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2019 DIGILAW 837 (GAU)

Bakul Borah v. State of Assam

2019-07-18

RUMI KUMARI PHUKAN

body2019
JUDGMENT : Rumi Kumari Phukan, J. 1. Heard Mr. NNB Choudhury, learned counsel appearing for the appellant/accused as well as Mr. D. Das, learned Addl. P.P., Assam appearing for the State/respondent. None is present for and on behalf of respondent No. 2/informant. 2. This appeal is preferred against the judgment and order dated 24.08.2018, passed by the learned Addl. Sessions Judge, Sonitpur at Tezpur, in Sessions Case No. 308/2015, whereby the appellant/accused Bakul Borah has been convicted u/s. 376(1) of the IPC and sentenced him to undergo rigorous imprisonment for 12 (twelve) years and to pay a fine of Rs. 3,00,000/- (Rupees three lakhs), in default simple imprisonment for six months. Out of the fine imposed, fifty percent of the same was directed to be paid to the victim u/s. 357 of the CrPC. 3. Briefly stated, the prosecution case is that on 08.05.2013, the victim was admitted in Shraddha Shelter Home, Baroholia, Tezpur, who was carrying unmarried pregnancy and she gave birth to a male child on 31.07.2013, at Kanaklata Civil Hospital, Tezpur. On 1.8.2013, the victim has given her statement that the father of her child is Mr. Bakul Borah, who is a member of Child Welfare Committee, Tezpur, Sonitpur. With the above facts, an FIR filed on 06.08.2013 by Aklima Begum, the Superintendent of Shraddha Shelter Home, Baroholoia stating that on 02.08.2013, Smti Namita Baruah Borah, the sister-in-law of accused Bakul Borah, threatened to kill the victim and her child at Kanaklata Civil Hospital. 4. On the basis of the FIR, the Tezpur P.S. Case No. 981/13, u/s. 493/376/417/506 of IPC was registered and on completion of the investigation, charge-sheet was filed against accused Bakul Borah and Smti Namita Baruah Borah, u/s. 493/376/417/506 of IPC. 5. On appearance of the accused persons, the copy of the charge sheet and other relevant materials were furnished to them and the case was committed to the court of Sessions as per Section 209 CrPC, by the Chief Judicial Magistrate, Sonitpur, Tezpur and thereafter this case is transferred to the Court of learned Addl. Sessions Judge, Sonitpur for trial. 6. On appearance of the accused persons before the trial Court and after hearing both sides, charge u/s. 376(2)(f) of IPC was framed against accused Bakul Borah and charge u/s. 506 of IPC was framed against accused Smti Namita Baruah Borah. Sessions Judge, Sonitpur for trial. 6. On appearance of the accused persons before the trial Court and after hearing both sides, charge u/s. 376(2)(f) of IPC was framed against accused Bakul Borah and charge u/s. 506 of IPC was framed against accused Smti Namita Baruah Borah. The contents of the charges were read over and explained to the accused persons, to which they pleaded not guilty and claimed to be tried. 7. During the trial, the prosecution examined altogether nine witnesses including the informant (PW. 1), the victim (PW. 5), the Medical Officer (PW. 6) and the I.Os. of the case i.e. PW. 7 and PW. 8. The prosecution also exhibited some documents in support of their case in the form of Ext. 1 to Ext. 4. The defence examined none in support of their case and after recording the statement of the accused persons u/s. 313 CrPC and hearing argument of the parties, the learned trial Court sentenced the present appellant/accused, as stated above to undergo rigorous imprisonment for 12 (twelve) years and to pay a fine of Rs. 3,00,000/- (Rupees three lakhs), in default simple imprisonment for six months, by the impugned order dated 24.08.2018, passed in Sessions Case No. 308/2015, along with direction for awarding compensation. 8. Being aggrieved by the aforesaid order of judgment and conviction, the present appeal has been preferred by the accused/appellant, on the ground inter alia that the learned trial Court has totally failed to appreciate different vital aspects of the matter and has come to an erroneous finding. Referring to the entire matters on record, it has been urged before this Court that the prosecution case suffers from various infirmities, which is more than enough to shake the authenticity of the allegation. Following infirmities have been pointed out: (i) In the FIR there is no allegation of rape on the part of the accused except the fact that the victim was brought to the Shraddha Shelter Home at the pregnant stage by the accused/appellant. (ii) The victim girl despite being a major, aged more than 22 years at the time of occurrence, never disclosed the matter about such incident to anybody neither to family members of the accused nor to her family members, while she went to her house after the said incident and thus till the birth of the child, she remain silent all through. (iii) Although at the instance of the victim, the DNA report was prepared to decide the paternity of the child Sujit Borah but the DNA