S. K. SETH, J. ( 1 ) THIS judgment shall govern the disposal of Criminal Appeal No. 968 of 1979 also. ( 2 ) THE Second Additional Sessions Jabalpur, vide his judgment dated 20. 9. 1979 passed in Sessions Trial No. 134 of 1979 convicted five persons namely Yunus Anthony alias Innoo, Dayal Charan, Denial alias Dannu, Narayan Swami alias Hauna and Mangloo alias Babbu, under section 366 of the Indian Penal Code and sentenced them each to rigorous imprisonment for five years. In addition, he convicted four of them, namely, Yunus Anthony, Dayal Charan, Denial and Narayan Swami under section 376 of the Indian Penal Code and sentenced them each to rigorous imprisonment for seven years. It was ordered by him that the sentence awarded to the accused-appellants would run concurrently. This appeal by accused-appellants Dayal Charan, Narayan Swami and Mangloo is directed against their convictions and sentences. Criminal Appeal No. 968 of 1979 is by accused appellants Yunus Anthony and Denial and the same is directed against their above-said convictions and sentences. ( 3 ) THE prosecutrix Durgabai alias Chandabai (P. W. 11), was aged about 20 years on the date of the incident. It was stated that she lived along with her husband Baijnath (P. W. 14) and brother Bharatlal (not examined) in, a house situated near an important junction of roads called Nagrath Chouraha in the city of Jabalpur. One Noorjahan (P. W. 6) aged about 22 years, was employed by the prosecutrix as a domestic servant. She lived in a house situated not for off from the house of the prosecutrix. ( 4 ) ACCORDING to the case of the prosecution, the incident happened on the night of 15. 8. 1976 and continued till the early morning of 16. 8. 1976. A few days prior to the date of the incident, Durgabai (P. W. 11), her maid servant Noorjahan and brother Bharatlal had gone to a photo studio situated in front of a cinema house called Veenit Talkies and go their group photo taken at the studio. On 15. 8. 1976, in the afternoon Durgabai and Noorjahan revisited the photo studio and obtained the photos after making the payment for the same. Thereafter, the two women went back to a cinema house called Jyoti Talkies and saw the evening show there from 6 P. M. to 9 P. M. After the show, at about 9. On 15. 8. 1976, in the afternoon Durgabai and Noorjahan revisited the photo studio and obtained the photos after making the payment for the same. Thereafter, the two women went back to a cinema house called Jyoti Talkies and saw the evening show there from 6 P. M. to 9 P. M. After the show, at about 9. 15 p. m. , they hired a rikshaw for returning to their respective houses. ( 5 ) ACCORDING to the further case of the prosecution, on the way back to their houses in the rikshaw, Noorjahan (P. W. 6) requested the prosecutrix to drop her at her house first. The request was accepted by the prosecutrix. When the rikshaw was going towards the house of Noorjahan, two persons, reached there, riding on a bicycle, and asked the rikshaw puller (not examined) to stop the rikshaw. In the meanwhile, more persons reached there, riding on two bicycles. There was some exchange of words between two of the said persons and the prosecutrix. One of the said persons slapped Noorjahan. Noorjahan got down from the rikshaw and fled away in the direction of the hospital of Dr. Barat which was situated nearby. After Noorjahan had gone away, the two of the five miscreants got into the rikshaw and set on each side of the prosecutrix. The rikshaw-puller was asked to start the rikshaw. The same was taken at first towards the Sadar side and then to the Gwarighat side. The prosecutrix was made to keep quiet on the point of knife by the two miscreants sitting by her side. The rest of the miscreants followed the rikshaw on their bicycles. Ultimately, the rikshaw was taken to a house situated in the Rampur Colony at about 11 in the night. ( 6 ) THEREAFTER, according to the case of the prosecution, one of the miscreants (identified later on as Denial) opened the lock of the house in question situated in the Rampur Colony and the miscreants took the prosecutrix inside the same. One of them (identified later on as Mangloo) was sent by the other miscreants, to bring country liquor. However, once the said miscreant left the house he did not come back. Thereafter, the miscreants undressed the prosecutrix forcibly and committed rape on her one after the other. One of them (identified later on as Mangloo) was sent by the other miscreants, to bring country liquor. However, once the said miscreant left the house he did not come back. Thereafter, the miscreants undressed the prosecutrix forcibly and committed rape on her one after the other. The