Delay in lodging FIR and the testimony of a hostile witness can weaken the prosecution's case and lead to the acquittal of the accused.

MURARI PRASAD SHRIVASTAVA, J.

1. THE present appeal is directed against the judgment and order of conviction and sentence dated 25.05.2010 passed by the learned Additional Sessions Judge, Fast Track 4th Court, Jalpaiguri, in Sessions Case No. 472 of 2008 relating to Sessions Trial No. 14 of 2009, under Section 354 I.P.C. whereby the appellant was sentenced to suffer Rigorous Imprisonment for 2 years and to pay fine of Rs.2,000/- (Two thousands) in default to suffer Simple Imprisonment for 3 months.

2. THE prosecution case, in brief, is that on 01.06.2008 at about 10 a.m. when the de facto complainant was working in the jute field of the accused, then the latter who also came there for working in the field, suddenly forced her on the ground and opened her sari as also touched her private parts with an intent to commit rape on her. The de facto complainant raised alarm whereupon one Swapna Roy residing nearby came and the accused fled away. On the basis of the written complaint lodged by the de facto complainant Kotwali P.S. Case No. 1117 of 2008 was started and investigated. After completion of the investigation, charge sheet under Section 376/511 I.P.C was filed against the accused. The charge was duly framed against the accused who pleaded not guilty and claimed to be tried.

3. IN all 7 (Seven) witnesses were examined on behalf of the prosecution. The F.I.R as well as the sketch map were admitted in evidence and marked as Exhibits. Though the defence did not adduce any evidence, its case is that the elder brother of the accused had lodged written complaint against the present de facto complainant, who used to work in their house as a maid servant, in respect of theft of Rs. 7,000/- committed by her on 14.06.2008. The said case was registered as Kotwali P.S. Case No. 1113 of 2008 dated 15.06.2008 under Section 380 of the Indian Penal Code and the present case which was lodged on 16.06.2008 is a counter blast to the said case. The learned Additional Sessions Judge upon consideration of evidence and materials on record found that the accused was not guilty of the offence punishable under Section 376 / 511 I.P.C, but held that the prosecution had been able to establish the charge punishable under Section 354 of the I.P.C and accordingly found the accused guilty of the offence punishable under Section 354 of the I.P.C and convicted and sentenced him to suffer Rigorous Imprisonment for 2 years and to pay a fine of Rs. 2,000/- in default to suffer Simple Imprisonment for 3 months.

4. THE appellant has preferred the present appeal challenging the sustainability of the judgment mainly on the following grounds: -

(a) That the learned Court failed to appreciate the evidence in its proper and correct perspective ;

(b) That though the alleged incident took place on 01.06.2008. F.I.R was lodged on 16.06.2008 and this inordinate delay has not at all been explained by the prosecution;

(c) That the learned Court did not at all consider, that the present case has been falsely filed by the de facto complainant in order to wriggle herself out of the previous case filed by the brother of the appellant against her in respect of theft committed by her from their house;

(d) That the judgment is otherwise bad in law, and is not sustainable; P.W.1 is the de facto complainant while P.W.2 is her father-in-law and P.W.6 is her husband. P.W.3 Swapna Roy resides near the place of occurrence and has been declared hostile by the prosecution. P.W.4 resides near the house of P.W.2 while P.W.5 is the scribe who wrote the F.I.R as per dictation of P.W.1 and P.W.7 is the Investigating Officer.

5. MR. Pravas Bhattacharya, learned Advocate appearing for the appellant submits that though the alleged occurrence is dated 01.06.2008, the F.I.R was lodged on 16.06.2008 and there is no explanation whatsoever as to the reason for such inordinate delay in lodging the F.I.R. He further submits that the time of the alleged incident has not been mentioned in the F.I.R. th