JUDGMENT N.N. Sharma, J. - There are two appellants in this appeal. The appeal is directed against the conviction of appellants under S. 148, Penal Code : each of them was sentenced to two years' rigorous imprisonment, each of them was further convicted under S. 452, I.P.C., and sentenced to two years R. I. and a fine of Rs. 250/-, each appellant was further convicted under S. 342/149, I.P.C., and sentenced to one year's R.I., each appellant was further convicted under S. 323/149, I.P.C., and sentenced to one year's R.I., each appellant was further convicted under S. 376. I.P C. and sentenced to three years' R.I. All the sentences were ordered to run concurrently by learned I Addl. Sessions Judge. Shahjahanpur on 12-9-1978 in Sessions Trial No. 26 of 1976, State v. Nankoo Singh. 2. Prosecution story briefly stated is that the appellants along with their six associates armed with guns and KANTAS intruded the house of Rampal Jatav. P.W.1. to wreak vengeance on Rampal who had abused earlier Thakurs of the village for setting the hut ablaze of his cousin Cheda shown in the site plan Ext. Ka. 4 situated in the same compound towards north of the house of P.W.1. prior to occurrence. Nankoo Singh who is a Thakur felt about it and so all these intruders intruded the house of the victim. P. W. 3, wife of Rampal, Smt. Shanti Devi. As it happened to be a mid summer night at time of occurrence so the couple was found sleeping in the courtyard. It is alleged that a lamp was burning in the thatch at a distance towards south of the place from where the couple was asleep. Nankoo Singh and Durga appellants were recognised in the light of lamp illuminating from the thatch. Nankoo Singh was armed with a gun while Durga was armed with KANTA : their associates were also armed with guns and lathis. 3. The intruders overpowered Rampal and tied his hands to his hack and carried him away with the avowal to kill him. He was taken at a distance of 200 steps or so and confined there under the Neemtree towards west of his house at place shown by letter-C in the said site plan. 4. The appellants and one stranger caught Smt. Shanti Devi who was raising alarm. He was taken at a distance of 200 steps or so and confined there under the Neemtree towards west of his house at place shown by letter-C in the said site plan. 4. The appellants and one stranger caught Smt. Shanti Devi who was raising alarm. she was taken in the thatch and ravished there turn by turn by the appellants and a stranger successively; during this time three intruders kept sitting in the courtyard despite the arrival of co-villager Ranvir, P.W.2. and Bhikam who approached the scene of occurrence and intervened; the appellants did not listen to their entreaties and belaboured Smt. Shanti Devi with lathi, etc. also and kept her there till dawn. This high-handedness continued, till the next morning when Rampal was released after chastisement, he learnt tale of woe from his wife and a report about the occurrence was lodged at police-station. Tilhar by Smt. Shanti Devi on 5-5-1975 at 1.15 P. M. The distance of the police-station from the scene of occurrence was nine miles. This report Ext. Ka 1 was taken down at the police-station by head constable Irshad Ahmad who registered the case in general diary, copy of which Ext. Ka 3 is on record. Semen stained petticoat was also made over at the police station by Smt. Shanti Devi at the same time for which memo Ext. Ka 2 was drawn. 5. Writing of Sri Irshad Ahmad was proved by the investigator Sri Jaivir Singh. P. W. 4, who claimed to have interrogated the witnesses but did not preserve the case diary containing any interrogation of the interrogatees. He also prepared site plan Ext. Ka. 4. Charge-sheet Ext. Ka. 5 was submitted against the appellants. 6. It appears that associates of appellants could not be known. Prosecution examined four witnesses in support of their case. P. Ws. 1 to 3 are the main witnesses relied upon by the prosecution. P. W. 4 is the Investigator. 7. Both the appellants pleaded not guilty: they denied their participation in the occurrence. Nankoo Singh maintained that he had been implicated at the instance of Bhikam Singh his arch enemy. Durga happened to be servant of his father-in-law and as (such) has been dragged in the case. 8. Learned trial Judge believed the P. Ws. and recorded the conviction and sentences aforesaid. 9. I have heard learned counsel for the parties and perused the record. 10. Durga happened to be servant of his father-in-law and as (such) has been dragged in the case. 8. Learned trial Judge believed the P. Ws. and recorded the conviction and sentences aforesaid. 9. I have heard learned counsel for the parties and perused the record. 10. Appeal is allowed for the following reasons :- It is correct that testimony of Smt. Shanti Devi, Prosecutrix P. W. 3 is not lightly discardable, it is also correct that Smt. Shanti Devi was aged about 19 years at the time of the said outrage according to her X-ray examination Ext. Ka-6 and under such circumstances it was not possible to expect any visible marks of injury on her vagina but spermetozoa could have been found had she been ravished five times in quick succession as alleged by her. 11. However, a careful scrutiny of her statement shows that it does not hold water. She alleged in her report that she was belaboured with lathis by Nankoo Singh and Durga: she further testified that she was revished five times: her medical examination which was conducted on 6-5-1975 at 12.15 P.M. by the Medical Officer concerned is on record and disclosed that there was no external mark of injury on her person, it also negatives the allegations of rape. So this medical report does not corroborate her statement, it simply negates her testimony on the point that she was ravished five times in high-handed manner. 12. It appears that the learned trial Judge was impressed by some semen marks on her petticoat which was never sent to Chemical Examiner or Serologist and under such circumstances no inference is deducible by the fact that the petticoat was taken into possession by Sri Irshad Ahmad who was not even examined in this case. Had Irshad Ahmad been examined in this case he could have been questioned on this point. 