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2019 DIGILAW 56 (TRI)

Anwar Hossain Maishan v. State of Tripura

2019-11-04

ARINDAM LODH, S.TALAPATRA

body2019
JUDGMENT : S. TALAPATRA, J. 1. This is an appeal by the convict [hereinafter referred to as the appellant] from the judgment and order of conviction and sentence dated 18.05.2016 delivered in Case No. Special(POCSO) 01 of 2015. By the said judgment, the appellant has been convicted under Sections 366 and 506 of the IPC and under Section 4 of Protection of Child from Sexual Offences Act, 2012 [the POCSO Act, in short]. 2. Pursuant to the said judgment of conviction, the appellant has been sentenced to suffer rigorous imprisonment for life and fine of Rs. 10,000/- with default stipulation for committing offence punishable under Section 4 of the POCSO Act, the rigorous imprisonment for ten years and fine of Rs. 5000/- with default stipulation for committing offence punishable under Section 366 of the IPC and rigorous imprisonment for two years for committing offence punishable under Section 506 of the IPC with direction that the sentences will run consecutively. 3. The genesis of the prosecution case is rooted in the complaint filed by one Selina Aktar on 24.02.2015 revealing that on 21.02.2015, she was called by the Sonamura English Medium School where her minor daughter [the name is withheld for protecting her identity] was studying in Class-VI, to bring to her notice that on 14.02.2015, the valentine day, someone had sent chocolate for her daughter. She was advised to be cautious. After persuading her daughter repeatedly, she came to know that the appellant who used to come to their house to park his bike and on several occasions, he had advanced unfair proposal. As her daughter did not give in, she was threatened. On 28.01.2015, when she was on her way to her school, the appellant kidnapped her daughter by a car [Indica] from a place near the Rainbow Club at Sonamura and after that, the appellant took her daughter, hereinafter referred to as the victim, to his relative's house under threat. Even, she had to participate in the marriage ceremony in presence of Kaji. The other two persons were also in the conspiracy. Her minor daughter had somehow released her from the appellant and managed to come back at home at 4.30 p.m., whereas the kidnapping took place at 10/10.30 a.m. The appellant threatened the victim showing the video clip that was taken when one woman removed her apparel and made her wear Saree etc. Her minor daughter had somehow released her from the appellant and managed to come back at home at 4.30 p.m., whereas the kidnapping took place at 10/10.30 a.m. The appellant threatened the victim showing the video clip that was taken when one woman removed her apparel and made her wear Saree etc. Out of fear, the victim did not inform the said occurrence to anyone. On the day of revelation i.e. 24.02.2015, the complaint was filed. 4. Based on the said complaint, Sonamura P.S. Case No. 2015 SNM023 under Section 366/376(2)(1)/506/34 of the IPC and Section 4 of the POCSO Act was registered and taken up for investigation. On completion of investigation, the police report was filed to the Special Court [under POCSO Act] and in due course, the charge against the appellant was framed under Sections 366, 376(2)(i) of the IPC and 506 of the IPC and Section 4 of the POCSO Act. The appellant having pleaded not guilty and claimed to be tried. Subsequently, the charge was framed also under section 366A and 120B of the IPC, to which the appellant pleaded not guilty and claimed to face the trial. 5. In order to substantiate the charge, the prosecution adduced as many as fourteen witnesses including the victim [PW-1], the informant [PW-2], the Medical Officer [PW-11] and the Investigating Officer [PW-13]. That apart, as many as ten documentary evidence was introduced by the prosecution including the birth Certificate of the victim [Exbt. 3] and the Medical Examination Report [Exbt. 6]. Even though, there was no defence witness, but at the instance of the defence, seven excerpts of the statement of the victim and other two persons have been admitted in the evidence as Exbts. A to J. 6. It is to be mentioned that statement of some of the witness including the victim were also recorded under Section 164(5) of the Cr.P.C. After the prosecution evidence was closed, the appellant was examined under Section 313 of the Cr.P.C. but the appellant repeated his plea of innocence and stated that the evidence which tends to incriminate him is false. 7. Having appreciated the evidence and on hearing, the trial court convicted the appellant under Section 366/376(2)(i)/506 of the IPC and under Section 4 of the POCSO Act and sentenced as stated above. 7. Having appreciated the evidence and on hearing, the trial court convicted the appellant under Section 366/376(2)(i)/506 of the IPC and under Section 4 of the POCSO Act and sentenced as stated above. The appellant was acquitted from the other charge but it may be noted that no separate sentence for committing the offence punishable under section 376(2)(i) of the IPC has been imposed as the sentence has awarded under Section 4 of the POCSO Act. The trial Judge, while returning the finding of conviction, has observed as follows: "So far careful perusal of the evidence on record, I am of the opinion that the prosecution side has successfully proved that on 28th January, 2015 accused Anwar Hossain Maishan had kidnapped the victim girl [the name is withheld for protecting her identity] with intent to compel her to marry accused Anowar Hossain Maishan and that accused Anowar Hossain Maishan forcefully committed rape upon the victim girl inspite of having knowledge that the victim girl [the name is withheld for protecting her identity] was a child of below 12 years of age and that accused Anowar Hossain Maishan had been threatening to kill the victim girl and her younger sister in case of disclosure of the alleged incidents to anyone by the victim girl." 8. Mr. P.K. Biswas, learned senior counsel appearing for the appellant has submitted that the finding of conviction has emerged from inappropriate appreciation of evidence and on assumptions which do not have roots in the evidence. It is unbelievable that the victim suppressed the whole occurrence from 28.01.2015, the day of occurrence to 24.02.2015 as she had revealed the occurrence to her mother [PW-2] with any noticeable change in the circumstances. 9. Mr. Biswas, learned senior counsel has further submitted that taking the victim away to the place called Rangamatiya where the victim was subjected to sexual intercourse and purported marriage where the local people had participated. If the said episode is not proved, the appellant cannot be made liable for the offence as alleged in the complaint. The charge may stand unsubstantiated on an overall appraisal of the evidence. Mr. Biswas, learned senior counsel has submitted that there is no chain of evidence or any evidence to prove the occurrence at Rangamatiya [the second place of occurrence]. 10. Mr. The charge may stand unsubstantiated on an overall appraisal of the evidence. Mr. Biswas, learned senior counsel has submitted that there is no chain of evidence or any evidence to prove the occurrence at Rangamatiya [the second place of occurrence]. 