act was repeated by the miscreants for the second time and the orgy continued till about 4 in the morning. The prosecutrix was then asked to dress herself and taken to another house in the same locality. In the said house, she was compelled to take a bath. In the morning, while two of the miscreants (identified later on as Dayal Charan and Narayan Swami) left the said house, the remaining two (identified later on as Yunus Anthony and Denial) kept a watch on the prosecutrix. On their return, the two miscreants, who had gone out, informed their companions about a report having been lodged with the police. On this, at about 12 in the noon, the four miscreants made the prosecutrix to sit in a rikshaw and asked the rikshaw-puller (not examined) to drop the prosecutrix at her house. The miscreants followed the rikshaw upto some distance and then went away. ( 7 ) THE prosecutrix reached the house of Noorjahan (P. W. 6) and told her as to what she had to undergo. She asked Noorjahan to accompany her to the police-station. Noorjahan informed her about she having already lodged the report at the police-station in the night. The prosecutrix and Noorjahan reached the police-station at about 1 in the after noon. There, statement Ex. D. 2 of the prosecutrix was recorded by Sub-Inspector C. L. Goutam (P. W. 15) at 4 P. M. The clothes (a sari and peticoat) that had been worn by the prosecutrix were seized from her vide seizure memo. Ex. P. 15. The prosecutrix was sent for medical examination to the Elgin Hospital on 17. 8. 1976. She was examined by Dr. (Miss) Gulati (P. W. 16) early in the morning. The report of the lady Doctor was Ex. P. 27. The vaginal smear of the prosecutrix was taken by the lady Doctor on 2 slides and the said slides were handed over in a sealed condition to the police constable. The peticoat that had been seized by the Sub-Inspector from the prosecutrix on 16. 8. The report of the lady Doctor was Ex. P. 27. The vaginal smear of the prosecutrix was taken by the lady Doctor on 2 slides and the said slides were handed over in a sealed condition to the police constable. The peticoat that had been seized by the Sub-Inspector from the prosecutrix on 16. 8. 1976 was sent for opinion to the lady Doctor on 7. 9. 1976 and was later on sent for chemical examination as per the advice given by her. ( 8 ) ACCUSED-APPELLANT Yunus Anthony was arrested on 20. 8. 1976. The remaining four accused- appellants were arrested on 22. 8. 1976. After their arrest, the accused-appellants were sent for medical examination. The report dated 20. 8. 1976 of Dr. K. N. Sharma (P. W. 9) in respect of accused-appellants Yunus Anthony was Ex. P. 10. The reports dated 22. 8. 1976 of Dr. A. K. Deria (P. W. 10) in respect of accused-appellants Narayan Swami, Denial and Dayal Charan were Exs. P. 4 to P. 13. ( 9 ) IT was stated that in consequence of information given by accused-appellant Denial to Sub- Inspector Ram Anup Shukla (P. W. 17) on the night of 22-8-1976 vide memo. Ex. P. 4, certain clothes, a knife and one of the photos of the prosecutrix and others were recovered from the house of the said accused-appellant in the Rampur Colony on the same night and were seized vide seizure memo. Ex. P. S. Similarly, in consequence of information given by accused-appellant Yunus Anthony to investigating Officer C. L. Goutam (P. W. 15) on 23-8-1976 at noon vide memo. Ex. P. 3 one handkerchief belonging to the prosecutrix and one of the photos of the prosecutrix and others were recovered from the house of the said accused-appellant the same day vide seizure memo. Ex. P. 6. ( 10 ) IT was also stated that six persons namely the five accused-appellants and one Vinod were put up for identification in the test identification parade held by Naib Tahsildar R. S. Shukla (P. W. 1) in the Muslim Musafikhana at Omti on 23-8-1976 and the prosecutrix identified all the six persons correctly. The identification memo was Ex. P. 1. ba. The identification memo was Ex. P. 1. ba. It may be pointed out that the first information report that was said to have been lodged by Noorjahan (P. W. 6) at police-station Omti on the night of 15-8-1976 at about 10 P. M. was Ex. P. 1. But, in her evidence in the court, though the said witness admitted that, she had lodged the first information report as alleged, she denied the contents of Ex. P. 7 as having been given out by her. Similarly, though she admitted the fact of the test identification proceedings having been held, she denied the fact of her having successfully identified anyone of the accused-appellants. She was declared hostile and was permitted to be cross-examined by the prosecution. ( 11 ) IT was on a consideration of the evidence