Ram Niwas vs State
2014 Latest Caselaw 3856 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Reserved on : 5th August, 2014
%                                          Pronounced on :22nd August, 2014

+        CRL.A.636/1999

         RAM NIWAS                                          ..... Appellant
                               Through :   Mr.Dheeraj Yadav, Adv.

                                       versus

         STATE                                              ..... Respondent
                               Through :   Mr.Neeraj Kumar Singh, APP for the
                                           State.

AND

+        CRL.A.255/2000

         PAPPU                                              ..... Appellant
                               Through :   Mr.Ajay Garg, Mr.Ashwani Sood and
                                           Mr.Ganesh Tiwari, Advs.

                                       versus

         STATE                                              ..... Respondent
                               Through :   Mr.Neeraj Kumar Singh, APP for the
                                           State.


         CORAM:
         HON'BLE MS. JUSTICE PRATIBHA RANI

PRATIBHA RANI, J.

1. By filing these two Criminal Appeals bearing No.636/1999 and 255/2000, Appellants Ram Niwas and Pappu are impugning the judgment

and order on sentence dated 25.08.1999 & 28.08.1999 respectively passed by learned Addl. Session Judge in Session Case No.18/1997 in FIR No.240/1997 under Section 376/506/34 IPC, PS Gokul Puri.

2. In Criminal Appeal No.255/2000, Appellant Pappu is challenging his conviction for committing the offences punishable under Section 376 IPC and 506/34 IPC and sentence awarded to him under Section 376 IPC to undergo RI for seven years with fine of Rs.300/- and further under Section 506/34 IPC to undergo RI for six months.

3. In Criminal Appeal No.636/1999, Appellant Ram Niwas is challenging his conviction for committing the offences punishable under Section 376/120-B IPC and 506/34 IPC and sentence awarded to him under Section 376/120-B IPC to undergo RI for four years with fine of Rs.150/- and further under Section 506/34 IPC to undergo RI for six months.

4. The prosecution case begins with DD No.13 dated 24.03.1997 recorded at 4.55 pm. As per this DD, ASI Rohtas from PCR informed the Police Post that in Prakash Vihar, Karawal Nagar, B-Block adjoining the wall of Tube Well of Mani Ram, rape has been committed with a woman and police be sent. After recording the DD entry, SI Rajesh Sinha was informed through wireless who left for the spot.

5. After making endorsement on the statement Ex.PW1/A which is to the effect that after receiving DD No.13, he reached the spot, recorded the statement of Prosecutrix 'M' (name of the Prosecutrix withheld to conceal her identity) that he alongwith Prosecutrix 'M', her husband Roshan Lal and Accused Pappu was leaving for GTB Hospital for their medical examination, SI Rajesh Sinha sent the rukka through Ct.Surender for registration of the case.

6. Case FIR No240/97 under Section 376/506/120-B IPC was registered at PS Gokul Puri on 24.03.1997 on the basis of statement Ex.PW6/A made by Smt. 'M'. In the complaint, she stated that she has been residing alongwith her husband and three children. It was day of Holi festival and her husband had gone to meet his sister residing in Karawal Nagar whereas her children had gone to play in the neighbourhood at about 3.00 pm when she was alone at home. Both the Appellants who had been working in their garments stitching factory and had left the job 4-5 months prior to that day, came home and inquired about her husband and children. She informed them that her husband was away to Karawal Nagar and children were away to play in the neighbourhood. She asked them to sit and offered them tea.

7. After taking tea, both of them started going out and at that stage, Appellant Ram Niwas went out but Appellant Pappu bolted the door from inside. She questioned his act but she was slapped by Appellant Pappu. He (Pappu) also pushed her on the bed and threatened to kill her with a scissor lying there. She further stated that Pappu was in inebriated condition at that time. Pappu pulled her blouse, broken the hooks and thereafter forcibly committed rape on her. Thereafter he again threatened to kill her husband and children, if she would disclose the incident to anyone.

8. After committing the rape, Pappu opened the door and she saw Ram Niwas standing outside. When both of them started going together, she raised alarm and in the meantime, her husband reached home. On seeing her crying, he inquired about the reason. She narrated the incident to him. By that time, there was lot of noise and public persons apprehended Pappu from his house but Ram Niwas managed to escape. After thrashing Pappu, the public persons handed over Pappu to her husband in injured condition. She

requested for action against both of them for the reason that both of them in conspiracy with each other had committed rape on her.

