JUDGMENT : Md. Mumtaz Khan, J. 1. Appellant has preferred this appeal assailing the judgment, order of conviction and sentence dated April 30, 2005 passed by the learned Additional Sessions Judge, 1st. Fast Track Court, Malda in Sessions Trial No. 4(5) of 2003 arising out of Sessions case No. 79 of 2003 thereby convicting the appellant for the commission of the offence punishable under Section 376 of the Indian Penal Code(hereinafter referred to as IPC) and sentencing him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,000/- in default to suffer simple imprisonment for six months more. 2. On June 20, 1991 P.W.1 lodged a written complaint (Ext.1) scribed by one Farid Ali before the officer in charge, English Bazar P.S., Malda alleging that on June 12, 1991 at about 4/5 PM when her minor daughter aged about 11 years went to fetch water from tap beside their house then at that time appellant forcibly took her away and raped her. Thereafter, local people got her daughter admitted to the Railway Hospital in bleeding condition. As he was away for some work he could not inform the incident to police in time. 3. On the basis of the above written compliant of P.W.1 English Bazar P.S. Case No. 176 dated June 20, 1991 was started by P.W.6 against the appellant under Section 376 IPC. P.W.9 initially investigated the case and thereafter investigation was taken up by P.W.5 who after completion of investigation submitted charge sheet against the appellant under Section 376 IPC. 4. On May 28, 2003 charge under Section 376 IPC was framed against the appellant and on his pleading not guilty to the charge, trial commenced. 5. Prosecution in order to prove its case examined 9 witnesses and also produced and proved the FIR, seizure list, rough sketch map with index, statement of the victim girl recorded under Section 164 Code of Criminal Procedure (hereinafter referred to as CrPC), medical report etc. and thereafter on completion of trial and after examination of the appellant under Section 313 CrPC learned trial judge passed the impugned judgment. 6. Mr. and thereafter on completion of trial and after examination of the appellant under Section 313 CrPC learned trial judge passed the impugned judgment. 6. Mr. Moinak Bakshi, learned advocate appointed as amicus curiae by this court to represent the appellant submitted that the order of conviction and sentence passed against the appellant are not sustainable in law due to delay in lodging the FIR, discrepancy in between the statements made in the FIR by P.W.1 with P.W.2.,failure to produce the treatment sheet, bed head tickets etc. relating to treatment of the victim, failure to examine the victim girl and mystery surrounding her reported death, doubt with regard to the recording of the statement of the victim girl and non examination of the Magistrate. According to Mr. Bakshi prosecution has failed to prove the charge against the appellant beyond shadow of doubt. 7. Ms. Sinha, learned advocate appearing for the state supported the conviction and sentence passed against the appellant and submitted that victim initially did not disclose the incident to any one and she was initially taken to the hospital on the very date of incident and was released on 15th June, 1991 but she was again taken to the hospital on 19th and that non examination of the victim girl at first during her stay in the hospital is laches on the part of the investigating officer for which prosecution case will not suffer. She further submitted that any contradiction or embellishment in the evidence of father and mother of the victim cannot make the prosecution case doubtful in the light of the medical report which corroborated the prosecution case. Ms. Sinha relating on the decision of Karnel Singh Vs. State of MP reported in 1995 C Cr LR (SC) 340 with regard to the defective investigation, the State of Maharashtra, Vs. Priya Sharan Maharaj & Ors. reported in 1997 C Cr LR (SC) 111 in which matter of not reporting the incident by the victim at the earliest and Satpal Singh Vs. State of Haryana reported in (2010)3 C Cr LR (SC) 45 with regard to the delay in lodging the first information report, in support of her submissions. 8. We have considered the submissions of the learned advocates appearing for the respective parties and have given our thoughtful consideration to the evidence on record to consider the propriety of the impugned judgment. 9. 8. We have considered the submissions of the learned advocates appearing for the respective parties and have given our thoughtful consideration to the evidence on record to consider the propriety of the impugned judgment. 9. It was evident from the evidence of the doctor(P.W.3) and the medical report (Ext. 3) that on June 12, 1991 he examined the victim girl at the Eastern Railway Hospital, Malda and during examination found the victim girl had minor injury in her perinum, tear in the lateral vaginal wall from about mid-position of the vagina up to the vault and the blood clot in the wound which was cleaned and the wound was repaired and accordingly opined that probable cause of injury was forceful sexual assault. On the basis of the radiological evidence he found the victim girl aged about 10/12 years. He was cross-examined by the defence but nothing came out contrary to his statements-in-chief. Interestingly, he was not challenged by the defence that on June 12, 1991 he did not examine the victim at the Malda Railway Hospital nor found any injury on her private part. On the other hand by putting suggestion to the doctor defence tried to prove that the injury sustained by the patient might be caused by masturbation which the doctor denied. 10. Learned court below took into consideration the evidence of P.W.1 and P.W.2, the parents of the victim girl, beside the evidence of the doctor and the medical report to arrive at the conclusion that prosecution had been able to prove the charge of rape against the appellant and accordingly passed the impugned judgment. 