10. Mr. Biswas, learned senior counsel has submitted that the entire prosecution case is structured on the testimony of the victim. The victim while testifying has stated that there was lot of persons some of whom was identified by her but they were not cited as the witness. Even the mother of the victim [PW-2] has testified that she heard about the marriage of the victim with the appellant, but she did not disclose the source of such information in the trial. Such statement has been slighted by the trial Judge. If the due value is provided to that statement, it would be apparent that the complaint was filed belatedly with an oblique motive to frame the appellant. Even the episode of giving the chocolate cannot be used against the appellant as there is no proof that the appellant sent those chocolates. In this regard, the testimony of PW-3 has been referred to. PW-3 has stated in the trial as under: "One Joypal Saha, a student of Class-XI handed over those chocolates to Laxmi with a request to deliver the said to .... [the name of the victim is withheld], a student of Class VI." Even the testimony of PW-4, a teacher of the Sonamura English Medium School was not taken in due consideration when she deposed: "Some guardians of the students of class-VI met with me and told me that their children were talking about the marriage of ... [the name of the victim], another student of Class-VI." 11. PW-4 after consulting with the other teachers asked the victim girl to come with her mother [PW-2] on the next date. Thereafter, PW-2 has stated in the trial that on 21.2.2015 she met her and PW-4 narrated the incident to her and asked her about the genuineness of such information. But PW-2 expressed her ignorance about the incident/occurrence. She did no ritual of the marriage. 12. Mr. Biswas, learned senior counsel has submitted that PW-2 has deliberately suppressed the knowledge in the complaint and with ulterior motive framed the appellant in the case. Mr. But PW-2 expressed her ignorance about the incident/occurrence. She did no ritual of the marriage. 12. Mr. Biswas, learned senior counsel has submitted that PW-2 has deliberately suppressed the knowledge in the complaint and with ulterior motive framed the appellant in the case. Mr. Biswas, learned senior counsel has submitted that the prosecution story is based not on reliable information, falsification and the imaginary episodes at Ranagamatiya which could not be proved in the trial. 13. To buttress his submission, Mr. Biswas, learned senior counsel has relied on a decision of the apex court in Dayal Singh and Ors. Vs. State of Uttaranchal reported in AIR 2012 SC 3046 where the apex court has enunciated that where the eyewitness account is found credible and trustworthy, medical opinion pointing to alternative possibilities may not be accepted as conclusive. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the court on the technical aspects, so that the court, although not an expert, may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert opinion is accepted, it is not the opinion of the medical officer but that of the Court [see Madan Gopal Kakad v. Naval Dubey and Anr. reported in (1992) 3 SCC 204 ]. The essential principle governing expert evidence is that the expert is not only to provide his reasons to support his opinion, but the result should be directly demonstrable. The court is not to surrender its own judgment to the opinion of the expert. The court should assess the expert evidence like any other evidence. If the report of an expert is slipshod, inadequate or cryptic and relevant information are not placed with his report, his opinion will be of no use. It is required of an expert, whether a government expert or private, that his opinion to be accepted when materials which led him to come to the inference so that the court, not an expert, may form its own opinion on the aspect. If the expert in his evidence does not place the whole lot of similarities or dissimilarities which influenced his mind to come to a particular conclusion, which he stated in the court, then he fails in his duty to take the court into confidence. If the expert in his evidence does not place the whole lot of similarities or dissimilarities which influenced his mind to come to a particular conclusion, which he stated in the court, then he fails in his duty to take the court into confidence. The court is not to believe the ipse dixit of an expert. Indeed the value of the expert evidence consists mainly on the ability of the witness by reason of his special training and experience to point out the court such important facts as the court otherwise might fail to observe and in so doing the court is enabled to exercise its own view or judgment respecting the cogency of reasons and the consequent value of the conclusions formed thereon. The opinion is required to be presented in a convenient manner and the reasons for a conclusion based on certain visible evidence, properly placed before the Court. In other words, the value of expert evidence depends largely on the cogency of reasons on which it based. In Dayal Singh (supra), the apex court had occasion to dwell on the expert testimony and its evidentiary extent, and observed as under: "32. The purpose of expert testimony is to provide the trier of fact with useful, relevant information. The overwhelming majority rule in the United States, is that an expert need not be a member of a learned profession. Rather, experts in the United States have a wide range of credentials and testify regarding a tremendous variety of subjects based on their skills, training, education or experience. The role of the expert is to apply or supply specialized, valuable knowledge that lay jurors would not be expected to possess. An expert may present the information in a manner that would be unacceptable with an ordinary witness. The common law tried to strike a balance between the benefits and dangers of expert testimony by allowing expert testimony to be admitted only if the testimony were particularly important to aiding the trier of fact. Even in United States, if the helpfulness of expert testimony is substantially outweighed by the risk of unfair prejudice, confusion or waste of time, then the testimony should be excluded under the relevant Rules, and State equally balanced. Expert testimony on any issue of fact and significance of its application has been doubted by the scholars in the United States. Even in United States, if the helpfulness of expert testimony is substantially outweighed by the risk of unfair prejudice, confusion or waste of time, then the testimony should be excluded under the relevant Rules, and State equally balanced. Expert testimony on any issue of fact and significance of its application has been doubted by the scholars in the United States. Even under the law prevalent in that country, the opinion of an expert has to be scientific, specific and experience based. Conflict in expert opinions is a well prevalent practice there. While referring to such incidence David H. Kaye and other authors in 'The New Wigmore A Treatise on Evidence - Expert Evidence' (2004 Edition) opined as under: The district court opinion reveals that one pharmacologist asserted "that Danocrine more probably than not caused Plaintiff's death from pulmonary hypertension," but it describes the reasoning behind this opinion in the vaguest of terms, referring only to "extensive education and training in pharmacology" and an unspecified "scientific technique" that "relied upon epidemiological, clinical and animal studies, as well as Plaintiff's medical records and medical history..." The nature of these studies and their relationship to the patient's records is left unstated. The district court incanted the same mantra to justify admitting the remaining testimony. It asserted that the other experts "similarly base their testimony upon a careful review of medical literature concerning Danocrine and pulmonary hypertension, and Plaintiff's medical records and medical history. The court of appeals elaborated on the testimony of two of the experts. The physician "was confident to a reasonable medical certainty that the Danocrine caused Mrs. Zuchowicz's PPH" because of "the temporal relationship between the overdose and the start of the disease and the differential etiology method of excluding other possible causes." Yet the "differential etiology" here was barely more than a differential diagnosis of PPH. The causes of PPH are generally