JUDGMENT Manish Choudhury, J. - Heard Mr. R. Mazumdar, learned counsel for the accused-appellant and Mr. B. B. Gogoi, learned Additional Public Prosecutor, State of Assam. It is found from the records that the notice to the respondent no. 2-informant had been duly served. But despite such service, there is no representation on behalf of the respondent no. 2-informant. 2. This appeal under Section 374(2), Code of Criminal Procedure, 1973 (CrPC, for short) is directed against the judgment and order dated 29.04.2016 passed by the learned Additional Sessions Judge No. IV, FTC, Kamrup (Metro), Guwahati in Sessions Case No. 331/2011. By the said judgment and order dated 29.04.2016, the accused-appellant has been found guilty of the offences under Section 376, Indian Penal Code (IPC, for short) and under Section 357, IPC. For commission of the offence under Section 376, IPC, the accusedappellant has been sentenced to undergo rigorous imprisonment for 7 (seven) years and to pay a fine of Rs.5,000/-, in default of payment of fine, to undergo simple imprisonment for another 1 (one) year. In connection with the offence under Section 357, IPC, he has been sentenced to undergo rigorous imprisonment for 1 (one) year and to pay a fine of Rs. 1,000/-, in default of payment of fine, to undergo simple imprisonment for 5 (five) years. The sentences are ordered to run concurrently. 3. The prosecution case, as unfolded from the First Information Report (FIR) lodged by the prosecutrix (P.W.1) on 10.07.2009 before the In-Charge, Amingaon Police Post, is that at about 2-30 a.m. in the night intervening 07.07.2009 and 08.07.2009, the accused, a resident of the same colony, forcefully entered into her house when she was sleeping. He holding an axe on her neck, gagged her mouth with a cloth and tied her hands and thereafter, committed rape on her. It was further stated that she did not inform about the incident to anybody but on 10.07.2009, she was compelled to lodge the FIR. 4. On receipt of the FIR (Ext.-1), the In-Charge, Amingaon Police Post registered a general diary entry being G.D. Entry No. 152 dated 10.07.2009 and forwarded the FIR to the Officer In-Charge, Jalukbari Police Station for registering a case and took up the investigation of the case. On receipt of the FIR, the Officer In-Charge, Jalukbari Police Station registered a case being Jalukbari Police Station Case No. 356/2009 under Section 376, IPC. On receipt of the FIR, the Officer In-Charge, Jalukbari Police Station registered a case being Jalukbari Police Station Case No. 356/2009 under Section 376, IPC. Correspondingly, G.R. Case No. 6130/2009 had been registered. 5. During the course of investigation, the I.O. (P.W.5) visited the place of occurrence and stated to have prepared a sketch map (Ext.-3) of the place of occurrence. The statements of the witnesses including the prosecutrix, were recorded under Section 161, CrPC and the prosecutrix was sent for medical examination to the Guwahati Medical College & Hospital (the GMCH, for short) on 10.07.2009. Thereafter, the statement of the prosecutrix was recorded under Section 164, CrPC before the Court of learned Special Judicial Magistrate, Assam, Guwahati on 14.07.2009. After collection of the medical examination report (Ext.-5), the I.O. submitted a charge sheet being Charge Sheet No. 237/2009 (Ext.-4) on 30.12.2009 under Section 173, CrPC finding a case established against the accused on the basis of the materials collected during the course of investigation, noting that the accused had been found to be in abscondance. On 07.07.2011, the accused surrendered before the Court of learned Magistrate. On submission of the charge sheet, the learned Judicial Magistrate, 1st Class, Kamrup, Guwahati finding the case to be triable by the Court of Session committed the case to the Court of Session by an order dated 03.09.2011 after compliance of the formalities under Section 207, CrPC. 6. On receipt of the case records of G.R. Case No. 6130/2009, Sessions Case No. 331/2011 has been registered. On appearance of the accused and after hearing the Public Prosecutor and the learned defence counsel and upon perusal of the materials on record, the learned Sessions Judge framed charges under Section 457, IPC and under Section 376, IPC against the accused on 21.01.2012. On charges being read over, interpreted and explained to the accused, he pleaded not guilty and claimed to be tried. 7. During the course of the trial, the prosecution side in order to bring home the charges against the accused had examined 6 (six) witnesses and exhibited 5 (five) nos. of documents, as indicated above. After closure of the prosecution evidence, the accused was examined under Section 313, CrPC and had informed the Court of adducing evidence in defence. Thereafter, the defence examined 1 (one) witness as D.W.1. of documents, as indicated above. After closure of the prosecution evidence, the accused was examined under Section 313, CrPC and had informed the Court of adducing evidence in defence. Thereafter, the defence examined 1 (one) witness as D.W.1. After examination and appraisal of the evidence on record, the learned trial Court has convicted and sentenced the accused, as indicated above. 8. Mr. Mazumdar, learned counsel appearing for the accused-appellant has submitted that there was no eye-witness to the incident alleged, except the prosecutrix. The medical evidence does not support the version of the prosecutrix. The appearance of P.W.2 at the place of occurrence immediately after the occurrence appears to be doubtful one in view of the version projected by the prosecutrix in the FIR. It is the testimony of the prosecutrix which has to be closely examined. He submits that the versions of the prosecutrix given at different points of time were at variance with each other and therefore, the testimony of the prosecutrix cannot be made the sole basis of conviction. 