relating to the case of the prosecution as stated above that the Additional Sessions Judge found the accused-appellants guilty of offence under Sections 366 and 376 of the Indian Penal Code and sentenced them in the manner already stated above. In the two appeals, filed on behalf of the accused-appellants, the learned counsel for the accused-appellants argued at length on several such aspects of the evidence produced in the case as according to him created a reasonable doubt about the accused-appellants being guilty of the offences for which they were convicted by the Additional Sessions Judge. It was contended by the learned counsel that the accused-appellants were entitled to benefit of doubt and deserved to be acquitted. ( 12 ) 12a. Some of the above-said aspects were emphasized by the learned counsel in the background of Section 155 of the Evidence Act which relates to impeaching credit of a witness and provides that when a man is prosecuted for rape it may be shown by the adverse party that the prosecutrix was generally of an immoral character. The attention was invited to that part of the evidence of the prosecutrix where she stated that her first marriage had been with one Ishwardas. It was pointed out how soon after making the above-said statement, and after trying to recollect, the prosecutrix corrected herself in the next sentence and came out with the statement that her first marriage had not been with Ishwardas but with one Nekram. It was pointed out how soon after making the above-said statement, and after trying to recollect, the prosecutrix corrected herself in the next sentence and came out with the statement that her first marriage had not been with Ishwardas but with one Nekram. The attention is also invited to that part of the evidence of the prosecutrix where she stated that it was during the subsistance of her previous marriage that her parents had made her go into the keeping of Baijnath (P. W. 14) and that at the time of giving her evidence the prosecutrix has even left this Baijnath. ( 13 ) IT was pointed out by the learned counsel that there existed reason to wonder why was the prosecutrix living with this Baijnath (P. W. 14) in a rented accommodation in the particular house situated near Nagrath Chouraha in the city of Jabalpur at the relevant time. According to the learned counsel, there again hanged an interesting tale. This Baijnath was a permanent resident of village Kethra. He gave a peculiar reason for his living with the prosecutrix in the particular house in the city of Jabalpur. According to him; he had not been pulling on well with his brother and, therefore, his father had told him to go and live in Jabalpur. For what reason? Nothing just nothing. He set idle and did nothing at Jabalpur. The prosecutrix also did nothing at Jabalpur. Then what did they do for their living? If Baijnath was to be believed, he just went to village Kethra from time to time and brought Kharcha from there for meeting his expenses at Jabalpur. ( 14 ) ANOTHER intriguing aspect of the case, according to the learned counsel, was the manner in which the news about the alleged abduction of the prosecutrix was said to have affected her so- called husband Baijnath. This man had stated in his police-case diary statement Ex. D. 3 that not finding the prosecutrix at home he went to the house of Noorjahan in the evening of 15-8-1976, who had then returned with some one in the car and told him as to how certain miscreants had taken away the prosecutrix with them by using force. As per the said statement he told Noorjahan to go and lodge a report at the police-station. As per the said statement he told Noorjahan to go and lodge a report at the police-station. As already stated above, as pet; the prosecution case, the incident of alleged abduction was said to have taken place at about 9-30 in the night and not in the evening. In view of the said position, this witness, while giving his evidence in the Court, tried to make improvements in what he had stated in his case diary statement with a view to make his version consistent with the prosecution case. He made another improvement also. He stated that Noorjahan informed him that she had already made the report at the police-station. If that was so, it made the time of his visit to Noorjahants house even beyond 10 in the night which by no stretch of imagination could be confused with evening as stated by him n his case diary statement. ( 15 ) NOW, whichever version as regards the conduct of Baijnath after receiving the news about the alleged abduction of the prosecutrix was believed it was argued by the learned counsel that one thing was clear as the day light. As per both the