unknown and it appears that the only other putative alternative causes considered were drugs other than Danocrine. It is not at all clear that such a "differential etiology" is adequate to support a conclusion of causation to any kind of a "medical certainty." The pharmacologist, not being a medical doctor, testified "to a reasonable degree of scientific certainty... It is not at all clear that such a "differential etiology" is adequate to support a conclusion of causation to any kind of a "medical certainty." The pharmacologist, not being a medical doctor, testified "to a reasonable degree of scientific certainty... [that] the overdose of Danocrine, more likely than not, caused PPH...." He postulated a mechanism by which this might have occurred: "I) a decrease in estrogen; 2) hyperinsulinemia, in which abnormally high levels of insulin circulate in the body; and 3) increase in free testosterone and progesterone... that... taken together, likely caused a dysfunction of the endothelium leading to PPH. In sum, Plaintiff's experts did not know what else might have caused the hypertension, and they offered a conjecture as to a causal chain leading from the drug to the hypertension. This logic would be more than enough to justify certain clinical recommendations-the advice to Mrs. Zuchowicz to discontinue the medication, for example. But is it enough to allow an expert not merely to testify to a reasonable diagnosis of PPH, or "unexplained pulmonary hypertension," as the condition also is known, but also be able to propound a novel explanation that has yet to be verified, even in an animal model? 33. The Indian law on Expert Evidence does not proceed on any significantly different footing. The skill and experience of an expert is the ethos of his opinion, which itself should be reasoned and convincing. Not to say that no other view would be possible, but if the view of the expert has to find due weightage in the mind of the Court, it has to be well authored and convincing. Dr. C.N. Tewari was expected to prepare the post mortem report with appropriate reasoning and not leave everything to the imagination of the Court. He created a serious doubt as to the very cause of death of the deceased. His report apparently shows an absence of skill and experience and was, in fact, a deliberate attempt to disguise the investigation. 34. We really need not reiterate various judgments which have taken the view that the purpose of an expert opinion is primarily to assist the Court in arriving at a final conclusion. Such report is not binding upon the Court. 34. We really need not reiterate various judgments which have taken the view that the purpose of an expert opinion is primarily to assist the Court in arriving at a final conclusion. Such report is not binding upon the Court. The Court is expected to analyse the report, read it in conjunction with the other evidence on record and then form its final opinion as to whether such report is worthy of reliance or not. Just to illustrate this point of view, in a given case, there may be two diametrically contradictory opinions of handwriting experts and both the opinions may be well reasoned. In such case, the Court has to critically examine the basis, reasoning, approach and experience of the expert to come to a conclusion as to which of the two reports can be safely relied upon by the Court. The assistance and value of expert opinion is indisputable, but there can be reports which are, ex facie, incorrect or deliberately so distorted as to render the entire prosecution case unbelievable. But if such eye-witnesses and other prosecution evidence are trustworthy, have credence and are consistent with the eye version given by the eye-witnesses, the Court will be well within its jurisdiction to discard the expert opinion. An expert report, duly proved, has its evidentiary value but such appreciation has to be within the limitations prescribed and with careful examination by the Court. A complete contradiction or inconsistency between the medical evidence and the ocular evidence on the one hand and the statement of the prosecution witnesses between themselves on the other, may result in seriously denting the case of the prosecution in its entirety but not otherwise." [Emphasis added] 14. Mr. Biswas, learned senior counsel has further asserted that the doctor to whom the victim was taken first has not been examined in the trial. He has submitted that the prosecution has failed to prove the charge under Section 4 of the POCSO Act or under Section 376(2)(i) of the IPC against the appellant. Even the charge under Section 366A and 506 of the IPC has not been proved beyond reasonable doubt. On the basis of the said analogy, Mr. Biswas, learned senior counsel has urged this court to set aside the judgment of conviction and the consequential order of sentence. 15. Mr. Even the charge under Section 366A and 506 of the IPC has not been proved beyond reasonable doubt. On the basis of the said analogy, Mr. Biswas, learned senior counsel has urged this court to set aside the judgment of conviction and the consequential order of sentence. 15. Mr. R. Datta, learned PP appearing for the state has in order to repel the submission of Mr. Biswas, learned senior counsel has contended that there is nothing to disbelieve the victim. PW-1 has been extensively corroborated by PW-2, her mother. Even, PW-12, the Medical Officer of Sonamura CHC found hymen of the victim was torn, healed 6 O' clock and she opined that there were signs of old vaginal penetration, but the final opinion was initially kept pending for opinion of the forensic expert on the vaginal swab. Later on, having received the forensic report, it transpires that seminal stains of human origin was not found, the final opinion as reflected in Exbt. 7 series is as follows: "There were signs of old vaginal penetration and signs are consistent with the history given." 16. Mr. Datta, learned PP has contended that PW-12 has confirmed the "old vaginal penetration" and in this regard, Mr. Datta, learned PP has relevantly stated that the penetrative sexual assault took place on 28.01.2015 at 10 a.m., whereas the medical examination of the victim by PW-12 had taken place on 25.12.2015. Thus, it is quite natural that other signs of injury were healed up in the meanwhile. Mr. Datta, learned PP having referred to State of Punjab v. Gurmit Singh and Others reported in (1996) 2 SCC 384 has contended that the testimony of the victim of sexual assault is vital and unless there are compelling reasons, which necessitate looking for corroboration of her statement, the court should find no difficulty in acting on the testimony of the victim of sexual assault alone to convict an accused when the testimony inspires confidence and is found to be reliable. 17. Having followed State of Maharashtra v. Chandraprakash Kewalchand Jain reported in (1990) 1 SCC 550 in Gurmit Singh (supra) it has been observed inter alia: "The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. 17. Having followed State of Maharashtra v. Chandraprakash Kewalchand Jain reported in (1990) 1 SCC 550 in Gurmit Singh (supra) it has been observed inter alia: "The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations." 18. In sequel, relying on Gurmit Singh (supra), Mr. Datta, learned PP has submitted that a prosecution can succeed based on the testimony of the sole witness if the testimony inspires confidence leaving no doubt in the mind of the court and being above all suspicion. In this regard, Mr. Datta, learned PP has placed his reliance on State of Haryana v. Inder Singh and Others reported in (2002) 9 SCC 537 where the apex court has restated the law in respect of how the testimony of the solitary witness can be appreciated: "There is no denial of the fact that it is not the quantity but the quality of the witnesses which matters for determining the guilt or innocence of the accused in the criminal cases. However, it is equally true that when a case is based upon the testimony of the only witness, his statement must be confident - inspiring leaving no doubt in the mind of the court, being above all suspicion..." 