11. Admittedly, none of the witnesses examined by the prosecution is the witness to the occurrence. The entire prosecution case rests on the evidence of P.W.1 and P.W.2, the parents of the victim girl, P.W.3,the doctor, who treated the victim girl and prepared the medical report. The victim girl who was examined by the investigating officer during investigation and made statements before the Magistrate under section 164 Cr.P.C. was not examined by the prosecution as being dead and both the independent witnesses examined by the prosecution turned Hostile. 12. According to P.W.1, father of the victim girl and the FIR maker, on the relevant date at about 4/5 p.m. his minor daughter (victim) went to fetch water from a nearby tap as per his instruction. 12. According to P.W.1, father of the victim girl and the FIR maker, on the relevant date at about 4/5 p.m. his minor daughter (victim) went to fetch water from a nearby tap as per his instruction. Thereafter, he heard an alarm raised by her daughter and accordingly, he went there. His wife (P.W.2) also went there and asked their daughter what has happened but she did not say anything. They found bleeding from her vagina and as such they got her admitted to Malda Railway Hospital. After that he went away for his work as a mason under a contractor. After 5/6 days, on return he learnt from his daughter and wife that the appellant had forcibly raped his minor daughter for which she sustained bleeding injury from her private part. Accordingly, he lodged the FIR (Ext.1) scribed by Farid. He identified the appellant in course of his examination before court. He was cross-examined by the defence and during cross-examination he admitted that he did not go to the hospital during his daughter's admission there but specifically sated that at that time he was out of his house for the purpose of his work. He also admitted that when he got his daughter admitted to the hospital he came to know that she was raped by appellant. 13. The above statement of P.W.1 also found corroboration from P.W.2. P.W.2 has also specifically stated on oath that on the relevant date and time her daughter (victim) went to fetch water and after about 15 minutes thereafter she heard alarm of her daughter. She rushed there and saw bleeding from her private part. She then called her husband and thereafter they took their daughter to Malda Railway Hospital and got her admitted there. Thereafter, her husband went outside Malda for his work. Her daughter remain admitted for two days and thereafter she was discharged from the hospital but after about a day again bleeding started from her private parts and as such she was again taken to the hospital and then it was disclosed by the doctor that it was a case of rape. She further deposed that prior to that her daughter did not disclose about commission of rape due to fear of the accused. Subsequently, on being asked her daughter disclosed that the culprit threatened her that he will kill her father if she discloses anything. She further deposed that prior to that her daughter did not disclose about commission of rape due to fear of the accused. Subsequently, on being asked her daughter disclosed that the culprit threatened her that he will kill her father if she discloses anything. On her fervent and long persuasion ultimately her daughter disclosed that it was the appellant who committed rape on her. After 5/6 days when her husband returned back she and her daughter reported everything to him and then he again took their daughter to the hospital and got her admitted there. She was cross-examined by the defence at length but nothing came out contrary to her statements-in-chief. The above statements of P.W.1 and P.W.2 also found corroboration from the statements of the victim girl made before the Magistrate (Ext.7) and the medical evidence. 14. There is no denying fact that in the instant case victim girl was not examined by the prosecution. Both the parents of the victim girl (P.W.1 and P.W.2) have specifically stated that their daughter (victim) is now dead as she committed suicide. They, however, could not say the exact date of death. There are however, certain contradictions in their statements with regard to the exact date of death of the victim girl as according to P.W.1 she committed suicide after one month of incident while according to P.W.2 she committed suicide after two months of incident. But P.W.5,the investigating officer, has specifically stated that on October 11, 1991 victim girl was sent to the learned Magistrate for recording her statements under section 164 Cr.P.C. Ext.7, the statements of the victim girl, exhibited on consent, also shows that the same was recorded by the Magistrate on October 11,1991. Evidence on record shows that P.W.1 is a mason working under a contractor and not a very literate person and P.W.2 is his wife and she too seems to be not a literate lady. They were examined in court after about 12 years of the incident. Probably, this may be the reason for such contradiction as to the exact time of death of the victim girl. However, facts remains that defence has not disputed or denied the death of the victim girl nor produced any cogent and reliable evidence to disprove the specific assertions of P.W.1 and P.W.2 relating to death of the victim girl. Probably, this may be the reason for such contradiction as to the exact time of death of the victim girl. However, facts remains that defence has not disputed or denied the death of the victim girl nor produced any cogent and reliable evidence to disprove the specific assertions of P.W.1 and P.W.2 relating to death of the victim girl. Be that as it may, non-examination of the victim girl can not be a ground for acquittal of the accused, if there is evidence otherwise available in proving the charge. 