9. After registration of the FIR, medical examination of Appellant Pappu as well Prosecutrix was got conducted and statement under Section 164 CrPC of the Prosecutrix was also got recorded before the Magistrate. During further investigation, Appellant Ram Niwas was arrested and he was medically examined. Exhibits were also sent to FSL and on completion of investigation, both the Appellants were sent to face trial for the offences complained of.

10. Needless to say that both the Appellants pleaded not guilty to the charges framed. Prosecution has examined nine witnesses in order to bring home the guilt of the Appellants. Both the Appellants have also been examined under Section 313 Cr.P.C. to enable them to explain the evidence appearing against them wherein they denied their involvement in the occurrence. Appellant Pappu has also examined DW-1 Sh.Om Prakash and DW-2 Sh.Rampat Yadav in their defence.

11. The learned Addl. Session Judge believed the testimony of the Prosecutrix and convicted both the Appellant for committing the offences punishable under Section 376/120-B IPC and under Section 506/34 IPC and sentenced them in the manner stated above, for the following reasons :-

(i) Rape was committed by terrorising her and FIR has been lodged with promptitude.

(ii) Petticoat of the Prosecutrix has been found to be containing human semen.

(iii) The plea of the accused persons of false implication due to dispute with the husband over payment of dues for the work done was disbelieved.

(iv) Testimony of defence witnesses was termed as neither natural nor plausible.

(v) There was no reason to disbelieve the prosecution story and the version of the Prosecutrix about the act committed by both the accused persons.

12. Feeling aggrieved by their conviction and sentence awarded to them by learned Addl. Session Judge, both the Appellants have preferred these two appeals.

13. I have heard learned counsel for the Appellants as well as learned APP for the State and also carefully gone through the record.

14. On behalf of Appellants Pappu and Ram Niwas, it has been contended that the entire prosecution case is based on the testimony of the Prosecutrix which is full of material contradictions. It has been submitted that so far as Appellant Ram Niwas is concerned, neither he was apprehended from the spot nor there is any evidence against him of being in conspiracy with Appellant Pappu for the alleged offence of rape. It has been submitted that both the Appellants were working in the factory of the husband of the Prosecutrix and it was only for the reason that they had a dispute with the husband of the Prosecutrix for the money due to them from him that they have been implicated in this case. Referring to various contradictions in the testimony of Prosecutrix as well failure of the prosecution to join any public witness despite the prosecution case being that Pappu was brought from his house by the public persons and thrashed, not even a single public person has been joined to at least prove this aspect that public heard the cries of the Prosecutrix and brought Pappu from his house and after giving beating to him, handed him over to the husband of the Prosecutrix who in turn handed

him over to the police.

15. It has been further submitted by learned counsel for the Appellant Pappu that if at all the prosecution case is considered to be proved on the basis of testimony of the Prosecutrix, then also it can only be a case of having the physical relationship with consent of the Prosecutrix. This can be proved from the fact that despite being taken for medical examination immediately after the occurrence, there was no sign of injury on any part of the body of the Prosecutrix or on the body of Appellant Pappu due to the scratches he could have received in case his act of rape was resisted by the Prosecutrix. The injury marks were of the beating which was given to him and in the facts and circumstances, the Prosecutrix being grown up lady having three children, could be a consenting party only. Learned counsel for the Appellants have prayed for acquittal of both the Appellants.

16. On behalf of State, Mr.Neeraj Kumar Singh, learned APP submitted that Indian woman by nature is shy and in this case, the rape was committed by putting the Prosecutrix under fear of death pointing out scissor to her which was lying nearby. It has been further submitted that the fact that Appellant Pappu has been immediately apprehended and brought to the spot and police was informed, further proves that the Prosecutrix was not a consenting party, otherwise she had no reason to raise alarm and get the Appellant Pappu apprehended there and then. Learned APP for the State further referred to the MLCs of the Prosecutrix and Appellant Pappu submitting that it is not necessary to have injury marks when the consent was taken by putting her under fear of death. Not only that, she was a married lady having three children and in case of physical relationship with the Appellant Pappu, the possibility of having injury marks on the private

part was not necessary. While refuting the contentions of the Appellant as to each and every aspect of the occurrence, learned APP for the State submitted that these contradictions cannot be termed as material contradictions so as to disbelieve the testimony of Prosecutrix. Learned APP for the State has further submitted that thought the sole testimony of the Prosecutrix is sufficient to base the conviction of the Appellants but here in the case in hand, the testimony of the Prosecutrix is also corroborated by her husband who stated that when he reached home, he found his wife weeping and on inquiry, his wife informed him about the incident. Supporting the judgment by learned Addl. Session Judge, Delhi, learned APP for the State prayed for confirmation of the conviction of the Appellants under Section 376/120-B IPC and sentence awarded to them for the said offences by learned Trial Court.