13. As regards the motive of the occurrence it is alleged that Rampal or Smt. Shanti Devi had no direct ill-will with Nanku Singh. Rampal did not work as a labourer at his house, Nankoo Singh was displeased as the thatch of Cheda, cousin of Rampal was set on fire prior to the occurrence and Rampal was vituperative and indiscriminately abused the Thakurs. However, this motive was not made out by the testimony of P. Ws. 1 to 3. Rampal did not work as a labourer at his house, Nankoo Singh was displeased as the thatch of Cheda, cousin of Rampal was set on fire prior to the occurrence and Rampal was vituperative and indiscriminately abused the Thakurs. However, this motive was not made out by the testimony of P. Ws. 1 to 3. Nankoo Singh does not reside in Madnapur, he resides at the house of his father-in-law in village Dori. It was conceded by P. Ws. 1 to 3 that Nankoo Singh never asked him to work at his house as a labourer nor any abuses were hurled on Nankoo Singh by Rampal. The best witness on this point whose thatch was engulfed with fire was Cheda, cousin of Rampal who did not enter the witness box to support the alleged story about ignition of this thatch. If Nankoo Singh was displeased with Rampal and bandits carried him away the avowal to kill him despite the intervention of his wife Smt. Shanti Devi he could not have gone scot free. He did not sustain a single scratch on his person. Under such circumstances the alleged motive for the occurrence has not been made out despite the improvement made by Smt. Shanti Devi in her statement at every material point. 14. Testimony of Smt. Shanti Devi does not hold water, according to her statement the co-villagers reached her house while intruders were there and outrage was going on. She was kept confined in the hut where she was repeatedly ravished despite the intervention of Ranvir and Bhikam. Ranvir, P. W. 2. contradicts her on this point. He claimed to have heard the hue and cry from his house which was at a distance of one furlong and saw some persons standing at the door of Rampal, no bandit was there when he reached there, he simply found wife of Rampal crying at about mid-night so the allegation of Smt. Shanti Devi that she was kept confined till dawn by intruders who were present there and repeatedly ravished her falls through. Had there been any substance in the matter at least Cheda. Brijlal who lived in the same compound and were kith and kin of Rampal would have come forward to testify about this intrusion. No other witness was examined to support the prosecution story. 15. According to Rampal, P. W. 1. Had there been any substance in the matter at least Cheda. Brijlal who lived in the same compound and were kith and kin of Rampal would have come forward to testify about this intrusion. No other witness was examined to support the prosecution story. 15. According to Rampal, P. W. 1. they were awoke when the intruders reached there: according to his wife Smt. Shanti Devi they were asleep. The occurrence had taken place at about mid-night, there was no light at the scene of occurrence. It is alleged that a lamp was burning in the thatch at a distance and its light facilitated recognition of appellants. The place of that lamp has not been shown in the site plan, it is improbable to believe that any lamp was burning inside the thatch when the couple were sleeping outside in the courtyard, when the occurrence took place during night; question of light assumed importance and the investigator must have taken that lamp into possession and should have shown its place to appreciate the ocular testimony as to whether it could have been possible to recognise the bandits in its light. That has not been done. 16. Ranvir, P.W.2, further stated that he was never interrogated by the Investigator. Investigator in his statement simply pointed out that the case-diary had been misplaced. It appears that it was not preserved. A record of statements under S. 161 Cr.P.C., in cases initiated on police-report has importance and should be preserved in order to show as to when the witnesses were interrogated and in order to contradict the prosecution witnesses a duty cast on investigator by S. 161. sub-cl. (3) Cr.P.C. In Tilkeshwar Singh v. State of Bihar, reported in AIR 1956 SC 238 the importance of this provision was pointed out. Obviously the accused appellants have been prejudiced by non-production of that record in this case. In Bheemavarapu Subba Raddi, reported in (1947) 48 Cri LJ 973 : AIR 1948 Mad 23 it was observed : "(Per Horwill. J.) Although no irregularity is committed by the taking of notes for the preparation of the case diary instead of recording statements. it is desirable that statements should be recorded where reasons of urgency do not preclude this course." 17. J.) Although no irregularity is committed by the taking of notes for the preparation of the case diary instead of recording statements. it is desirable that statements should be recorded where reasons of urgency do not preclude this course." 17. It appears that trial Judge has been impressed by the fact that informant belongs to a weaker section of society and they have abandoned this village now, however, he overlooked the evidence on record which shows that according to Ranvir Singh. P. W. 2, police out post was at hand and even the police-constables had reached there. It is not possible to believe that the police constables did not take any action in the matter and this occurrence continued till dawn and even Rampal could not be set at liberty up to that time. P.W. 3 Smt. Shanti Devi also faltered about the manner in which the report was lodged. She is an illiterate lady. A look at her cross-examination simply shows that she was not definite as to whether she was the author of the report or her husband was the author of that report. It adds cogency to the suggestion of Nankoo Singh that he has been involved in a case on account of ill-will with Bhikam Singh. 18. Thus the evidence when judged on the anvil of probabilities does not hold water, it is totally unsafe to accept such evidence to sustain the conviction. In the result the appeal is allowed. The conviction and sentences of appellants under the said counts are set aside and they are acquitted of the various charges levelled against them. They need not surrender to their bonds. Fine, if already deposited by any appellant, sh be refunded to him.