19. Mr. Datta, learned PP has urged this court not to give undue importance to absence of injuries or absence of seminal stain in the vaginal swab. Mr. Datta, learned PP has urged this court not to give undue importance to absence of injuries or absence of seminal stain in the vaginal swab. In this regard, he has referred a decision of the apex court in B.C. Deva alias Dyava v. State of Karnataka reported in (2007) 12 SCC 122 where it has been held as under: 18. The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though, the report of the Gynaecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted. 19. Though, the FSL Report marked as Ex. C-1 pertaining to the undergarments of the accused and the victim did not contain any seminal stains, yet the said report cannot be given any importance because the underwear of the accused was taken into possession by the police on the next day of the incident when he was arrested. There is no evidence brought on record to show that the accused handed over the same under wear to the police, which he was wearing on the day of incident or he had handed over some other underwear which was seized under mahazer (Ex. P-5) by the police. The possibility of absence of seminal stains on petticoat of the prosecutrix which she was wearing at the time of the incident, could not be ruled out due to the fact that the petticoat got drenched in the water and the seminal stains might have been washed away. 20. On the aspect of age of the victim whether she would fall in the category of child or not, Mr. Datta, learned PP has relied the testimony of the mother who has testified that on the day of occurrence, the victim was the student of Class-VI. She had also produced the original birth certificate [Exbt. 3], admission of which, however, was challenged by the accused as the officer who issued the said certificate was not adduced in the trial. Datta, learned PP has relied the testimony of the mother who has testified that on the day of occurrence, the victim was the student of Class-VI. She had also produced the original birth certificate [Exbt. 3], admission of which, however, was challenged by the accused as the officer who issued the said certificate was not adduced in the trial. From the said birth certificate issued by the Registrar of Deaths and Births under No. 111 dated 01.10.2008 it surfaces that the victim was born on 28.07.2003. This court has already settled the law that the certificate issued by the Registrar, Death and Birth being the statutory authority, falls in the category in the public document and as such, such document can be admitted waiving the formal proof. Even Mr. Biswas, learned senior counsel did not raise any objection in respect of age of the victim. 21. Mr. Datta, learned PP has relied a decision of the apex court in State of Madhya Pradesh v. Preetam reported in AIR 2018 SC 4212 where it has been held quite remarkably as under: "11. In our considered view, the answer elucidated in the cross-examination of Dr. Vasnik (PW-6) cannot be taken as a final opinion on the age of the prosecutrix (PW-1). It is to be relevant to note that before the trial court the prosecution has examined Bhaulal (PW-8), Head master/Head teacher of Primary School Chor Pind Ke Par, District Balaghat. In his evidence, Bhaulal (PW-8) has stated that the date of birth of the prosecutrix (PW-1) was 16th May, 1981 which means that on the date of the occurrence i.e. 6th March, 1993, the prosecutrix (PW-1) was only aged about 12 years. The trial court has neither acted upon the evidence of Bhaulal (PW-8) nor on the school certificate on the ground that the person who has admitted the prosecutrix in the school was not examined. 12. In our considered view, the approach of the trial court was not correct. In each and every case the prosecution cannot be expected to examine the person who has admitted a student in the school. The school registers are the authentic documents being maintained in the official course, entitled to credence of much weight unless proved otherwise. In our view, considering the evidence of head master, Bhaulal (PW-8), and the school certificate produced by him i.e. Ex. The school registers are the authentic documents being maintained in the official course, entitled to credence of much weight unless proved otherwise. In our view, considering the evidence of head master, Bhaulal (PW-8), and the school certificate produced by him i.e. Ex. P/13-A, age of the victim has to be taken as 12 years at the time of occurrence. 13. Of course, Dr. U.S. Vasnik (PW-6) in her chief examination has stated that the age of the prosecutrix would be between 13 and 17 years. At the most, adopting the doctor's evidence, age of the prosecutrix at the relevant point of time can only be around 15 years. As per Section 375 Indian Penal Code a man is said to commit rape, Sixthly-"With or without her consent, when she is under sixteen years of age". The prosecutrix being aged 12 years at the time of the occurrence, her consent or otherwise was of no relevance to bring the offence within the meaning of Section 375 Indian Penal Code In our considered view the High Court ignored the material evidence adduced by the prosecution and erred in reversing the conviction of the Respondent-Accused. 14. So far as the other ground of acquittal-delay in registration of the F.I.R. is concerned, it has come on the record that the uncle of the prosecutrix, Moti Ram (PW-2), was not in the village and returned back to the village only on 8th March, 1993 and on his return his daughter-Hirkanbai (PW-3), has narrated the whole incident to him as to what happened to the prosecutrix (PW-1) and a complaint was lodged on the same day i.e. 8th March, 1993. After medical examination of the prosecutrix (PW-1) on 9th March, 1993, F.I.R. was registered on 10th March, 1993 and the delay in registration of the F.I.R. has been properly explained, which has not been considered by the High Court." [Emphasis added] 22. Mr. Datta, learned PP has finally submitted that there is no element of incongruity which visited the testimony of the victim, rather on appreciation of the evidence it would be apparent that she was truthful. Hence, the finding of conviction does not warrant any interference from this court. 23. For purpose of appreciation, it would be apposite to make a meaningful survey of the evidence that has been recorded in the trial. 24. Hence, the finding of conviction does not warrant any interference from this court. 23. For purpose of appreciation, it would be apposite to make a meaningful survey of the evidence that has been recorded in the trial. 24. PWs-1 & 2 are vital to the prosecution case being the victim and the victim's mother. Before their testimony is noted, the evidence of the other witnesses may be noted. 25. PW-3, Prasanta Kumar Majumder was a teacher in Sonamura English Medium School, the school of the victim. He has stated that on 14.02.2015 while he was taking the class, one Laxmi Ruhi Das [PW-8] handed over some chocolates with request to deliver those to the victim who was a student of that class [Class-VI]. PW-8 informed him that the chocolates were given to her by one Joypal Saha [PW-7] and accordingly, he had delivered the chocolates to the victim. 26. PW-4, Smt. Kajal Chakraborty another teacher of that school has stated that on 16.02.2015 few guardians of Class-VI met her and told that the children were 'talking about the marriage of the victim'. They were pained as a minor girl was married. On 21.02.2015, mother of the victim [PW-2] met her and she informed what she had heard from few guardians but PW-2 expressed her ignorance and categorically stated that no marriage has been solemnized. She was cross-examined but without any dent to her statements. 