versions, the news bothered him in the least. As per his case diary version, he told Noorjahan to go to the police-station and lodge a report about the incident as if it was none of his concern that his wife had been taken away by the strangers. As per his evidence in the Court, he went to the police-station in the night and returned to his house soon thereafter. No, he did not lodge any report at the police-station. He also did not care to make any search himself. It was only on the next day when the police called him at the police-station at about 2 P. M. that he took the trouble of going there. Where does all this lead to as it that this man saw nothing new or perturbing in the prosecutrix having gone away with or taken away by the strangers? It was only on the next day when the police called him at the police-station at about 2 P. M. that he took the trouble of going there. Where does all this lead to as it that this man saw nothing new or perturbing in the prosecutrix having gone away with or taken away by the strangers? ( 16 ) IT was argued by the learned counsel for the accused-appellants that it was understandable that it was in the above-said context that a suggestion was made to the prosecutrix by the defence in her cross-examination about her having been very friendly with a girl named Dolly living in the ground-floor of the house in which the prosecutrix lived on the relevant date. The prosecutrix accepted the said suggestion. It was also understandable that it was again in the above-said context that though Noorjahan turned hostile and stated many such things in her evidence in the Court as were contrary to her earlier versions in the first information report and her case diary statement, there was no reason to reject that part of her evidence wherein she stated as follows: While they were returning in the rikshaw, one boy, riding on a bicycle, met them on the way. The said boy and the prosecutrix started talking to each other. There was also some talk of giving money between them. The prosecutrix said that all right. When the witness realized that the intentions of the prosecutrix were not good (JAB MUZE CHANDRA KI NAZAR GALAT LAGI), she jumped out from the rikshaw and went away from there. It was submitted by the learned counsel that it was one thing to turn hostile and tell falsehood on account of having seen allegedly won over by the accused-appellants, but it was another thing to malign her own mistress for no apparent reason. It was also submitted by the learned counsel that was it believable that when Noorjahan could so easily get down from the rikshaw and save herself, the prosecutrix could not do the same had she intended to do so? ( 17 ) IT is in the above-said background that the learned counsel for the accused-appellants wanted this Court to consider the medical evidence produced in the case. According to Dr. ( 17 ) IT is in the above-said background that the learned counsel for the accused-appellants wanted this Court to consider the medical evidence produced in the case. According to Dr. (Miss) Gulati (P. W. 16), she had found no marks of injury over the perineal region or any other part of the body of the prosecutrix. The prosecutrix was used to intercourse, but no signs of fresh intercourse were present. In her cross-examination she agreed to the suggestion made by the defence that if a woman was raped seven or eight times by four or five persons then there were possibilities of signs of bruises, redness, swelling and inflammation over the private parts of the raped woman. She, however, tried to qualify the said admission by stating that these signs would be visible if the woman was examined within 48 hours from the time of the incident. She agreed that the said signs would not disappear even if the woman took bath. According to her, the said signs would be visible on the private parts even if the woman was used to sexual intercourse. It was submitted by the learned counsel that even when the prosecutrix had been available for medical examination in the afternoon of 16-8-1976 the investigating, agency for some reason best known to it chose to send the prosecutrix for medical examination only in the morning of 17-8-1976, no blame could be laid at the door of the accused-appellants in the said matter. It was further argued by him that it was impossible that if the sexual orgy by four persons was committed on the prosecutrix throughout the night intervening 15th and 16th August, 1976 in the manner alleged by the prosecutrix, there would not be found any thing-even a swelling, redness or inflammation on her private parts in her examination within 36 hours of the said orgy. ( 18 ) ON the question relating