JUDGMENT : NAVNEET KUMAR, J. This appeal is directed against the Judgment of conviction dated 22 nd February 2006 and order of sentence dated 24 th February 2006, passed by learned Sessions Judge, Seraikella-Kharsawan in S.T. No.10 of 2003, arising out of Chandil P.S. Case No.54 of 2002, corresponding to G.R. Case No.317 of 2002, whereby and whereunder the appellant has been acquitted from charge under section 313 of IPC while convicted for the offence punishable under Section 376 of IPC and sentenced to undergo R.I. for a period of eight years. 2. The prosecution story as unfolded in the FIR by the prosecutrix/victim (PW-6) has stated in her statement on 17.05.2002 that about eight days ago, she was alone in her house and at that time, the accused came inside her house and committed rape upon her after alluring to perform marriage with her. After the accused left away, the prosecutrix disclosed this fact to her parents, who went to the house of the accused asking him to marry the prosecutrix, but he refused to do so. 3. On the basis of the aforesaid statement, a formal FIR was instituted vide Chandil P.S. Case No.54 of 2002, which was registered under Section 376 of IPC and after completion of investigation, the charge-sheet was submitted under sections 376 and 313 of the IPC and thereafter cognizance was taken and the case was committed to the Court of Sessions and after commitment, the learned Sessions Judge, Seraikella framed the charges on 06 th May 2003 under sections 376 and 313 of the Indian Penal Code, where the accused appellant pleaded not guilty and claimed to be tried and the learned trial court after conducting the full- fledged trial, passed the impugned judgment of conviction and order of sentence, which is under challenge in this appeal. 4. Heard Smt. Jasvinder Mazumdar, learned defence counsel appearing on behalf of appellant and learned APP Sanjay Kumar Srivastava appearing on behalf of the State. Arguments advanced on behalf of the appellants: 5. 4. Heard Smt. Jasvinder Mazumdar, learned defence counsel appearing on behalf of appellant and learned APP Sanjay Kumar Srivastava appearing on behalf of the State. Arguments advanced on behalf of the appellants: 5. Learned defence counsel appearing on behalf of the appellant submitted that the learned trial court did not apply its judicial mind in appreciation of the deposition of the victim/prosecutrix-PW-6 in the right perspective and her entire submission becomes doubtful when the appellant having been charged under Section 313 and 376 of IPC and acquitted under Section 313 of IPC, but convicted under section 376 of the Indian Penal Code, ignoring a drastic improvement in the version of the victim from her earlier statement in the course of the trial particularly from her version in the FIR. 6. It has been pointed out that there was no whisper of any kind of forceful abortion within the meaning of section 313 of the IPC in the FIR but later on, during her deposition, she stated a different story stating that about three months ago, the appellant had committed rape with her in the jungle (forest) and thereafter he had inserted an wooden stick in her private part, but the learned trial court disbelieved her second part of the version and acquitted the appellant for the offence punishable under section 313 of IPC for committing the offence of causing miscarriage without the consent of PW-6 ignoring the fact that her entire statement gets vitiated because of the false story improved by her in her testimony during the course of the trial. 7. Further, it has also been argued on behalf of the appellant that PW-2 Mohari Mahato, PW-3 Bharat Mahato, PW-4 Dinesh Mahato, PW-5 Chakradhar Mahato, PW-7 Motilal Mahato and PW-8 Sanjit Mahato are the co-villagers of the prosecutrix and they come to know about the incident by PW-1 Nitai Mahato, who is the father of the prosecutrix/victim-PW-6. 8. 7. Further, it has also been argued on behalf of the appellant that PW-2 Mohari Mahato, PW-3 Bharat Mahato, PW-4 Dinesh Mahato, PW-5 Chakradhar Mahato, PW-7 Motilal Mahato and PW-8 Sanjit Mahato are the co-villagers of the prosecutrix and they come to know about the incident by PW-1 Nitai Mahato, who is the father of the prosecutrix/victim-PW-6. 