27. PW-5, Lilo Begum corroborated that on 21.02.2015 she [PW-2] met one teacher of the school. After returning home, she met her and one Nachima Akhter [PW-6] and shared the information given by the teacher [PW-4]. The victim was questioned and she became frightened and started weeping and she stated finally that on 28.01.2015 at about 10.30 a.m. when she was proceeding towards her school, the appellant [Anwar Hossain Maishan] reached infront of the Rainbow Club, Sonamura with a vehicle and took her inside the vehicle 'forcibly'. She was taken to a hut at a long distance where two aged women, one young woman with child were found. The victim saw one Kazi and one camera man in that place. The victim was asked to change her school dress and to wear one saree. Her dress was changed by those old women and she was compelled to marry the appellant. After marriage, she was taken inside the hut and the door was bolted from inside. The victim saw one Kazi and one camera man in that place. The victim was asked to change her school dress and to wear one saree. Her dress was changed by those old women and she was compelled to marry the appellant. After marriage, she was taken inside the hut and the door was bolted from inside. There, the appellant committed rape forcibly on the victim. The victim told PWs-5 & 6 that the house belonged to one Bachu Miah. The appellant released the victim after the school hours in the school uniform. As the appellant threatened not to disclose, the victim did not disclose till 21.02.2015. PW-2 informed the matter to her husband and on 24.02.2015, PW-2 lodged the complaint to the Officer-in-Charge of Sonamura Police Station on 24.02.2015. On 26.02.2015, the birth certificate of the victim was seized by the police officer in her presence and she signed on the seizure list [Exbt. 4]. In the cross-examination, she did not deviate from her statement. But some omission had been noted at the instance of the defence in respect of what PW-5 did not state to the investigating officer. The suggestions as projected were all denied. 28. PW-6, Nachima Akhter replicated PW-5 for obvious reason but she has stated that the victim told them that the appellant threatened her that he would kill her and her younger sister and one cousin if she disclosed that incident. PW-6 was also the witness to the seizure of the birth certificate [Exbt. 3]. Some omission, even though, has been noted at the instance of the defence, but PW-6 did not deviate from her statement. She had also denied the suggestions made contrary to her statement. 29. PW-7, Joypal Saha, a student of Class-XII of the said school has stated that on 14.02.1015, 'one unknown person' delivered some chocolates for handing over to the victim. He received those chocolates but he did not deliver those chocolates to the victim, but had requested Laxmi Ruhi Das [PW-8] to hand over those chocolates to the victim. His evidence has delinked the appellant from delivery of chocolates to the victim. 30. PW-8, Laxmi Ruhi Das has corroborated what PWs-4 & 7 has testified in the trial. 31. He received those chocolates but he did not deliver those chocolates to the victim, but had requested Laxmi Ruhi Das [PW-8] to hand over those chocolates to the victim. His evidence has delinked the appellant from delivery of chocolates to the victim. 30. PW-8, Laxmi Ruhi Das has corroborated what PWs-4 & 7 has testified in the trial. 31. PW-9, Narayanan Chandra Saha having received the complaint as the Officer-in-Charge of Sonamura Police Station registered the case against the appellant and one Faruk against whom no charge was framed [the charge was framed against Kabir Hossain alias Kabir Miah under Section 366A and 120B of the IPC]. After registering the case, he endorsed the case to Ashalata Debnath, S.I. for investigation. 32. PW-10, Dipankar Das is the scribe who wrote the complaint [Exbt. 2] on dictation of PW-2. 33. PW-11, Dr. Goutam Chakraborty examined the appellant who stated him to be unmarried but found there was nothing to suggest that he was incapable of sexual intercourse. He admitted the examination report [Exbt. 6] in the evidence. 34. PW-12, Dr. Shatabdi Pal had examined the victim on obtaining consent from PW-2. She has stated in the trial that PW-2 disclosed the age of the victim as 11 years 7 months on the day of examination i.e. 25.02.2015. The victim had the last menstruation on 06.02.2015. She complained of pain of lower abdomen during walk. The victim girl changed her cloth after the sexual assault and took bath on the next morning. PW-12 recorded the physical manifestations but for obvious reason, she did not find any sign of rape. As the public hair was not matted, no foreign hair was located in the triangular distribution. Vulva was normal with no injury or stain but the hymen was torn. PW-12 collected the samples of vaginal swab, urethral swab but no seminal or other stain, foreign body, nail cutting and nail scrapping was available. For laboratory test, blood and urine were collected after labeling in the sterile container. The samples were handed over to a constable of the Sonamura Police Station. She kept her opinion pending till she received the opinion of the forensic expert in respect of vaginal swab. She has admitted the examination report of the victim [Exbt. 7 series] in the evidence. The samples were handed over to a constable of the Sonamura Police Station. She kept her opinion pending till she received the opinion of the forensic expert in respect of vaginal swab. She has admitted the examination report of the victim [Exbt. 7 series] in the evidence. During the cross examination, she has stated as follows: "It is not possible to mention/opinion regarding age of injury found in the vagina in case of old/healed injury. It is true that tear of hymen leads to bleeding from the hymen. It is true that hymen may be ruptured due to cycling or sustaining injury by falling or masturbation. Rapture may also be caused if any foreign body other than penis is inserted. It is true that in my final opinion I did not mention about any sexual intercourse. It is true that vaginal penetration may be happened other than sexual intercourse." [Emphasis added] Her opinion has already been extracted from the report. 35. PW-13, Ashalata Debnath, a woman Sub-Inspector of Police was posted on 24.02.2015 in the Sonamura Police Station and she was entrusted with the investigation. She has narrated in the trial how she had carried out the investigation by preparing the site map, recording the statements of the witnesses, arranging medical examination of the victim and recording of the statement of the victim under Section 164(5) of the Cr.P.C. The appellant was also sent by her for Sexual Potentiality Test. Having received the forensic report, she collected the final medical examination report of the victim. From the constable Dhana Laxmi Debbarma, who collected the samples from PW-12, PW-13 seized those samples by preparing the seizure list [Exbt. 9] for forensic examination but she was yet to file the charge-sheet. When she was transferred to Bishalgarh P.S., on the specific assignment, she has narrated how she conducted the investigation in the various phases. She prepared the second site map of the second place of occurrence. PW-13 has explained in the cross-examination that on 26.02.2015 at the time of recording the statement of PW-5, she had, by mistake noted the month-January instead of February. But she has categorically stated that she could not collect the evidence regarding the identity of two photographers and the qazi. She has further stated that some of the witnesses were reluctant to make any statement against the appellant as the appellant had a history of committing murder. But she has categorically stated that she could not collect the evidence