Judgment : J.P. Semwal 1. THE accused appellants Nankai and his brother Pahari since deceased have filed this appeal against the judgment and order dated 27-11-1979 passed by the 4th Additional Sessions Judge, Shahjahanpur convicting both the accused appellants under section 376, read with section 511 IPC and sentencing each of them to 4 years' R.I. 2. THE prosecution case in brief is that the accused appellants committed rape on Km. Meera on 11-2-1978 at about 5.30 p.m. in the Arhar field in village Paina Khurd, P. S. Sindhauli, District Shahjahanpur. According to the prosecution allegations, Km. Meera PW 2 aged about 14 years is daughter of Pusye and she was living with her father in village Paina Khurd at the relevant time. On 11-2-1978, she had gone to bring fodder from the fields situated in the south of village at a distance of 4-5 furlongs near 'Arhat' field belonging to the resident of village Chinaur. At about 5.30 p.m. Km. Meera was returning with fodder and when she reached near the Arhar field, the accused Nankai and Pahari were standing there. They both caught hold Km. Meera and gagged her mouth with a part of her Dhoti and took her to the Arhar field where they committed rape on Km. Meera. After the rape was committed, Km. Meera was released. She raised alarm which brought to the place of occurrence, witnesses, Chhotey Lal, Mathura Lal Jatav, Ram Lal Kori and Nathhu. On the alarm of witnesses, the accused ran away towards south. Kumari Meera, narrated about the incident to the witnesses who brought Km. Meera to her house. The accused had threatened Km. Meera not to tell about the incident to her family members or the villagers. Km. Meena, narrated about the incident to her mother. Her father was not present at that time and when he came, he was also told about the incident by Km. Meera. Pusye PW 4 father of Km. Meera, brought her to Shahjahanpur on the same day and got her medically examined in the district hospital Shahajhanpur. Dr. Sudhir Singh PW 1 was medical officer of the said district Hospital and he examined Km. Meera on 11-2-1978 at 8.15 P.M. and found the following injuries on her person vide injury report Ex. ka 1. 1. Multiple abrasions on right parotid region in an area of 4 cm x 4 cm. 2. Dr. Sudhir Singh PW 1 was medical officer of the said district Hospital and he examined Km. Meera on 11-2-1978 at 8.15 P.M. and found the following injuries on her person vide injury report Ex. ka 1. 1. Multiple abrasions on right parotid region in an area of 4 cm x 4 cm. 2. Multiple abrasions in extensor aspect of left-fore-arm lower half in an area of 8 cm, x .5cm. 3. Abrasion on lateral aspect of right knee 1 cm x .7cm. All the injuries were simple and fresh at the time of medical examination. In the opinion of the doctor, these injuries could have been caused by friction against some hard object. 3. PUSYE PW 14 had not gone to lodge report at police station Sindhauli due to fear. On next date i.e. 12-2-1978, PUSYE PW 4 got an application Ex ka 2 scribed and submitted it to the District Magistrate, Shahjahanpur, narrating the occurrence. The District Magistrate directed the Inspector of Police Station Sadar Bazar to register a case whereupon PUSYE submitted this application at the said police station on 12-2-1978 at 3.20 p.m. and a first information report vide Ex ka 4 was prepared at the aforesaid police station and a case was entered at SI. no. 24 of the G.D. vide Ex ka 5. Since the - occurrence related to P. S. Sindhauli hence, information was sent along with necessary papers to the Police .Station Sindhauli. On receipt of the first information report and other papers from P. S. Sadar Bazar on 12-2-1978, a case was registered at SI. No. 21 of the G.D., vide Ex ka 3 at P. S. Sindhauli. The investigation of the case was entrusted to 4. I. Bheem Singh PW 5. He started investigation and visited the village and recorded the statement of Pusye, inspected the spot and prepared site plan Ex ka 6. He also recorded the statement of Km. Meera, Naththu and other witnesses -and made a search of the accused who were not found. On the next date i.e. 13-2-1978, he arrested the accused Nankai. The accused Pahari surrendered himself in the court. After completing the investigation, the Investigating Officer submitted the charge-sheet against both the accused persons on 24-3-1978, vide Ex ka 7, under sections 376/511 IPC. 5. The prosecution in support of its case, examined