8. Further, it has also been pointed out that the I.O. in this case has not been examined and therefore, this appellant has been debarred from his valuable right to confront with the earlier statement of the victim recorded by the I.O. during the course of the investigation in order to ascertain the truthfulness and veracity of her deposition recorded during the course of the trial and thus, the learned trial court has hopelessly failed to appreciate that non-examination of the I.O. in the present case is fatal to the case of the prosecution when the prosecutrix/victim has improved her statement substantially and deviated from her earlier statement accusing the appellant that three months ago, the appellant had committed rape with her and inserted a wooden stick in the private part, but he has been acquitted for the offence punishable under section 313 of the IPC. 9. Further, it has also been pointed out that the doctor Manorma Siddesh, who has been examined as PW-9 is also not appearing to be very truthful witness in medical examination of victim because she was only supposed to examine the victim medically and not to give any opinion with respect to the kind of offence committed by the appellant, whereas PW-9 the doctor has stated in her statement, which is exhibit-2 that a criminal abortion has been committed by this appellant while in the FIR, there was no whisper of abortion. 10. Further, it has also been pointed out that the age of the victim was 18 years (as stated by her in medical report) and therefore, based upon the aforesaid submission, it is submitted by the learned counsel appearing on behalf of the appellant that the appellant deserves to be acquitted for the offence punishable under section 376 of IPC also. Arguments advanced on behalf of the State: 11. Arguments advanced on behalf of the State: 11. On the other hand, the learned APP appearing on behalf of the State opposed the contentions raised on behalf of the appellant and submitted that the learned trial court has rightly relied upon the version of the victim, PW-6 and also on the version of the doctor PW-9 and after appreciating of the legal evidences adduced on behalf of the prosecution convicted the appellant for the offence punishable under section 376 of the IPC. 12. Further, it has also been submitted that the FIR is not the encyclopaedia and therefore her improvement about her statement, particularly with respect to the fact that three months ago, also the appellant had committed rape with her in jungle cannot be discarded and cannot be disbelieved in view of the fact that in the same process, the another incident was also alleged to have been committed by the appellant, i.e. insertion of the wooden stick in her private part for the forceful miscarriage, but the learned APP did not controvert the fact that the I.O. in this case has not been examined and the appellant has been acquitted for the charges levelled under Section 313 of IPC. It is submitted by learned APP that there is no legal point to interfere in the impugned judgment of conviction and order of sentence and this appeal is fit to be dismissed. Appraisal & Findings 13. Having heard the parties, perused the record of this case including the impugned judgment and depositions of the witnesses and other material available therein. 14. In order to substantiate the charges levelled against the appellant. altogether, ten witnesses have been examined on behalf of the persecution, who are as under. PW-1 Nitai Mahato, PW-2 Mohari Mahato, PW-3 Bharat Mahato, PW-4 Dinesh Mahato, PW-5 Chakradhar Mahato, PW-6 victim herself PW-7 Motilal Mahato PW-8 Sanjit Mahato PW-9 Dr. Manorma Sindesh PW-10 Rabindra Modak In order to prove its case, the prosecution has also adduced following exhibits- I. Ext.-1 signature of Nimai Mahto on written report; II. Ext.-1/1 Signature of Victim on written report; III. Ext.-2 Medical Report; IV. Ext.-3 Fardbeyan; V. Ext.-4 Formal F.I.R.And material Exhibits as two X-ray plates have also been exhibited as material Exts. I to I/1 by the prosecution. 15. At the outset, the version of most important witness PW-6, who is the prosecutrix/victim in this case is taken into account. Ext.-1/1 Signature of Victim on written report; III. Ext.-2 Medical Report; IV. Ext.-3 Fardbeyan; V. Ext.-4 Formal F.I.R.And material Exhibits as two X-ray plates have also been exhibited as material Exts. I to I/1 by the prosecution. 15. At the outset, the version of most important witness PW-6, who is the prosecutrix/victim in this case is taken into account. In the examination-in-chief, she has stated that on the date of occurrence, that is prior to the eight days from the date of FIR dated 17.05.2002, the appellant had come to her house and established physical relationship with her forcefully and promised her to marry. She further stated in her examination-in-chief during course of trial in para-3 that about three months ago also in the forest, this appellant had committed rape upon her and thereafter she had become pregnant and then again, he had committed rape with her and inserted a wooden stick in her private part and said that after the abortion, he would marry with her. She further stated that when her father came after eight days, then she had disclosed the entire incident and thereupon her father along with another person told the appellant to get married and when he did not marry with her, then the case was instituted. From the version of the prosecutrix/victim, it is crystal clear that the appellant and the victim had established the physical relationship under the promise of marriage and when the marriage could not be solemnized, then the case was instituted. 