report does not indicate that the accused/appellant is the father of the child (iv) Admittedly the victim came to the house of the accused in November, 2012 and the child born on 31.07.2013 and she was taken to the shelter home on 8.5.2013 and at no point of time it is disclosed about the affair conducted by the accused person. (v) The victim for first time i.e. after the delivery of the child simply informed the witnesses PWs. 1-4 that the accused is the father of the child but she never stated that the accused has committed rape upon her, which indicate that the affair was consensus. (vi) No any supporting evidence as regards the allegation raised by the victim in course of trial, nor from her family members or any other witness has been examined, in support of the evidence of the victim. (vii) The evidence of PW. 2 to PW. 4 is contradicted by the I.O. on material aspect, which indicates that the witnesses have developed the story. (viii) The admission of the victim woman as regard the Exhibit-A, where she admitted that she was roaming with another boy of the locality in absence of the family of the accused, is relevant to show her conduct that she used to roam with other person in a suspicious manner. 9. I have heard the argument of Mr. NNB Choudhury, learned counsel appearing for the appellant and also heard Mr. D. Das, learned Addl. P.P., Assam for the State respondent. 10. I have also gone through the case record of the trial Court including the statement of the witnesses and impugned judgment. 11. PW. 1, Smti Aklima Begum stated in her evidence that in the month of May, 2013, while she was working as the Superintendent of Shraddha Shelter Home, Baroholoia, accused Bakul Borah came to the Shelter Home and told her that his niece was pregnant and as it was difficult for him to keep her in his residence, he asked to give her shelter in the home. The informant made an application and then the victim was kept in the shelter home. PW. The informant made an application and then the victim was kept in the shelter home. PW. 1 further stated that on enquiry about the pregnancy, the accused informed that he could not say by whom the victim was pregnant and asked her to enquire from the victim. She asked the accused to keep contact with them. On 31.07.2013, the victim delivered a boy by caesarean operation. Then she went to the house of accused Bakul Borah and informed him regarding the admission of the victim in hospital for delivery, who received the letter. She further stated that on 31.7.2013, in the evening the victim informed her in the hospital that father of the child whom she had given birth, was accused Bakul Borah. On 02.08.2013, accused Namita Baruah Borah came to the hospital and threatened the victim that if she disclose the name of Bakul Borah, she would have to face dire consequences. The said fact was disclosed to this witness by two other staff of their organization, namely Nabanita Goswami and Lalita Haloi. On the query of this witness, the victim affirmed before her that Namita Baruah Borah had visited and threatened with dire consequences if the victim disclosed the name of Bakul. PW. 1 lodged the FIR (Ext. 1), wherein Ext. 1 (1) is her signature. In her cross examination she has stated that at the relevant time accused Bakul Borah was a member of Child Welfare Committee (CWC) and she denied the defence suggestion that since she wanted to remove accused Bakul Borah from the CWC and they wanted to stop the schemes run by the organization to which Bakul Borah belonged, she along with others conspired and lodged a false case against the accused. 12. PW. 5, the victim stated in her evidence that her uncle Bakul Borah brought her from her aunt's home at Guwahati to Tezpur to give a job at NGO. She was an employee as Crech Keeperat Eight Brothers (NGO) for about 1½ years but her uncle Bakul Borah did not make payment to her for her service. Thereafter she was brought to the house of Bakul Borah for about 1½ years and during that period accused Bakul Borah raped her for several times in absence of her aunt. She opposed but he did not pay any heed to it. Thereafter she was brought to the house of Bakul Borah for about 1½ years and during that period accused Bakul Borah raped her for several times in absence of her aunt. She opposed but he did not pay any heed to it. She did not report to any person as she was in the house of her uncle Bakul Borah. After about three months she went to her parental home at Gohpur. When she became pregnant for about seven months, she came to the house of the accused and informed about the incident to her aunt Dipjoyti Borah, the wife of accused Bakul Borah. Then she took her to Mirdha Hospital for check up and they confirmed that she was pregnant for seven months. Then the accused took her to Shraddha Shelter Home at Baroholia and kept her there. On 31.07.2013, she gave birth to a male child at Kanaklata Civil Hospital, by way of caesarean operation and the inmates of the shelter home came to the hospital and then she narrated them about the incident how she conceived. On 01.08.2013 she informed the whole incident to her madam Nabanita Goswami (PW. 2) and Lalita Haloi (PW. 3). She further stated that after some days her aunt/accused Namita Borah came to the shelter home and threatened to kill her and her child. Then she informed the matter to Aklima Madam, who filed an FIR before police station. Police produced her before the Magistrate for recording her statement and Ext. 2 is her statement u/s. 164 of CrPC and Ext. 2(1) to Ext. 2(4) are her signatures. 