15. P.W.3, the doctor, during examination of the victim girl in the hospital on the very date of alleged incident found injury in her perinum, tear in the lateral vaginal wall, blood clot in the wound which was cleaned and the wound was repaired and opined that probable cause of injury due to forceful sexual assault. He has specifically stated that the victim was first admitted in the hospital on June 12, 1991 at 6 p.m. and remained in the hospital up to June 15, 1991. Thereafter, she was readmitted on June 19, 1991 with bleeding from the vagina of moderate degree. During cross-examination he admitted that history of the case was not mentioned in his report nor he took precaution required to be taken as per the Modi's jurisprudence or any other jurisprudence as it was not disclosed to him at the time of examination that it was the case of rape or police case. He denied the defence suggestion that the injury sustained by the victim might be caused by masturbation. It is true that treatment sheet, bed-head ticket and other medical papers relating to the treatment of the victim girl were not produced during trial but non production of those documents will not render the evidence of the doctor disbelievable. Moreover, no such suggestion was given to the doctor that he did not examine the victim girl in the hospital and/or that victim girl was not admitted in that hospital on the relevant date with bleeding injuries in her vagina. In such circumstances, there was no reason to disbelieve the version of the doctor. 16. The evidence of the parents of the victim girl on oath appear to be convincing, trustworthy and believable and no significant contradiction or infirmity has been brought to our notice. In such circumstances, there was no reason to disbelieve the version of the doctor. 16. The evidence of the parents of the victim girl on oath appear to be convincing, trustworthy and believable and no significant contradiction or infirmity has been brought to our notice. Also there appears to be no reason why they should falsely implicate the appellant, and there is in fact, nothing on record to suggest that they had any reason to falsely implicate him. However, in course of examination of the above witnesses certain exaggeration and discrepancies cropped up. 17. With regard to the discrepancies, it is the settled proposition that the discrepancies found in the evidences of witnesses cannot affect their credibility unless such discrepancies are so vital. Corroboration of evidence with mathematical niceties cannot be expected in criminal cases and trivial discrepancies ought not to obliterate an otherwise acceptable evidence and the court will have to bear in mind that different witnesses react differently under different situations. One can not come across a witness whose evidence does not contain some exaggeration or embellishment. In the matter of State of U.P. vs. M. K. Anthony, reported in (1985) 1 SCC 505 it has been observed by the Hon'ble Apex Court that in examining the truthfulness of the evidence, the Appellate Court will have to attach due weightage to the appreciation of evidence by the Trial Court. Unless there are reasons weighty and formidable it would not be proper for the Appellate Court to reject the evidence on the ground of minor variations or infirmities in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. 18. In the case in hand, though we found certain contradictions and embellishment in between the evidence of P.W.1 and P.W.2 but those are not so weighty and formidable touching the merit of the case. Regarding non examination of the Magistrate who recorded the statements of the victim girl, we find from the record that the statements in question was exhibited on consent of the defence. In such circumstances examination of the Magistrate would have been a mere formality. As such non examination of the Magistrate who recorded the statements of the victim girl was not fatal for the prosecution. 19. In such circumstances examination of the Magistrate would have been a mere formality. As such non examination of the Magistrate who recorded the statements of the victim girl was not fatal for the prosecution. 19. Regarding delay in lodging the FIR, it is the settled proposition of law that it is not always a circumstance on the basis of which the prosecution case may be said to be fabricated, but it all depends on the facts and circumstances of each case where the circumstance of delay may lead to serious consequences. In the instant case, we find from the evidence of P.W.s on record that the incident in question took place on June 12, 1991 in the evening in between 16.00/17.00 hours and on the same evening at 18.00 hours she was admitted in the Eastern Railway Hospital, Malda having mild vaginal bleeding and tear in the lateral vaginal wall which had to be repaired and she had to remain admitted there till June 15, 1991. Then again on June 19, 1991 she had to be admitted when bleeding from her private part increased. It also appears from the evidence on record that after initial admission of the victim girl, P.W.1 went out for job and returned back after 5/6 days and only after return it came to his knowledge that victim girl was raped. It also transpires from the evidence-on-record that the victim initially did not disclose the incident due to fear and disclosed only after much persuasion and only then written complaint (Ext.1) was submitted at the P.S. by P.W.1. Thus, from the above we find that the delay in lodging the FIR has been satisfactorily explained. 20. Therefore, taking into consideration the facts and circumstances on the basis of which the impugned judgment is passed, we are of the opinion that the impugned judgment does not require our interference on the above grounds in view of the settled propositions of law as discussed herein above. 21. We, therefore, dismiss the appeal and affirm the conviction and sentence imposed on the appellant. 22. A copy of this judgment along with the Lower Court Records may be sent down to the learned Trial Court forthwith. 23. Urgent photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard. I agree. 22. A copy of this judgment along with the Lower Court Records may be sent down to the learned Trial Court forthwith. 23. Urgent photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard. I agree. : Jay Sengupta, J.