16. Further from the impugned judgment, it appears that the learned trial court by disbelieving another part of the version of the prosecutrix which was not substantiated and proved, acquitted the appellant from the charge under section 313 of IPC. 17. In this view of the matter, it is found from her version that in the FIR, she did not utter a single word about her miscarriage against her will, but there is a drastic improvement in her version in the testimony at the time of the trial and further, she had stated in para 5 that she did not disclose to police officer about the forceful miscarriage by inserting the wooden stick in her private part, under which the appellant has been acquitted for the offence punishable under section313 IPC. 18. 18. In view of the aforesaid facts emanating from the version of P.W.-6, it becomes very doubtful about the truthfulness and veracity of her version and therefore it is not safe to rely upon the version in order to convict the appellant even under section 376 of IPC. 19. Further it is also found that the I.O. in this case has not been examined and therefore it has become fatal for the case of the prosecution, when she had been relying upon her subsequent statement, when she has stated in the cross- examination in para-5 that she did not tell about forceful miscarriage before police and therefore this appellant being an accused has been debarred to confront about her earlier statement in order to ascertain the truthfulness of her version and in view of the aforesaid fact, it appears that the learned trial court did not apply its judicial mind in order to constitute the offence even under section 376 of the Indian Penal Code when the appellant has been acquitted for the offence punishable under section 313 of the IPC. 20. Further, it is also found from the version of the Doctor, PW-9 that she had ascertained the age of the victim as 18 years and he had opined in a very absurd manner about the criminal abortion, when her opinion should have been confined only medically and not legally. 21. In view of the aforesaid findings as discussed in the above paragraphs, from the version of PW-1, this Court does not find to look into the versions of other witnesses examined on behalf of the prosecution, as it is well founded from the version of prosecutrix/victim PW-6 that her statement is not truthful in order to convict the appellant under section 376 of the IPC as discussed elaborately in the foregoing paragraphs. 22. Major contradictions in her statement do not inspire confidence. At one point of time PW-6 stated that about 8 days ago, she was raped by appellant under the pretext of marriage, whereas in her deposition before the court, there is complete departure from her earlier statement. PW-6 stated in her examination- in-chief that the appellant had committed rape with her about three months ago under the pretext of marriage. But no FIR was instituted nor any information either to the police or to the family member was given. PW-6 stated in her examination- in-chief that the appellant had committed rape with her about three months ago under the pretext of marriage. But no FIR was instituted nor any information either to the police or to the family member was given. She further stated in her examination-in-chief that she had become pregnant due to rape and when he committed second time rape, then he inserted wood in the urinary track in order to marry her after abortion. There was delay in lodging FIR as FIR was instituted on 17.05.2002 while victim has stated in her beyan that prior to eight days ago from registering her FIR, the accused / appellant has committed rape upon her. 23. In the result, the impugned judgment of conviction dated 22.02.2006 and order of sentence dated 24.02.2006 passed by the learned Sessions Judge, Serikella-Kharsawan in S.T. No. 10 of 2003 for the offence punishable under section 376 of the Indian penal code against the appellant is found to be bad in law and fit to be set aside. The learned trial court did not appreciate the evidences in the right perspective. 24. Accordingly, the impugned judgment of conviction dated 22 nd February 2006 and order of sentence dated 24 th February 2006, passed by learned Sessions Judge, Seraikella-Kharsawan at Seraikella in S.T. No.10 of 2003, arising out of Chandil P.S. Case No.54 of 2002, corresponding to G.R. Case No.317 of 2002 is hereby set-aside. 25. The appellant is acquitted from the charges levelled against him. 26. Since the appellant is on bail, he is discharged from the liability of the bail bonds. 27. Let the Trial Court Record be sent back forthwith along with a copy of this Judgment forthwith.