9. Mr. Gogoi, learned Additional Public Prosecutor has submitted that as the medical examination of the prosecutrix was done after few days, it is only natural that there could not be any evidence as regards injury but absence of any injury does not preclude a Court from considering the statement of the prosecutrix as the sole basis of conviction if the same is found to be trustworthy and reliable. In the instant case, he submits, the testimony of the prosecutrix is found to be reliable and therefore, the learned trial Court has convicted the accused accordingly. 10. I have given due consideration to the submissions advanced by the learned counsel for the parties and also perused the materials available in the case records of Sessions Case No. 331/2011, in original. 11. As has been indicated above, the prosecution had examined 6 (six) prosecution witnesses. The prosecutrix was examined as P.W.1 and P.W.2 was one Smti. Chaya Rani Chettri. The other witnesses are :- P.W.3 :- Smti. Parvati Das; P.W.4 :- Sri Lalu Dey; P.W.5 :- Sri Tarun Talukdar, Assistant Sub-Inspector of Police, I.O.; and P.W.6 :- Dr. R. Chaliha, Head of the Department, Department of Forensic Medicines, GMCH. 12. Before looking into the testimony of the prosecutrix, the testimonies of other witnesses are looked into. P.W.3 deposed that the the prosecutrix was the wife of her brother-in-law. R. Chaliha, Head of the Department, Department of Forensic Medicines, GMCH. 12. Before looking into the testimony of the prosecutrix, the testimonies of other witnesses are looked into. P.W.3 deposed that the the prosecutrix was the wife of her brother-in-law. She used to know both the accused and the prosecutrix. She was informed by her mother-inlaw after 5 (five) days of the incident to the effect that the prosecutrix had instituted a case against the accused but she was not aware why such case was lodged. She claimed ignorance about anything in respect of the case. P.W.4 is a co-villager who knew both the prosecutrix and the accused. He stated that he heard about the incident only on the next day but he was not examined by police. He did not have any relation with the prosecutrix and he was not told about the incident by her. Thus, the testimonies of these 2 (two) witnesses - P.W.3 and P.W.4 - are of no assistance to the case of the prosecution. 13. P.W.6 had deposed that the medical examination of the prosecutrix was carried out at the GMCH on 10.07.2009 in connection with Amingaon Police Post G.D. Entry No. 152 dated 10.07.2009. On examination, he recorded his findings as under :- wxyz "Genital examination :- (a) Genital organs :- Health, (b) Vulva :- Labia minora exposed on gentle abduction of thighs, (c) Hymen :- Carunculae myrtiformes, (d) Vagina :- Healthy, roomy with decreased rugosity, (e) Cervix :- Healthy, as closed, (f) Uterus :- Healthy, not palpable clinically, (g) Evidence of venereal deceases :- Not detected, (h) Evidence of injury on her body or private parts :- 1) A linear abrasion of size 6 cm, reddish brown in colour present in the front of neck directed obliquely upward towards the chin, (2) A linear abrasion of size 9 cm, reddish brown in colour present in the front of neck situated transversely 3 cm below thyroid cartilage and 5 cm above suprasternal notch, (i) Vaginal smears taken on glass slides for laboratory investigation :- One vaginal smear taken on glass slide from posterior fornix, Wearing clothes :- (a) Evidence of struggle :- Not detected. (b) Evidence of stain :- Not detected. Mental condition :- No abnormality detected at the time of examination, (a) Co-operation and behavior :- co-operative, good, (b) Intelligence and memory :- Fair. (b) Evidence of stain :- Not detected. Mental condition :- No abnormality detected at the time of examination, (a) Co-operation and behavior :- co-operative, good, (b) Intelligence and memory :- Fair. Report of radiological investigation :- (1) X-ray wrist joint, elbow joint, shoulder joint :- Epiphyseal union of bones are completed around the joints. (2) X-ray pelvic bones :- Epiphyseal union of bones for illiac crest and ischical tuberosity are almost completed. [N.B.- However in our opinion, sacral vertebraes are united.] Result of Laboratory investigation :- Vaginal smear does not show spermatozoa or gonococci." P.W. 6 had deposed about opinion reached after such medical examination. On the basis of the physical examination and radiological and laboratory investigation, it was opined that (1) there was no evidence of recent sexual intercourse on the person of the prosecutrix; (2) her age was above 25 years; (3) there was no evidence of injury on her body except that was described above; and (4) there was no evidence of injury found in her private parts. The medical examination report had been exhibited as Ext.-5. In his cross-examination, P.W.6 deposed that vaginal organs were healthy at the time of examination and injuries were not related to any sexual act. Injuries had been caused by blunt force impact and no evidence of sexual intercourse was detected at the time of examination. zyxw 14. Thus, from the above testimony of the doctor and the medical examination report (Ext.-5), it has emerged that there is no medical evidence to support the version of the prosecutrix as regards commission of rape. The other injuries were not by any sharp weapons. 