13. In her cross examination, the victim has stated that accused Bakul Borah is not her own uncle. The victim cannot recall the exact dates in which the accused committed rape on her. She denied the defence suggestion that Aklima Begum (PW. 1) and others conspired many times to ousted accused Bakul Borah from Child Welfare Committee of Sonitpur. The victim also denied the defence suggestion that her child is not from the side of accused Bakul Borah and she cannot say on which date accused Namita Baruah Borah came to her shelter home and threatened to kill her and her child. 14. PW. The victim also denied the defence suggestion that her child is not from the side of accused Bakul Borah and she cannot say on which date accused Namita Baruah Borah came to her shelter home and threatened to kill her and her child. 14. PW. 2, Nabanita Gowami in her evidence stated that on 08.05.2013, accused Bakul Borah brought the victim to the Shraddha Shelter Home, Soft seed, Baraholia, Tezpur and informed them that the victim was pregnant and she should be given shelter in the Shraddha Shelter Home, run by their NGO. The accused also gave an application and accordingly the victim was given shelter in the shelter home. On 31.07.2013, the victim gave birth to a male child by Caesarean. This witness stated the fact of admission of the victim in the hospital for delivery was informed to the accused in writing by Aklima Begum, the Superintendent After the birth of the child, the victim disclosed before her that accused Bakul Borah was the father of the male child. Then they informed the matter to Aklima Begum, the Superintendent of the NGO. Later on, accused Namita Borah, aunt of the victim, came to Kanaklata Civil Hospital and threatened her with dire consequences for taking the name of Bakul. In her cross examination, the PW. 2 has stated that she attends the NGO from 10 a.m. every day and normally she stays till 5 p.m. Accused Bakul Borah was a member of CWC and that he used to visit the NGO premises as earlier occasion too. The witness denied the defence suggestion that the victim did not made the disclosure of parenthood of the child given birth by the victim and that the victim did not name Bakul as the father of the child. 15. PW. 3, Smti Lalita Das in here evidence stated that accused Bakul Borah brought the victim to their Shraddha Shelter Home with an application and asked to give shelter of the victim, who was pregnant at that time. The victim was taken to Kanaklata Civil Hospital as her hemoglobin was less and accused Bakul Borah was informed about the same but he did not respond. On 31.07.2013, the victim gave birth to a boy. On the same day the victim disclosed before them that Bakul Borah was the father of the child. The victim was taken to Kanaklata Civil Hospital as her hemoglobin was less and accused Bakul Borah was informed about the same but he did not respond. On 31.07.2013, the victim gave birth to a boy. On the same day the victim disclosed before them that Bakul Borah was the father of the child. Then they informed Aklima Begum, the Superintendent of the NGO about the disclosure made by the victim. Later on, Namita Baruah Borah threatened the victim in the hospital as she had disclosed the name of accused Bakul Borah. 16. PW. 4, Mustt. Khudeja Khatoon in her evidence stated that on 08.05.2013, accused Bakul Borah brought the victim and given her shelter in the Shraddha Shelter Home and at that time the victim was eight months pregnant. On 31.07.2013, the victim gave birth to a male child at Kanaklata Civil Hospital. After birth of the child and on the next day the victim informed that accused Bakul Borah was the father of the child whom she had given birth. She disclosed to Lalita and Nabanita Goswami baideo. She also visited the hospital to give food to the victim and then the victim told her the same. Accused Namita Baruah Bora threatened the victim for taking the name of accused Bakul as the father of the said child. In her cross examination, this witness stated that she resides in the NGO premises and has been there under shelter since 5/6 years. She denied the defence suggestion that the victim had not disclosed the name of father of the child in the shelter home before the birth of her child. Bakul Borah was a CWC member and that he used to visit the shelter home earlier too. 17. PW. 