17. Since the testimony of the Prosecutrix and her husband is crucial for the decision of these two appeals, statement Ex.PW6/A of the Prosecutrix recorded by the police, her statement recorded under Section 164 CrPC before the Magistrate and then recorded before the Court has to be referred to appreciate whether it is consistent and trustworthy and satisfies the test of a 'sterling witness'. The statement Ex.PW6/A of the Prosecutrix recorded by the police has already been referred to above.

From the statement Ex.PW6/A of Prosecutrix recorded by the police on 24.03.1997, her version can be read as :-

(i) Both the Appellants reached their house at 3.00 pm when she was alone.

(ii) She offered them tea and while leaving, Appellant Ram Niwas went out and Appellant Pappu stayed inside and closed the door from inside,

slapped her and pushed her on the bed and also threatened her with scissor.

(iii) After pushing her on the bed, pulled her blouse, broke the hooks and forcible raped her and then left and she could see Appellant Ram Niwas outside and going them together.

(iv) At that time, her husband entered and she raised alarm which attracted the attention of public persons who brought Appellant Pappu from his house, gave beatings to him and handed over him to her husband.

(v) Police also arrived and recorded her statement and then took them for medical examination.

In her statement Ex.PW4/A recorded under Section 164 CrPC on 26.03.1997 by the Magistrate, the Prosecutrix stated :-

(i) Both the Appellants came to her house and enquired about her husband. She knew both of them as they had been working in their factory.

(ii) She offered them tea and snacks and at about 4.00 pm, they started going out. Ram Niwas went out but Pappu bolted door from inside and on being question, he slapped and pushed her and threatened to kill her by showing scissor. Again 4-5 times slapped her and put his hand on her mouth.

(iii) She was made to lie on the bed. She tried to free herself but he came on her and pulled her blouse, broke all the hooks, pulled her sari and petticoat also.

(iv) Thereafter Pappu put an oil bottle and the oil was put in her body, the oil bottle was put by him in her private parts from the front side as well from the back side. She cried a lot but every time she was

slapped.

(v) She pulled out the oil bottle with her hand from her private part.

(vi) Then Pappu forcibly committed rape on her and also gave bite on her cheeks.

(vii) Thereafter Pappu went out and Ram Niwas was standing there and then both of them again inside and threatened to kill her husband.

The version of the Prosecutrix in her own words is :-

'------------Main us par bahut dar gayi. Jab main rone lagi to usne apna haath mere mooh par rakh liya. Usne (Pappu) ne mujhe bistar par lita diya jabardasti. Maine apne aap ko chhoodane ki bahut koshish ki aur roi bhi lekin usne mujhe chhoda nahi aur buri tarah daba diya. Pappu mere upar Chadh gaya aur mera blouse kheech diya aur sare hook tod diya. Sari ko bhi sune utaar ke phenk diya. Phir usne mera petticoat bhi uttar diya. Uske baad usne tail ki bottle uthai aur mere andar sara tail daal diya. Uske baad usne tail ki bottle mere under aage aur peechhe se private parts me dali. Main bahut cheekhi chillai lekin wo mere mooh par thappad maar deta tha. Maine bottle apne aap pakad kar haat se aage ke private parts se bahar nikali. Uske baad usne (pappu) mera buri tarah se balatkaar kiya. Usne mere chehre par bhi kata. Uske baad usne kamre ka darwaja khola aur baahar jane laga. Wahan Ram Niwas khada tha. Phir dono andar aa gaye. Unhone mere pati ko jaan se marne ki dhamki bhi di. Uske baad wo dono chale gaye.'

As per statement of the Prosecutrix recorded before the Court, her version reads as under :-

(i) On 24.03.1997 when her husband was away to Karawal Nagar and children in the neighbourhood, both the Accused came at about 3.00 pm and inquired about her husband and children.