15. P.W.5 i.e. the I.O. had stated that it was on 10.07.2009, the prosecutrix instituted the written FIR alleging that the accused had committed rape on her on 07.07.2009 at about 12- 30 a.m. Then on the basis of the said FIR, he along with the prosecutrix visited the place of occurrence and examined the witnesses found available there. He thereafter, prepared the sketch map (Ext.-3) and sent the prosecutrix for medical examination. The accused was not found despite search. In his cross-examination, the I.O. had stated that he had not found anything broken in the house of the prosecutrix. The prosecutix did not tell him as to how the accused had entered into her house. The prosecutrix was asked about cloth, axe, gamosa, etc. The accused was not found despite search. In his cross-examination, the I.O. had stated that he had not found anything broken in the house of the prosecutrix. The prosecutix did not tell him as to how the accused had entered into her house. The prosecutrix was asked about cloth, axe, gamosa, etc. but she did not hand over anything to him. 16. It is in the aforesaid premises, the testimonies of the prosecutrix and P.W.-2 are to be examined and analyzed. In her testimony as P.W.1., the prosecutrix had deposed that on the date of the incident when she was sleeping along with her 2 (two) sons, the accused entered into her house. He thereafter, took out a knife from below her bed and held the same on her neck. Then she got awake and made a noise. The accused then gagged her mouth with a gamosa. She found the accused in an inebriated condition and he disclosed his name. Thereafter, the accused tied her with a rope from behind and committed rape on her. After committing rape he left the place. She thereafter, somehow untying the rope, made noise and then P.W.2 reached the place. On enquiry by P.W.2, the prosecutrix stated to have told her about the incident. She stated to have lodged the FIR in the Amingaon Police Post on the next date. She further stated that the house was made of bamboo and it was for that reason, the accused was able to enter inside the house. She exhibited and proved the FIR (Ext.-1) and her statement recorded under Section 164, CrPC (Ext.-2). In her cross-examination, she stated that the FIR was lodged after 3 (three) days. She further stated that though the accused belonged to their village, she did not know about his occupation. Though at the relevant point of time there was no light inside her house but there was some light coming in from the outside lights nearby. She further stated that the accused tied her hands with the rope after taking it out from below her bed. She denied the suggestions that there was no rape on her and that because of enmity with the accused, she had lodged a false case. 17. She further stated that the accused tied her hands with the rope after taking it out from below her bed. She denied the suggestions that there was no rape on her and that because of enmity with the accused, she had lodged a false case. 17. The above testimony of the above two witnesses if read conjointly with the FIR (Ext.1) and the statement of the prosecutrix recorded under Section 164, CrPC (Ext.-2), then such reading demonstrates several inconsistencies and embellishments. Her statements given at various points of time are found to be at variance with each other. In the FIR, the prosecutrix had stated that the accused had held an axe on her neck but in her statement recorded under Section 164, CrPC, she stated that the accused had held a dao (machete) against her neck. But in her testimony made before the Court, she stated the weapon as a knife. Axe, dao and knife are three different kinds of weapons/instruments of different shapes and sizes. The prosecutrix is a major lady and as per Ext.-2, she declared her age to be 27 years and as per the medical examination report (Ext.-5), she was found to be aged above 25 years. It, thus, cannot be conceived of that a lady of more than 25 years cannot distinguish between an axe and a dao and for that matter, between a dao and a knife and between an axe and a knife. In her FIR, the prosecutrix stated that the incident had happened in the night intervening 07.07.2009 and 08.07.2009 but she did not disclose about the same to anybody till the institution of the FIR on 10.07.2009. While deposing as P.W.-1, she stated that when she made noise after getting herself freed from the tied rope then P.W.-2 came to the place and asked her about the incident and she disclosed the incident to P.W.-2. P.W.-2 deposed that she came out of the house during the night after hearing noise from the house of the prosecutrix and the prosecutrix immediately told her about the accused committing rape on her. This fact of disclosure of the incident to P.W.-2 by the prosecutrix immediately after the occurrence runs contrary to the version reflected in the FIR wherefrom it has emerged that for a period of three days the prosecutrix did not disclose about the incident to anybody. This fact of disclosure of the incident to P.W.