6, Dr. Arup Manta, Jr. Scientific Officer, Directorate of Forensic Science, Kahilipara stated in his that on 25.07.2014, the Director received one parcel consisting of three exhibits, sent in thermo flax containing ice which were sealed with the impression sealed corresponding with the seal impression forwarded. Description of articles: (1) One sealed EDTA vial contained 2 ml approx. liquid blood of the victim collected by Doctor of Tezpur Medical College with blood donor authentication card, Marked as Ext. No. DNA 1014/14, (2) One sealed EDTA vial contained 2 ml approx. Description of articles: (1) One sealed EDTA vial contained 2 ml approx. liquid blood of the victim collected by Doctor of Tezpur Medical College with blood donor authentication card, Marked as Ext. No. DNA 1014/14, (2) One sealed EDTA vial contained 2 ml approx. liquid blood of baby Sujit Borah collected by Doctor of Tezpur Medical College with blood donor authentication card, Marked as Ext. No. DNA1015/14 and (3) One sealed EDTA vial contained 2 ml approx. liquid blood of Bakul Borah collected by Doctor of Tezpur Medical College with blood donor authentication card, Marked as Ext. No. DNA 1016/14. 18. The aforesaid articles endorsed to the PW. 6, by the Director for examination and the result of DNA finger printing analysis shows that: DNA from the source of the above exhibits were isolated by organic extraction method and subjected to multiplex PCR reaction using Amp SLSTR identifier kit The amplified product along with controls were run on automated DNA sequencer and analysis was carried out using genemapper ID V3.2 software with respect to standard ladder. The result and allene distribution in different loci in the different exhibits were studied and it was observed that one of the maternal allene of the amplified loci of exhibit No. DNA. 1015/14 (baby) matched with one of the respective allene in the DNA profile of exhibit No. DNA. 1014/14 (mother). The non maternal allene of the exhibit No. DNA. 1015/14 (baby) is not matching with the DNA profile of exhibit No. DNA. 1016/14. The PW. 6 proved the forensic report as Ext. 3 wherein Ext. 3(1) is his signature. In his cross examination, PW. 6 he has stated that the aforesaid DNA profile were sent in connection with Tezpur PS case No. 981/13 and the mother of the baby is the victim having some other father but Bakul Borah is not the father of baby Sujit Borah. 19. PW. 7, Atul Saikia has narrated various stages of investigation conducted by him including lodging the policing case, recording statement of witnesses, production of the victim before the Magistrate for recording her statement u/s. 164 CrPC but before completion of the investigation, he was transferred and he handed over the case diary to the office-in-charge concerned. 20. PW. 8, Subaleswar Deka is another I.O. of the case, who also conducted some part of investigation of the case. 21. The PW. 20. PW. 8, Subaleswar Deka is another I.O. of the case, who also conducted some part of investigation of the case. 21. The PW. 9 the Magistrate, who recorded the statement of the victim u/s. 164 of the CrPC. 22. Mr. NNB Choudhury, learned counsel appearing for the appellant has vehemently contended that there are serious infirmities in the prosecution story are sufficient to discard the evidence of the victim, as it is not supported by any facts and circumstances and hence not at all convincing and trustworthy. It has been contended that the learned trial Court has misplaced its reliance upon such uncorroborated testimony of the victim as if the statement given by the victim as a gospel truth. It is submitted that although the accused can be convicted for such offence only on sole testimony of the victim but the evidence of the victim must be cogent, true and authentic version of the incident and free from any sort of doubt. 23. It is also contended by Mr. Choudhury that the learned trial Court has failed to appreciate that the DNA report does not support the case of the informant and again the learned trial Court has misconstrued the provision of Section 53-A of the CrPC, while appreciating the DNA report. 24. I have considered the submission of learned counsel for the appellant as well as the learned counsel for the State, Mr. D. Das, who has submitted that despite the fact that the testimony of the victim is no supported by other witnesses but her evidence can be accepted in view of the fact that she is a rustic woman and was under the influence of the accused person for which she did not disclose the matter at the earlier. 25. The learned Addl. P.P., Assam has also pointed out that the victim has filed another FIR on 29.08.2013, before the I.O. after filing of the present FIR, which is found in the case diary but the I.O. has neither reported the matter to the Court nor has registered any case on the basis of the FIR, so filed by the victim which has caused prejudice to the case of the victim. 