(ii) She asked them to sit informing that her husband would be returning by 4.30 pm.

(iii) She offered them tea. After having tea, they took permission from her to leave. Ram Niwas went out but Pappu stayed back and bolted the door from inside.

(iv) When she questioned him for his act, Pappu slapped her and threatened to kill her with scissor.

(v) Pappu pulled her blouse, torn the hooks and committed rape on her.

(vi) When Pappu opened the door to come out, she saw Ram Niwas standing outside and both of them threatened not to talk about the incident or she has to face dire consequences.

(vi) She raised alarm and in the meantime, her husband came home. Public persons collected there and brought Pappu to her house but Ram Niwas was not traceable.

(vii) Police came and Pappu was handed over to the police.

(viii) Her statement Ex.PW6/A was recorded by the police at PS Gokul Puri which she signed at point-A at the police station.

(ix) She was taken to the hospital and her petticoat was seized.

(x) On 26.03.1997, her statement was got recorded before the Magistrate which is Ex.PW4/A.

18. PW-7 Roshan Lal, husband of the Prosecutrix is the first who reached the spot after the incident. His version is to the effect that :

(i) When he reached home at 4.15 pm, he found his wife weeping and raising alarm. She informed him that a short while ago, Pappu and Ram Niwas came there and when Ram Niwas went out, she had been raped by Pappu.

(ii) Several public persons had also collected at the spot. He alongwith

public persons went to the house of the Pappu and Ram Niwas.

(iii) Ram Niwas was not present at his house but Pappu was caught by him with the help of public persons. Thereafter he produced Pappu before the police and his wife and Pappu were taken to the hospital by the police for medical examination.

19. The MLC Ex.PW1/A of Appellant Pappu reveals :

'Date and hour of arrival' as 24.03.1997 at 9.30 pm Brought by : SI Rajesh Sinha'

The Doctor has recorded eight injuries on the body of Appellant Pappu which are multiple contusions over various part of the boyd like arms, eyes, shoulder, chest, knees (allegedly due to beating given by public). It is also opined by the doctor that he was capable of performing sexual intercourse. Though nature of the injuries has not been given and it is mentioned 'under observation', the injuries were opined to be caused by blunt object.

20. It may be noted here that the Appellant Pappu was not smelling alcohol and has been recorded as conscious and oriented. He was also referred to S.R. (Surgery) and SR (Ortho).

21. Further, perusal of MLC Ex.PW3/A of Prosecutrix 'M' reveals :

'Date and hour of arrival' as 24.03.1997 at 9.45 pm Brought by : SI Rajesh Sinha Alleged h/o sexual assault and putting some oil in her vagina after the act'

It is further mentioned in the MLC of the Prosecutrix that : 'L/E - no sign of injury, petticoat slightly stained. P/S - Cx and vagina healthy, no bleeding points, old torn hymen.'

22. The site plan Ex.PW9/B prepared by the Investigating Officer shows that the place where the Prosecutrix alongwith her family was residing is surrounded by vacant plots in all directions and only trace of habitation is mentioned as Mani Ram Tube Well in West direction and MCD School in East direction which are at distance from the house. A note has been given on the site plan referring that Mark-A is the place where rape was committed but surprisingly there is no place shown as Mark-A in the entire site plan.

23. Here statement of PW-7 Roshan Lal (husband of the Prosecutrix) can be referred to the extent that in cross examination he stated that his house consists of one room and there is one single bed and one takht in that room and that he had also seen the oil spilled over the bedsheet and the bottle of the oil lying on the bed but the police did not seize the oil bottle.

24. In the case of Abbas Ahmed Choudhury v. State of Assam (2010) 12 SCC 115, while observing that a case of sexual assault has to be proved beyond reasonable doubt as any other case and that there is no presumption that a prosecutrix would always tell the entire story truthfully, the Hon'ble Supreme Court observed as under:-

'Though the statement of prosecutrix must be given prime consideration, at the same time, broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there could be no presumption that a prosecutrix would always tell the entire story truthfully. In the instant case, not only the testimony of the victim woman is highly disputed and unreliable, her testimony has been thoroughly demolished by the deposition of DW-1.'

25. In another case Raju v. State of Madhya Pradesh (2008) 15 SCC 133, the Supreme Court stated that the testimony of a victim of rape has to be

tested as if she is an injured witness but cannot be presumed to be a gospel truth. Para 11 of the report is extracted hereunder:-

'11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.'

