over anal region; bleeding in perianal area, which was covered by cloth. The victim was not well responding. It is recorded in medical examination report, Ex.A3 that she was brought to the hospital with a case of sexual assault by some persons and what is more important is as to who were those persons, but, it is not recorded in this report. 22. PW9 Dr. Sonali Mandal, when asked in her cross-examination, would tell that she was informed that the victim was sexually assaulted, but, according to her, the name of the person, who committed rape was not revealed to her. Why? In which ambulance was the victim taken? It becomes important under the facts and circumstances, because here is an FIR, which names three persons, but in court, the first informant himself, who happens to be the son-in-law of the victim, does not confirm the FIR. What PW1, son-in-law of the victim says, as stated hereinbefore also, is that the victim had told it to him that only appellant committed sexual assault and the victim further told it to him that other two did not commit sexual assault, instead, they rescued her. PW1 did not tell it to even Investigating Officer, instead, he named the appellant and two other persons, as the persons who committed sexual assault upon the victim. It makes prosecution case doubtful. 23. The clothes, which were taken by the Investigating Officer, were sent for forensic examination. Report is on record. According to it, on clothes worn by the victim and on anal and vaginal swab, blood was detected. There is no report that DNA matched with the appellant. Victim was an old woman of 70 years of age. She was sexually assaulted, but no efforts were made to have more scientific evidence. Efforts were not made to get the DNA profiling of appellant and other suspects, etc. 24. There is no report that DNA matched with the appellant. Victim was an old woman of 70 years of age. She was sexually assaulted, but no efforts were made to have more scientific evidence. Efforts were not made to get the DNA profiling of appellant and other suspects, etc. 24. Therefore, this Court is of the view that prosecution has not been able to prove the charges beyond reasonable doubt against the appellant and the appellant deserves to be acquitted of the charges and appeal allowed. 25. The appeal is allowed. Impugned judgment and order is set aside. Appellant is acquitted of the offences punishable under sections 376 and 302 IPC. 26. Appellant is in Jail. He be released forthwith, if not wanted in any other case, subject to his furnishing personal bonds and two sureties, each of the like amount to the satisfaction of court concerned, under section 437A of the Code. 27. Let a copy of the judgment along with lower court record be sent to the court below for compliance.