26. Due consideration is given to the submission of learned counsel for both the parties. 26. Due consideration is given to the submission of learned counsel for both the parties. In a case of sexual assault, the entire case revolve around the evidence of the victim which is of paramount importance and there can be no other opinion that her evidence must be cogent, convincing and reliable. 27. So far as the present case is concerned, a bare reading of the FIR reveals that the victim was admitted in the shelter home while she was carrying pregnancy and only after the birth of the child, she reveals that the father of the child is accused Bakul Baroh and the sister-in-law of accused Bakul Borah threatened the victim and her child. 28. The victim/PW. 5 in her evidence stated that she came to the house of the accused in November, 2012 and she stayed in their house for around 1½ years and during that period, several time the accused committed rape upon her, without paying any heed to her opposition. But she did not report the matter to any other person, event not to her parents when she went to her house and the wife of the accused person. Only when she became pregnant for seven months, she apprise the matter to the wife of the accused and thereafter she was taken to the Shraddha Shelter Home. In the shelter home also, she did not disclose anything about such matter to the employees of the shelter home i.e PW. 1 to PW. 4. It is to be noted that the victim complained to nobody that she was raped by the accused person forcefully and as such the pregnancy was unwanted for her. Till the filing of the FIR, there is no whisper that such an offence was committed by the accused person upon the victim. Only a revelation that "the accused is the father of the child born to the victim", cannot itself amount to an offence u/s. 376 IPC, unless the ingredients of the offence is proved beyond all reasonable doubt. 29. Section 375 of the IPC defines rape as follows:- "Section 375. Rape.--Aman is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- First.-Against her will. Secondly.-Without her consent. 29. Section 375 of the IPC defines rape as follows:- "Section 375. Rape.--Aman is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- First.-Against her will. Secondly.-Without her consent. Thirdly.-With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly.-With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.-With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.-With or without her consent, when she is under sixteen years of age." And section 376 IPC prescribes for punishment of the offence. 30. Now turning to the evidence of the victim as we find she has admitted that on several occasion such incident have happened with her but all the time she chose to remain silent without complaining to any of the person. Her conduct itself reveals that she was a consenting party to the aforesaid affair. Her conduct is all through mysterious as she kept mum for all the time, being a major able bodied and educated woman (as she signed her deposition in English). Admittedly if the accused in not her own uncle i.e. not relative, then what prompted her to kept mum all the time. The house of the accused comprised his wife and children and there were so many persons in and around the locality. 31. In her cross-examination, she has admitted that she had a mobile phone and one boy namely Deep used to call her over telephone and she has given a statement vide Exhibit-A and Exhibit-A(1) is her signature, wherein she has admitted that she went with said Deep in a motor cycle at the time when accused Bakul Borah and his family members were in Chennai. Such an admission on the part of the victim about having affair with another person is highly indicative of the fact that she maintained relation with other person also. In such eventuality, non-matching of the DNA report of the accused/appellant that the child born to the victim assume much importance. 32. More importantly she even did not disclose the entire matter to her family and also to her mother that she has become pregnant. Such a silence is very dangerous which may have many fold implications. It may indicates that she has suppressed the genesis of the case or has falsely implicated the other person at the end of the episode. There appears no other evidence to show that the victim was under constant threat or otherwise on the part of the accused/appellant endangering her live and liberty, for disclosing such affairs. At least she was at liberty to disclose such matter to her close relative i.e. her mother or the inmates of the shelter home where she was kept in the last stage of such pregnancy or to the wife of the accused at any point of time. Such a conduct of the victim is not at all reasonable and is not at all inspiring to repose confidence. 