The unreliability of the victim's testimony, lack of medical support for the prosecution, and the inordinate delay in lodging the FIR raised serious doubt on the veracity of the prosecution case, leading to the accused being given the benefit of doubt.

JUDGMENT

Mir Alfaz Ali, J. - This appeal is directed against the judgment and order dated 01.11.2019 passed by the learned Additional District & Sessions Judge, FTC, Nagaon, in Sessions (T2) Case No. 129/2009. By the said judgment, the accused appellant was convicted under Section 366/376 (1)/323 IPC and sentenced to rigorous imprisonment for seven years and fine of Rs. 2,000/- with default stipulation under Section 366 IPC, rigorous imprisonment for 10 years and fine of Rs. 5,000/- with default stipulation under Section 376 (1) IPC and rigorous imprisonment for 6 months under Section 323 IPC.

2. As per the prosecution case, on 23.10.2008, at about 10 PM at night, the accused appellant accompanied by three others came to the house of the victim and forcibly kidnapped the victim, who was aged about 17 years at the time of occurrence. The appellant and his companion ravished the victim repeatedly and they also assaulted the victim causing multiple injuries. Thereafter on 26.10.2008, at about 4 AM in the morning, they have left the victim at Bharaguri, where after she came home and the FIR (Ext.1) was lodged by the father of the victim, on the basis of which, police registered a case being Samaguri P.S. Case No. 191/2008 under Section 366(A)/376(g)/325 IPC. During investigation, statement of the victim was recorded by Magistrate under Section 164 CrPC. She was also subjected to medical examination and on completion of investigation charge sheet was laid against the present appellant.

3. In course of trial, charges were framed against the accused appellant under Section 366/376/323 IPC, to which he pleaded not guilty. Nine witnesses were examined by the prosecution to establish the charges and on appreciation of evidence, learned Trial Court convicted the present appellant and awarded sentence as indicated above.

4. Aggrieved by conviction and sentence, the accused/appellant, has preferred the instant appeal.

5. Learned counsel Mr. B.C. Das appearing for the appellant and learned Addl. P.P., Mr. B.B. Gogoi for the State were heard.

6. Learned counsel for the appellant, Mr. Das submitted that the entire prosecution case was based on the solitary testimony of the victim, which was not at all reliable, in view of the material contradiction in her evidence as well as the other attending facts and circumstances. It was also submitted by Mr. Das that the FIR was lodged after 7 days without any proper explanation. Further contention of the learned counsel was that the prosecution sought to suppress the real facts and lodged the FIR by making a concocted allegation and as such, the conviction and sentence of the appellant warrants interference.

7. Learned Addl. P.P. however, submitted that the testimony of the victim cannot be disbelieved and the conviction can be based on the sole testimony of the victim in an offence of sexual assault.

8. I have perused the evidence brought on record and considered the submissions made by the learned counsel. On assessment of the prosecution evidence, it is found that the prosecution case is basically banking on the testimony of the prosecutrix as submitted by the learned counsel for the appellant, inasmuch as, the other witnesses, who were examined did not have any personal knowledge and they were more or less reported and post occurrence witnesses.

9. The informant, PW-2 is the father of the victim. He stated to have lodged the FIR on the basis of the narration of the occurrence by the victim. According to him, the accused visited their house in the morning on the date of the occurrence and at night when all the members of the family were in sleep, the victim was missing from the house. After three days, she returned home with multiple injuries on her body and thereafter she was initially taken to Samaguri PHC for treatment, wherefrom she was shifted to Nagaon Civil Hospital and on the next day the FIR was lodged. He also stated that the victim told him that four persons including the accused appellant committ