to the alleged incriminating articles namely a handkerchief and three copies of photo having been recovered and seized from the house of accused appellants Denial and Yunus Anthony in consequence of information said to have been given by them vide memoranda Exs. p. 3 and p. 4 the learned counsel for the accused-appellants draws the attention of this Court to an interesting aspect of the evidence produced in the case. p. 3 and p. 4 the learned counsel for the accused-appellants draws the attention of this Court to an interesting aspect of the evidence produced in the case. It was pointed out that as per the version of the incident contained in the first information report (Ex. p. 7), the two women were said to have left the house of Noorjahan at about 5-30 in the evening and gone straightaway to the Jyoti Talkies to see the cinema show. There was absolutely no mention in the said version as regards their having gone for obtaining the photos from the photo studio in the afternoon of the said day. Was it that this story about the two women having gone to the cinema talkies after obtaining the photos from the photo studio cooked up later on and the evidence relating to the alleged memos and seizure brought into existence so as to leave no doubt as regards the accused- appellants being the culprits? It was in the said context that the learned counsel for the accused- appellants criticized the view taken by the learned Additional Sessions Judge in making light of the glaring contradictions in the evidence of Panch witness Harsh Vardhan (P. W. 5) when compared with that of Sub-Inspector Ram Anup Shukla (P. W. 17) and investigating officer C. L. Goutam (P. W. 15) on the question relating to the alleged giving of information by the two accused- appellants and the alleged recoveries and seizures made in pursuance of the same. The prosecution did not choose to examine the other Panch witness mentioned in Exs. p. 3 to p. 6. If the evidence of Panch witness Harsh Vardhan (P. W. 5) was to be believed, both the accused appellants had given the information in the police-station on the same day and at the same time and it was when they were taken together to the two houses in Rampur Colony on the same day in consequence of the said information the above-said articles wererecovered and seized from them. There was nothing in the evidence of Harsh Vardhan (P. W. 5) which suggested that the prosecution wished to challenge the above-said version given by the said witness. In the circumstances, it was argued by the learned counsel that it was difficult to place any reliance on the evidence in question. There was nothing in the evidence of Harsh Vardhan (P. W. 5) which suggested that the prosecution wished to challenge the above-said version given by the said witness. In the circumstances, it was argued by the learned counsel that it was difficult to place any reliance on the evidence in question. The learned counsel invited the Court to have a look at the photo said to have been recovered and seized from the houses of the two accused-appellants and to consider whether had the said photos been snatched from the possession of the prosecutrix during the course of the orgy in the Rampur house, the same would have been in such neat and perfect condition as they appeared to have. ( 19 ) LASTLY, it was argued by the learned counsel that apart from the fact that the evidence in the case indicated that the two women while going to the Musafir Khana to take part in the test identification proceedings had opportunity to have a look at the accused-appellants before making the identification, there was this further fact of the person conducting the said proceedings to have mixed only either other persons with the persons to be identified when the number of the persons to be identified was six. It was submitted by the learned counsel that in the circumstances, the test identification proceedings had little evidentiary value. ( 20 ) IN the opinion of this Court, taking an overall view of the above-said circumstances pointed out by the learned counsel for the accused-appellants and other evidence produced in the case, it was not safe to base the convictions of the accused-appellants merely on the basis of what was deposed to against them by the prosecutrix. There being no other reliable evidence on record to connect the accused-appellant conclusively with the offences alleged against them, they were entitled to benefit of doubt and deserved to be acquitted. 21. For the reasons stated above, this appeal as also Criminal Appeal No. 968 of 1979 are allowed. The convictions and sentences of the accused-appellants are set aside and they are acquitted. Appeal allowed. .