33. In the circumstances, it is difficult to accept her evidence as gospel of truth. There is a proverb that the facts may lie but the circumstance never lie. In the instant case, all the circumstances are against the case of the victim. It is worthwhile to discuss the specific evidence of the Forensic Expert (PW. 6), who has concluded his remark on the basis of the DNA report that the DNA of the baby born to Juri Borah is matched with the DNA of mother Juri Borah but it does not match with Bakul Borah. As such the baby by name Sujit Borah is the son of Juri Borah but not the son of Bakul Borah. Such a finding has been rendered after scientific examination and there is nothing to disbelieve the evidence of PW. 6, which again belied the case of the victim. 34. It is also to be noted that the I.O. (PW. 7) has contradicted the statement of witnesses namely PW. 2-PW. Such a finding has been rendered after scientific examination and there is nothing to disbelieve the evidence of PW. 6, which again belied the case of the victim. 34. It is also to be noted that the I.O. (PW. 7) has contradicted the statement of witnesses namely PW. 2-PW. 4 that the victim girl disclosed before them that the accused is the father of the son born to her and that the accused Namita Baruah Borah threatened the victim of dire consequences if she disclose the name of the accused person. 35. The evidence of PW. 8, another I.O. is relevant to refer herein while he stated that after obtaining the order of the Court to go for DNA test, he served a notice upon the accused person u/s. 41 CrPC and as per the order of the Court that the DNA test is to be conducted in Tezpur Medical College instead of Kanaklata Civil Hospital, Tezpur, blood samples were collected. In view of specific evidence of the I.O., it cannot be held that the DNA report cannot be accepted for violation of Section 53A of the CrPC. The provision of Section 53-A of the CrPC, reads as follows: Section 53-A. Examination of person accused of rape by medical practitioner.- (1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose. (2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely- (i) the name and address of the accused and of the person by whom he was brought, (ii) the age of the accused, (iii) marks of injury, if any, on the person of the accused, (iv) the description of material taken from the person of the accused for DNA profiling, and (v) other material particulars in reasonable detail. (3) The report shall state precisely the reasons for each conclusion arrived at. (4) The exact time of commencement and completion of the examination shall also be noted in the report. (5) The registered medical practitioner shall, without delay, forward the report of the investigating officer, who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of Sub-Section (5) of that section. 36. The learned counsel for the appellant has pointed out that the accused/appellant was never arrested in connection with the case and he was on pre-arrest bail and in view of that matter, the provision of Section 53-A CrPC is not applicable to the present accused person, as he was not arrested in the present case and such a DNA test was conducted as per order of the learned trial Court. 37. In view of the matter, the observation of the learned trial Court that the DNA report bears no consequences, is an erroneous finding and hence not sustainable. Similarly the finding of the trial Court that the statement of the victim was supported by other witnesses i.e. PWs. 1-4, is also unfounded as the victim never disclosed those witnesses that she has been raped by the accused person forcefully against her consent, whereas her only reporting was that the father of the child is the accused. 38. The explicit reliance placed upon the testimony of the victim for non disclosure of the incident, as she was provided proper shelter by the accused is something unusual and not on proper reasoning in the given background of the case, more particularly when the accused is no way related to her. Had it been a case of minor, who has not attained the stage of majority or understanding as to the consequence of such affair, the case would have been on a different footing. Had it been a case of minor, who has not attained the stage of majority or understanding as to the consequence of such affair, the case would have been on a different footing. But in the given case, the victim being a major woman, has lost all her credibility as soon as she allowed the affair to prevail for a pretty long period i.e. for more than one year. 39. The Hon'ble Apex Court in a catena of decisions has stated that the prosecution has to prove its case beyond all reasonable doubt and the same criteria is applicable equally to the rape case. In the case of Vijayan Vs. State of Kerala, reported in (2008) 14 SCC 763 , it has been held that where the case rests upon the sole testimony of the prosecutrix, it is very dangerous to convict the accused specially when the prosecutrix could venture to wait for months together for filing the FIR for rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident, there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. If the prosecutrix has willingly submitted herself to sexual intercourse and waited for seven months for filing the FIR, it will be very hazardous to convict the accused on her sole oral testimony. 