26. No doubt, the conviction in the cases like rape, the Court can base the conviction on the solitary statement of the victim of sexual assault but while basing conviction on the sole testimony, the Court must consider that such witness is a sterling witness.

27. In the case of Rai Sandeep @ Deepu vs. State of NCT of Delhi (2012) 8 SCC 21, the Supreme Court commented about the quality of the sole testimony of the prosecutrix which could be made basis to convict the accused. The Supreme Court held as under:-

'22. In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be

natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.'

28. In Tameezuddin @ Tammu v. State (NCT of Delhi) (2009) 15 SCC 566, the Supreme Court held as under :

'It is true that in a case of rape the evidence of the Prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter.'

29. When testimony of the Prosecutrix is examined on the above settled principles on which the testimony of the Prosecutrix is to be tested, I am of

the considered view that there are inherent infirmities in her version which makes her testimony wholly unreliable.

30. First it is necessary to refer to the scientific evidence in this case and to ascertain if it is capable of connecting the Appellant Pappu with the crime who is stated to have committed rape on the Prosecutrix. As per the FSL report Ex.PW9/D, the bedsheet Ex.P4 was found having dirty whitish stains and human semen was detected on it. There is no report of any oil being spilled over the bedsheet as claimed by the Prosecutrix and her husband. It may be noted that Prosecutrix is a married lady and there is no evidence that the human semen detected thereon is of Appellant Pappu and not that of her husband. Similarly, the human semen detected on the petticoat is also not opined to be that of Appellant Pappu despite the fact that blood sample of Appellant Pappu was taken and sent to FSL.

31. The statement Ex.PW6/A of the Prosecutrix was recorded by the police immediately after the occurrence and at that time, except being threatened with scissor and dire consequences in case the matter is reported by her, she did not claim any injury being caused to her or oil bottle being put in her vagina and anal and thereafter committing sexual intercourse with her.

32. The Prosecutrix in her statement under Section 164 Cr.P.C. Ex.PW4/A claimed that after oil was put in her private parts from front side and back side, she pulled out the bottle from her vagina with her own hand and thereafter rape was committed on her. The doctor who examined the Prosecutrix did not find any trace of oil or violence on her vagina which would have been there had she been raped in the brutal manner disclosed by her before learned Magistrate.

33. Traces of oil would have appeared on the private part of Appellant Pappu who was apprehended immediately after the occurrence and handed over to the police and sent for medical examination without giving him any chance of wiping out the traces of oil on his private part.

34. The Prosecutrix has given the age of her eldest child as 12 years studying in 6th standard, second child as 9 years studying in 3rd standard and third child as 6 years studying in nursery. She claimed that all the children were away to play in the neighbourhood but the site plan does not show any neighbourhood. Rather PW-5 Ct.Surender Kumar has stated that the area is not having many buildings and is largely lying vacant. It remains unexplained as to where the children were at that time as even the Investigating Officer states that when he reached the spot on receiving the call, the children were not at home.

35. No public person has been named who brought Appellant Pappu from his house and thrashed him. There are material contradictions even on the aspect as to whether Roshal Lal - husband of the Prosecutrix accompanied public person to the house of Appellant Pappu or public persons brought Pappu and handed over to Roshan Lal. Surprisingly, in the rukka, the time of sending the rukka is recorded as 6.20 pm, FIR has been registered vide DD No.21-A at 6.50 pm but time of arrival of Appellant Pappu in GTB Hospital is recorded as 9.30 pm and that of Prosecutrix is recorded as 9.45 pm in their respective MLCs. This is despite the fact that in the endorsement, the Investigating Officer had recorded that he was proceeding to GTB Hospital for their medical examination. Definitely the distance between the place of occurrence and GTB Hospital is not so much as t take more than three hours to reach the hospital. This itself suggests that during

this period of three hours despite the fact that Appellant Pappu was badly injured having multiple contusions and injuries all over his body, no immediate medical aid was provided to him. Further, when Appellant Pappu was allegedly given beating by public persons, no public person was in sight or cited as a witness.

36. PW-7 Roshan Lal, husband of the Prosecutrix claimed that he informed the police from the house of one Chaudhary living nearby. Surprisingly, DD No.13 recorded at 4.55 pm neither contains the name of the informant nor the telephone number. Even it does not appear that the husband has reported the occurrence for the reason that information has been recorded as 'Ek Aurat Ke Saath Rape Ho Gaya Hai' which could not be a language by a husband giving information of rape on his wife.