-2 by the prosecutrix immediately after the occurrence runs contrary to the version reflected in the FIR wherefrom it has emerged that for a period of three days the prosecutrix did not disclose about the incident to anybody. In her statement recorded under Section 164, CrPC, the prosecutrix stated that she was able to identify the accused in the light of the electric lamp of her house. But in her testimony before the Court, she projected a different version where she had stated that there was no light inside her house at the time of the incident and she was able to identify him only from the light coming in from outside. It has emerged from the testimony that though she and the accused were co-villagers, there were no visiting terms between them. It is, thus, difficult to believe that the accused without having never visited the house of the prosecutrix at any earlier point of time, could be able to locate the weapon, be it an axe or a dao or a knife, and the rope kept below the bed of the prosecutrix after entering into her house in the middle of the night. On perusal of Ext-2 which was recorded on 14.07.2009 i.e. after four days of lodging of the FIR on 10.07.2009, it is found that she did not make any noise out of the fear of being assaulted. P.W.-2 who had been able to know about the incident of rape only from the prosecutrix, did not see the accused at the place of occurrence. 18. It is settled that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and is found to be absolutely trustworthy and unblemished. A prosecutrix complaining about commission of rape is not an accomplice. Absence of injuries on the private parts of the victim does not falsify case of rape in all cases, nor can it be construed as presence of consent. The opinion of a doctor that there was no evidence of any sexual intercourse or rape is also not sufficient to disbelieve the victim. The injury of abrasion found present in the front of the neck is not sufficient to establish rape in the present case. The opinion of a doctor that there was no evidence of any sexual intercourse or rape is also not sufficient to disbelieve the victim. The injury of abrasion found present in the front of the neck is not sufficient to establish rape in the present case. But at the same time, it is to be borne in mind that false charge of rape is also not uncommon. In the present case, the medical evidence does not corroborate the allegation of commission of rape. As a result, it is the sole testimony of the prosecutrix which has been left to be tested as to whether the same can be the solitary basis for conviction of rape. The evidence of the prosecutrix when read as a whole, as has been discussed above, is found to be full of discrepancies and imbalanced. The statements of the prosecutrix given at various points of time in the forms of the FIR (Ext.-1) lodged by herself, the statement recorded under Section 164, CrPC (Ext.-2) and her testimony before the Court as P.W.-1 are found to be at variance with each other in material particulars and such variances in the evidence and the other circumstances make it difficult to believe about the occurrence of the incident in the night intervening 07.07.2009 and 08.07.2009 inside the house of the prosecutrix, in the manner as has been sought to be projected by the prosecutrix. The I.O., P.W.-6 stated that he was not handed over any clothes, weapons, etc. by the prosecutrix and he did not witness anything broken in the house of the prosecutrix. Thus, after having gone through and considering the statements of the prosecutrix given at different points of time, along with other evidence, contradictions are found in many aspects which are very material and of relevance. The medical evidence about an offence of rape, stated to have taken place as per the version of the prosecutrix, belies her version. Further, there was a delay of three days in lodging of the FIR and there is no specific explanation as regards the delay of said three days, except mentioning that she was compelled to lodge the FIR after three days. Nothing has been disclosed as to why she was not able to lodge the FIR for three days and what compelled her to lodge the FIR after three days. Nothing has been disclosed as to why she was not able to lodge the FIR for three days and what compelled her to lodge the FIR after three days. As per her testimony, the accused had left the place after committing rape leaving her tied from behind with a rope. Non-recovery of the weapon, rope, gamosa, etc. from the place of occurrence and not finding any evidence as regards any forceful entry into the house further throw doubt about the veracity of the allegations of rape and house-breaking by night. On scrutiny, it is found that a charge was framed for the offence under Section 457, IPC but the conviction has been recorded for an offence under Section 257, IPC. Be that as it may, the prosecution evidence has been found to have fallen short in respect of either of the two offences. 19. Therefore, in the facts and circumstances of the case, the conviction of the accused on the basis of the sole testimony of the prosecutrix is not found sustainable for the reasons discussed above. Thus, this Court is of the considered opinion that there is no scope to sustain the conviction of the accused-appellant for commission of offences either under Section 376, IPC or under Section 457, IPC or under Section 357, IPC and as a result, the accused-appellant is entitled to the benefit of doubt as the prosecution has not been able to prove its case beyond all reasonable doubts. Resultantly, for the reasons mentioned above, the appeal stands allowed. The impugned judgment and order conviction and sentence passed by the learned trial Court is hereby quashed and set aside. The accused-appellant is acquitted of the charges leveled against him. The accused-appellant is to be set at liberty forthwith, if he is not required in connection with any other case. wxyz The records along with a copy of this judgment, are to be sent back forthwith. zyxw