regarding the identity of two photographers and the qazi. She has further stated that some of the witnesses were reluctant to make any statement against the appellant as the appellant had a history of committing murder. PW-13 has categorically made the statement that she could not collect the names of the photographers and qazi who gave the marriage of the victim with the appellant. She has candidly stated that she did not verify the circumstances which might have arrived during the journey till she reached the second place of namely Rangamatiya. She has admitted that in her examination-in-chief PW-13 has stated that on 16.03.2015 she engaged secret source to identify the second place of occurrence at Telkajala in the house of Bachchu Miah under Melagarh P.S. She has further stated that she visited the second place of occurrence along with the victim girl and her guardian. The victim identified the second place of occurrence and she identified the site map [Exbt. 10 series]. Then she has testified as under: "Thereafter, I examined the house owner Bachchu Miah and his brother Ruhul Amin including their two neighbourers namely, Mst. Rina Begum @ Rina Bibi and Manir Hossain and recorded their statements under Section 161 of Cr.P.C." She had made the following statement: "Those witnesses also told me that there were two photographers and one Kazi at the place of occurrence. Those witnesses told me that the victim girl was taken to the 2nd place of occurrence by the accused persons in School uniform and the photographers took snaps of the marriage ceremony of accused Anowar Hossain Maishan with the victim girl. Thereafter, I conducted raid in the houses of the co-accused Kabir Hossain and Faruk Hossain but both of them were found absconding. Thereafter, I returned to Sonamura police station along with the victim girl and her mother." It would be pertinent to verify the site map of the second place of occurrence as proved by PW-13. In the said site map [Exbt. 10 series], place of occurrence is a dwelling hut. PW-1 [the victim] in her cross-examination has admitted that she did not state to the Magistrate or to the Investigating Officer that she was taken to another room wherein she found two photographers with cameras and one qazi. In the said site map [Exbt. 10 series], place of occurrence is a dwelling hut. PW-1 [the victim] in her cross-examination has admitted that she did not state to the Magistrate or to the Investigating Officer that she was taken to another room wherein she found two photographers with cameras and one qazi. At that point of time, she has stated that there was 'one hut'. Thus, it would be very difficult to find out two huts in the place of occurrence where the incidence took place. Therefore, the 'A' is the only place of occurrence according to the victim. None of the shopkeepers could say anything in respect of the incidence of kidnapping. In the cross-examination, the evidence of PW-13 was not dented at all. She has denied the suggestions against what she has stated in the examination-in-chief. She had completed the investigation and filed the final report. 36. PW-14, Rahul Roy, is a Judicial Magistrate who recorded the statement of the victim under Section 164(5) of the Cr.P.C. As the victim was a witness of tender age, for purpose of recording her statement, the Judicial Magistrate carried out the required test to determine her maturity of discharging the duty of telling the truth and comprehending the circumstances. This court has verified the statement as recorded under Section 164(5) of the Cr.P.C. on 25.02.2015 [Exbt. 1]. The said statement was certified by the Judicial Magistrate. It is apparent on the face of the record that PWs-5 and 6 who along with PW-2 heard from PW-1 [the victim] how she was kidnapped and forced to marry the appellant and how she was sexually assaulted by commission of rape. The evidence of PWs-5 and 6 has been noted. 37. PW-1, the victim has stated in the trial that the appellant used to be called by her as uncle [Kaka] and he used to keep his motor cycle in their residence at Sonapur. She was reading in Class-VI of that school and residing in a rented house, adjacent to the house of the appellant. She was staying with her younger sister who was reading in another school. She used to go to the school by an auto rickshaw. The appellant used to restrain her on her way to the school. She had refused to accept the indecent proposal. For such annoyance, she had stopped going to school by riding bi-cycle. She was staying with her younger sister who was reading in another school. She used to go to the school by an auto rickshaw. The appellant used to restrain her on her way to the school. She had refused to accept the indecent proposal. For such annoyance, she had stopped going to school by riding bi-cycle. On 28.01.2015, when she was proceeding towards school on foot and reached in a place nearby Rainbow Club, suddenly, the appellant arrived there with a vehicle and forcibly took her inside the vehicle by gagging her mouth. For that reason, she could not raise alarm from inside the vehicle. There was another boy besides the driver and the appellant asked the driver to go to Rangamatiya which place was known to her from earlier. At that stage, the recording of the deposition was discontinued at the request of the victim. Thereafter, she has stated that she was taken to a hut. At that time, one woman asked the appellant about her identity but the appellant threatened the woman not to ask any question. Two other women, one girl, one baby and one male person were there in that house. The appellant gave her one saree to wear on changing the school uniform. Thereafter, she was taken before the qazi but she expressed her unwillingness, but under threat, she communicated her willingness. There were two photographers who recorded the entire proceeding of marriage by their camera. The house inmates were not known to her. One 'Bacchu' asked the appellant why he had brought one school going student with school uniform in their house. Then the appellant had assured that they would leave shortly. After marriage, she was bolted in the room where the appellant committed sexual intercourse forcibly and the victim became senseless. When she regained sense, she was asked to change dress and put on the school uniform. She was released at a place nearby the Sonamura Motor Stand. Before her release, she was threatened of dire consequence if she had disclosed the incident. Out of fear, she did not disclose the incident to anyone but she complained to her mother about the pain in her lower abdomen when her mother had taken her to a homeopathy doctor. She was released at a place nearby the Sonamura Motor Stand. Before her release, she was threatened of dire consequence if she had disclosed the incident. Out of fear, she did not disclose the incident to anyone but she complained to her mother about the pain in her lower abdomen when her mother had taken her to a homeopathy doctor. After the incident, which occurred on 28.01.2015, the victim was attending the school usually and the appellant was monitoring her and sometimes threatened her not to disclose the incident to anyone. She was threatened by the appellant of circulating the video recording of his marriage with her in the internet. Later on, she narrated the episode of receiving chocolates in the class from one teacher [PW-3]. She has also stated that after completion of school on that day, the appellant asked her whether she would like to get any gift from him. Thereafter, she has stated that on 20.02.2015, PW-4 asked her to inform her mother to visit the school and meet her. After returning from the school, her mother [PW-2] asked her whether the information about her marriage was correct or not. Her mother told her to narrate everything fearlessly. Then she had narrated the entire episode to her and also to PWs-5 and 6. Thereafter, the