40. The learned counsel for the appellant relied upon the above observation of the Hon'ble Supreme Court as well as following decisions to submit that the delay in filing of such FIR about commission of rape and for the first time made a statement before the Court is not at all enough to sustain conviction in an offence of rape: (1) (2003) 4 SCC 46 , Uday Vs. State of Karnataka, (2) AIR 2011 SC 2564 KPT, Gowda Vs. State of Karnataka, (3) 2011 (2) GLT 947, Chittaranjan Roy Vs. State of Tripura, (4) 2011 (3) GLT 589, Anath Giri Vs. State of Tripura, (5) (2009) 11 SCC 106 , State of Rajasthan Vs. Rejendra Singh, (6) (2010) 7 SCC 263 , Selvi Vs. State of Karnataka, (7) (2011) 7 SCC 130 , Krishan Kumar Mallick Vs. State of Haryana, (8) (2008) 15 SCC 133 , Raju & Ors. Vs. State of Tripura, (4) 2011 (3) GLT 589, Anath Giri Vs. State of Tripura, (5) (2009) 11 SCC 106 , State of Rajasthan Vs. Rejendra Singh, (6) (2010) 7 SCC 263 , Selvi Vs. State of Karnataka, (7) (2011) 7 SCC 130 , Krishan Kumar Mallick Vs. State of Haryana, (8) (2008) 15 SCC 133 , Raju & Ors. Vs. State of Madhya Pradesh, (9) (2010) 12 SCC 115 , Abbas A Choudhury Vs. State of Assam and (10) Criminal Appeal No. 1330/2018, Reena Hazarika Vs. State of Assam. 41. In Raju & Ors. Vs. State of Madhya Pradesh reported in (2008) 15 SCC 133 , it has been held that Section 113-A and 113-B of the Evidence Act were inserted by way of an amendment, by which certain presumptions in case of abetment of suicide and dowry death have been raised against the accused. These two Sections raise a clear presumption in favour of the prosecution but not similar presumption with respect of rape is visualized as the presumption under Section 114_A is extremely restricted in its applicability. This clearly shows that in so far as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should without exception, to be taken as the gospel truth. Additionally, her statement can be at best be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. 42. The Hon'ble Supreme Court thus has held that ordinarily the prosecutrix should not be suspected but at the same time it cannot be universally and mechanically applied to every case of sexual assault The Court should borne in mind the broad principle that rape causes greatest humiliation to the victim but at the same time, false allegation of rape can equally cause humiliation and damage to the accused as well. 43. In Uday Vs. State of Karnataka, reported in (2003) 4 SCC 46 , it has been held that the burden of proof of such offence lies on the prosecution to prove each and every ingredient of the offence and absence of consent being one of them. 44. 43. In Uday Vs. State of Karnataka, reported in (2003) 4 SCC 46 , it has been held that the burden of proof of such offence lies on the prosecution to prove each and every ingredient of the offence and absence of consent being one of them. 44. In the present case, the scenario that has been depicted itself reveals that the victim has not boldly come up with the allegation that such conduct was against her consent and from the prevailing affair between the parties for a long long time, is itself indicative of the fact that she was a consenting party to the entire episodes. Such a sudden outburst of an occurrence in the given circumstances is hard to accept as a true and authentic version of the factum and for non-appreciation of all the above, the decision rendered by the learned trial Court is bad in law and liable to be interfered into. 45. So far as the contention raised by the Addl. P.P., Assam, Mr. D. Das that the FIR dated 29.08.2013, filed by the victim after filing of the FIR of the present case on 06.08.2013, the same cannot be dealt with as a utter irregularity or suppression on the part of the I.O., in view of the fact that the second FIR on the same cause of action against the same person cannot be registered, as has been held in the case of T.T. Antony Vs. State of Kerala & Ors., reported in (2001) 6 SCC 181 and the subsequent decision in Yanob Sheikh Vs. State of West Bengal. That apart, the victim has nowhere referred in her evidence about such filing of the FIR on her part independently and hence, that aspect have no consequence at all. 46. For the reasons and discussions as above, I find and hold that the charge u/s. 376 IPC, as against the accused person must fail, being not proved beyond all reasonable doubt Accordingly the accused person is acquitted from the charge and set him at liberty. However order as regards the compensation payable as per provision of Section 357(A) and the Assam Victim Compensation Scheme, 2012, shall remain the same. 47. Return the LCR, along with a copy of judgment immediately.