37. After considering the entire material evidence, the only conclusion that can be drawn is that there was hardly any convincing evidence available on record on the basis of which the learned Trial Court could record conviction of both the Appellant for a heinous crime like rape, criminal intimidation and conspiracy to commit rape. There is no evidence on record to prove the knowledge on the part of both the Appellants about Prosecutrix being alone at her house at that time and their willingness to stay there for a longer period to have tea. The possibility of the Children returning home on Holi festival, when the festival of colours was over by afternoon only, was very strong. Since it is a one room house, there was hardly any escape route for Appellant Pappu had the husband of the Prosecutrix returned while he was committing rape for the reason that even as per Prosecutrix, she informed that her husband would return by 4.30 pm whereas the time of their arrival has been given as 3.00 pm and immediately

after taking tea, the rape was stated to have been committed.

38. Surprisingly, despite alleging it to be a brutal rape on her body, there was no bite marks on her cheeks, no injury marks on her body or presence of oil in her private part or sign of injury being caused by insertion of oil bottle in her private part (both front and back). Even bite marks were not noticed by the doctor on her cheeks as claimed by her before the learned Magistrate. The Prosecutrix also claimed that she put resistance when the rape was committed but the doctor could not notice any mark of nails scratching or bruises on the person of Appellant Pappu caused by the Prosecutrix while putting resistance. Since the surrounding area was not habitated, it remains unexplained as to who could hear the cries of Prosecutrix so as to straight away reach the house of Appellant Pappu and after giving him beating, to bring him to the house of the Prosecutrix and hand over him to her husband. This is also in contradiction with the version of PW-7 Roshan Lal who claimed that he went to the house of Appellant Pappu and apprehended him with the help of public persons and beatings being given to Appellant Pappu by public persons.

39. Thus, it is noticed that the Prosecutrix as well her husband had been making deliberate improvements at different stages with a view to go on improving the case further to ensure the conviction of both the Appellants. It may be noted here that if the site plan is considered to be correct, the door of the room does not open in the gali and after covering some open space, one can join the gali. From the room, the opportunity to see what was happening in the gali was remote. She had no occasion to see Appellant Ram Niwas for the reason that she does not claim that by the time Appellant Pappu was leaving, she had a chance to wear her clothes and move forward

to see who was present in the gali. At the cost of repetition, it can be recorded that there are material contradictions on the aspect as to whether after committing rape, Pappu left her room after threatening her and joined Appellant Ram Niwas who was standing in the gali or Appellants Ram Niwas and Pappu again came to her room, threatened her and then left.

40. After considering the testimony of the above witnesses, I am of the considered view that there was no material at all to prove the allegations of rape by Appellant Pappu and of conspiracy to commit rape by Appellant Ram Niwas. Neither the medical evidence nor the FSL result support prosecution's case. Learned Trial Court, while appreciating the evidence of the Prosecutrix, her husband and medical as well as scientific evidence, completely overlooked the inherent infirmities and improbabilities in the prosecution version and the glaring errors referred to above appearing in the testimony of Prosecutrix which go to the root of the matter to such an extent that her entire testimony has not only to be viewed with suspicion but also on appreciation in the light of surrounding circumstances found to be wholly unreliable and not worthy of any credence. The learned Addl. Session Judge has failed to consider the striking circumstances narrated above which demolish the prosecution case. Thus the approach by learned Trial Court that there is no reason to disbelieve the prosecution's story and version of the Prosecutrix, vitiates the impugned judgment.

41. In view of the above discussion, since the testimony of the Prosecutrix has been found to be untrustworthy and unsafe to base the conviction of both the Appellants for the offences complained of, both the Appellants deserve to be acquitted.

42. For the above reasons, I am of the considered view that the

prosecution miserably failed to bring home any of the charges against any of the Appellants beyond reasonable doubt. Thus, both the Appeals are allowed and Appellants Pappu and Ram Niwas are acquitted of the charges framed and their conviction and sentence awarded to them is set aside. Since both the Appellants are on bail, their bail bonds stand cancelled and sureties discharged.

43. TCR be sent back alongwith copy of this order.

PRATIBHA RANI, J AUGUST 22, 2014 'st'