complaint was lodged in the police station. The police officer recorded her statement and taken her for medical examination and she was sent for recording of her statement by the Judicial Magistrate. One day she visited the place of sexual assault with the investigating officer. She has admitted certain facts during her cross-examination viz. she did not state to the Judicial Magistrate that the appellant used to visit her rented house, proposed her and used to threat by saying that he would kidnap her younger sister and cousin to Bangladesh and murder them, unless, she agreed to his proposal. She has also admitted that she did not tell the Magistrate that the appellant directed the driver to take the vehicle towards Rangamatiya. She denied the suggestion projected to her but she had admitted that she did not state to the Magistrate or to the Investigating Officer that due to forceful sexual intercourse, she lost her sense. Even, she did not disclose about the pain in her abdomen to her mother. She denied the suggestion projected to her but she had admitted that she did not state to the Magistrate or to the Investigating Officer that due to forceful sexual intercourse, she lost her sense. Even, she did not disclose about the pain in her abdomen to her mother. The questions were put on certain peripheral matters which are not relevant in respect of the core evidence. She has admitted that she had stated to the Magistrate that there was only one mud wall hut. There has been attempt to derive contradiction having referred to the previous statement. The victim, however, had asserted that she did not state to the Investigating Officer that the appellant took her to "another room" and made her undressed to commit rape against her will. She has even admitted that she did not state to the Investigating Officer that the appellant dropped her at a place near Sonamura bridge Chowmohuni from his vehicle. 38. PW-2, mother of the victim has stated that their residence is situated at Sonapur along with Indo-Bangladesh border. The appellant was engaged in smuggling. The victim used to reside in a rented house at Sonamura, adjacent to the house of the appellant. On 21.02.2015, a female teacher of her school had reported her that: "..........on the valentine day i.e. on 14.02.2015 accused Anowar Hossain sent a gift pack of chocolates to Sonamura English Medium School for its delivery to my eldest daughter Farhana Islam. It was also informed to me that before delivery of that gift pack my eldest daughter was asked by the teacher whether accused Anowar Hossain was known to her or not and when my eldest daughter told the teacher that she called accused Anowar Hossain as uncle, the said gift pack of chocolates was handed over to my daughter." The female teacher, according to PW-2, did not inform anything more. But she has corroborated that when victim returned home from her school, she along her two sisters [PWs-5 and 6] asked her to disclose everything to them. Initially, she appeared frightened and thereafter, the victim told them that the appellant used to restrain her on her way to the school on the road almost every day. The appellant expressed his love towards the victim. Initially, she appeared frightened and thereafter, the victim told them that the appellant used to restrain her on her way to the school on the road almost every day. The appellant expressed his love towards the victim. Even he had threatened the victim that if she had refused to marry him, he would kill their youngest daughter Fahmida and their cousin Farhana Islam. The victim told them that on 28.01.2015 when she was proceeding towards her school on foot from the motor stand, in a place nearby Rainbow Club, she was intercepted by the appellant who arrived there with a vehicle. The appellant lifted her daughter inside the vehicle by gagging her mouth by his palm. Thereafter, the vehicle rushed towards Rangamatiya and from there, the vehicle took a turn towards the village road. After reaching one house, the appellant compelled her to change her dress and to wear saree. One qazi and two cameramen were waiting there for performance of marriage. The appellant compelled her daughter to accept the proposal of marriage with the help of qazi. Her daughter told that one Bacchu was owner of that house. Their lived two aged women and one child. On completion of the marriage, everybody was asked to leave that room and then the appellant made her daughter undressed and committed intercourse on "three occasions". For such forceful intercourse, she became senseless. When she regained her sense, the appellant asked her daughter to wear the school uniform. The appellant released her daughter near Sonamura Motor Stand. But before releasing her, she was threatened not to divulge the fact to anyone. Out of fear, the victim did not reveal anything to anyone. It has been also stated by the victim that the appellant threatened to circulate the video clip of the marriage in the internet. She complained of adnominal pain. She had stated that on 24.02.2015 she filed the written ejahar [Exbt. 2]. Her daughter was taken to Sonamura CHC for her medical examination and she was also sent to the Judicial Magistrate for recording her statement. The police seized the original birth certificate [Exbt. 3] which was later on released on bail. To show that PW-2 had suppressed the material fact, the cross-examination was accordingly directed but PW-2 denied all the suggestions contrary to what she has stated in the examination-in-chief. The police seized the original birth certificate [Exbt. 3] which was later on released on bail. To show that PW-2 had suppressed the material fact, the cross-examination was accordingly directed but PW-2 denied all the suggestions contrary to what she has stated in the examination-in-chief. She has admitted that she did not mention her meeting with PW-4 in the FIR. Even she did not state that her two sisters were reported by her in respect of what she had learned from the female teacher [PW-4]. She has admitted that she did not reveal in the FIR that the driver of the vehicle was directed to ply the vehicle towards Rangamatiya or that one qazi and two cameramen were waiting in that house for purpose of marriage. Cross examination was directed towards why the every bit of details were not exposed in the FIR but she has admitted thus: "......in the written FIR I have mentioned that my daughter .... [the name of the victim] somehow made her free from the grip of accused Anowar Hossain and returned home at about 04.30 PM." Even, she has made the following statements which has serious bearing in ascertaining the attending circumstances towards revelation of the real fact: "It is true that in the written FIR I did not mention that Farhana told us that accused Anowar Hossain also threatened my daughter .... [the victim] to kill her and my youngest daughter and her cousin if ....[the victim] disclosed the fact to anyone and that accused Anowar Hossain released my daughter ....[the victim] at Sonamura Motor stand after completion of School hours. It is true that I did not either mention in the written FIR or state to the investigating police officer that on the day of occurrence, in the evening while ....[the victim] was reading her books she complained severe abdominal pain for which I consulted with one Homeopath who prescribed some medicines for my daughter ....[the victim] and that my daughter took medicine regularly but she had to suffer from abdominal pain for 6/7 days." She has denied that she had tutored the victim for framing the appellant. 39. 39. It is to be noted with adequate emphasis that the prosecution had completely failed to adduce in the trial, the witnesses who were examined under Section 161 of the Cr.P.C. by PW-13 and who did narrate what happened in the second place of occurrence. Not a single witness neither from the crowded place on the road wherefrom the victim was lifted' inside the vehicle nor from the second place of occurrence where the inmates of that house were in close proximity of 'marriage' or "sexual intercourse", if any had taken place could be adduced. Even though, PW-1 has made a categorical statement that the owner of the house namely Bachchu Miah raised objection for bringing a school going child in his house when the appellant, according to the victim girl, assured him [Bachchu Miah] that he would leave with the school going girl shortly. This circumstances as introduced by the victim girl has unfolded a 'charged situation'. Evidently, there is no witness for kidnapping with or without intent of marriage, marriage and sexual intercourse after driving all persons in the hut in the noon and when there is a single hut. Even, PW-2 has negated the information as claimed to have imparted to her by PW-4. PW-4 has stated that she had informed PW-2, the mother of the victim about the rumor of marriage of her daughter, but PW-2, the mother of the victim has stated PW-4 had only informed that someone had sent chocolates for her daughter. The other witnesses from that school, PWs-3, 7 and 8 did not tell anything about the rumor of marriage. Even PW-4 did not reveal to the police who were the guardians reported her about the rumor. The statement of PW-1 if read keenly, it would be apparent she has negated that PWs-5 and 6 were present when she told the occurrence to her mother [PW-2] but PWs-2, 5 and 6 have claimed that the victim revealed the occurrence when they are all together and as such, unless this court believes the victim entirely the finding of conviction cannot be sustained. The medical examination of the victim did not categorically state that the victim was subjected to forceful intercourse but her hymen was found torn and PW-12 has stated for cycling even the hymen can get torn. The victim herself has stated that she used to go to her school by cycling. The medical examination of the victim did not categorically state that the victim was subjected to forceful intercourse but her hymen was found torn and PW-12 has stated for cycling even the hymen can get torn. The victim herself has stated that she used to go to her school by cycling. That apart, while discussing about rape, even if this court acceded that the victim was not physically so powerful to resist the appellant but for forceful intercourse according to the medical jurisprudence, the vulva would in all likelihood be injured. But there is no such injury. 40. That apart, the behavior of the victim, even though she is of tender age is quite strange. She has stated that the appellant used to visit her rented house. This shows that the victim had close acquaintance with the appellant. Moreover, it, further, appears that the appellant was close to the family and he had the financial transaction with the family [see the testimony of PW-2]. Even the homeopath doctor to whom the victim and her mother visited on complaint of abdominal pain was not produced in the trial. Foremost of all that the victim did conceal the entire occurrence from all. For non-disclosure, the reason that has been shown is fear from the appellant but the victim herself has stated that she had started going to the school as usual and the appellant used to intercept her in the road. As the appellant was a dangerous man, according to the victim, she kept silence but she had also stated that the video of the marriage used to be played in the markets and from there, the mothers of her friends came to know why fear thereafter? She disclosed the name of her friend, in the said statement recorded under Section 164(5) of the Cr.P.C., but none of them were produced in the trial nor their mother. When the appellant was so vigilant about revelation of the occurrence the allegation of playing the video in the market appears quite an exaggeration which has been projected by PW-1. Even existence of such video could not be traced by the police. Not a single witness could be procured from any market or other places who saw the video. In such circumstances, whether the victim can be relied to return the finding of conviction? 41. Even existence of such video could not be traced by the police. Not a single witness could be procured from any market or other places who saw the video. In such circumstances, whether the victim can be relied to return the finding of conviction? 41. Having considered the decision of Gurmit Singh (supra) and Chandraprakash Kewal Chand Jain (supra) the victim no doubt is at par with injured witness and not accomplice to the crime. The statement of Bachchu Miah was recorded under Section 164(5) of the Cr.P.C. Thus, this court has to weigh the testimony of the victim in terms of the following passage of Gurmit Singh (supra): "9. We are in respectful agreement with the above exposition of law. In the instant case our careful analysis of the statement of the prosecutrix has created an impression on our minds that she is a reliable and truthful witness. Her testimony suffers from no infirmity or blemish whatsoever. We have no hesitation in acting upon her testimony alone without looking for any 'corroboration'. However, in this case there is simple corroboration available on the record to lend further credence to the testimony of the prosecutrix." [Emphasis added] The victim's own statement that the owner of the house was seriously annoyed with the appellant and had charged the appellant why he had brought a girl with a school uniform in his house. Even one lady challenged the appellant on identity of the victim. In such circumstances, whether it is believable that those people would allow the appellant and the victim to stay inside their hut with Kazi and photographers. It does not appear sensible. Even the delay in disclosing the occurrence to the mother of the victim [PW-2] is quite unnatural. That apart, the victim in the testimony has stated that she was taken to another room after the marriage was solemnized but the said very statement was disbelieved by the investigating officer. The only other hut indexed as 'C' as available in the proximity was not shown as the place of occurrence. No corroborative material has been brought in the evidence to support any part of the transaction. 42. Moreover, the version of the victim in respect of marriage in one hut and rape in other hut has completely made her trustworthiness at peril. No corroborative material has been brought in the evidence to support any part of the transaction. 42. Moreover, the version of the victim in respect of marriage in one hut and rape in other hut has completely made her trustworthiness at peril. The element of exaggeration or imagination in respect of the occurrence has inflated or deflated when PW-2 has categorically stated that the victim was raped thrice in series forcefully. But the victim is silent about such consecutive rape. Moreover, the vulva of the vagina even not found swollen. Though the penetration to the labia majora may not be the essential ingredient, even the rapture of hymen is not material as proof of rape, but from the description of rape it appears that it is not a case of attempt but forceful intercourse out of which the victim lost her consciousness. Even the medical evidence has not been indicated to such violation. 43. Under these circumstances, when there is no sign of violence, no injury on labia majora and the attending circumstances are against the testimony of the victim, it will be unsafe to convict the appellant solely based on the testimony of the victim. The victim's statement has not inspired confidence in us. 44. As consequence of the finding as above, the judgment and order of conviction and sentence as challenged in this appeal, are set aside on benefit of doubt. The appellant be set at liberty forthwith. In the result, this appeal stands allowed. Send down LCRs forthwith.