in all 5 witnesses, out of which two witnesses Km. The accused Pahari surrendered himself in the court. After completing the investigation, the Investigating Officer submitted the charge-sheet against both the accused persons on 24-3-1978, vide Ex ka 7, under sections 376/511 IPC. 5. The prosecution in support of its case, examined in all 5 witnesses, out of which two witnesses Km. Meera PW 2 and Nathu Lal PW 3 are witnesses of fact. Km. Meera is the victim of the occurrence while Nathu Lal PW 3 is the witness who had heard cries of Km. Meera and had seen the accused persons coming out from the Arhar field and going towards south. Km. Meera narrated about the occurrence to him after she came out of the Arhar field. Pusye PW 4 is the father of Km. Meera prosecutrix who had lodged the report SI Bheem Singh PW 5 is the investigating officer who after completing the investigation submitted charge sheet. Both the accused denied the charges levelled against them and pleaded that they have been falsely implicated in this case due to enmity. According to them, Nande brother of Pusye was beaten by one Gayadeen and father of, these accused had appeared as witness from the side of Gayadeen and on account of this enmity, Pusye had falsely implicated them. No defence was adduced. I have heard Shri Kamleshwar Singh on behalf of the accused appellant and also learned A.G.A. in opposition and have perused the evidence and material on record. 5. THE learned counsel for the appellants, has challenged the finding of the trial court on the ground that the lower court has given its finding on surmises and conjectures regarding the offence under section 376/511 IPC though the trial court disbelieved the prosecution story about the offence under section 376 IPC. 6. THE learned counsel further urged that the trial court had virtually disbelieved the complete version of the prosecutrix Km. Meera PW 1 who had given graphic statement regarding the manner in which the occurrence had taken place and had erred in convicting the accused for the offence different from that with which, it had come to the court and also different from that which the prosecution witnesses deposed in the court. Meera PW 1 who had given graphic statement regarding the manner in which the occurrence had taken place and had erred in convicting the accused for the offence different from that with which, it had come to the court and also different from that which the prosecution witnesses deposed in the court. The learned counsel cited Ugar Ahir v. The State of Bihar, AIR 1965 SC 277 wherein it has been held in para 6 that; "The maxim falsus in uno, falsus in omnibus (false in one thing, false in every thing) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitious metaphor, separate the graia from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts or the evidence and reconstruct a story on its own out of the rest." 7. LEARNED AGA, in opposition urged that there was no occasion for concocting false case against the accused persons in respect of offence which damages the honour and reputation of the family. 8. WE have to scrutinise the evidence in this case in order to find out whether her prosecution has established the case beyond reasonable doubt. Merely because the alleged offence is of rape does not by itself indicate that it might be a true case. The case has to be tested on the anvil of reliability and probability. The Learned trial court has clearly mentioned that the most convincing evidence about the rape is missing and therefore, in its opinion the offence of rape on this evidence cannot be said to have been proved. The learned trial court, however has opined that offence under Section 376/511 IPC has been made out. In the offence "of rape medical examination report of the prosecutrix is very material. In the present case, Pusye PW 4 had taken his daughter Km. Meera PW 2, for her medical examination to Shahjahanpur on the same day and got her injuries examined at district hospital Shanjahanpur. Dr. Sudhir Singh Medical Officer of the district hospital concerned examined the injuries; of Km. In the present case, Pusye PW 4 had taken his daughter Km. Meera PW 2, for her medical examination to Shahjahanpur on the same day and got her injuries examined at district hospital Shanjahanpur. Dr. Sudhir Singh Medical Officer of the district hospital concerned examined the injuries; of Km. Meera on 11-2-1978 at 8 45 p. m. and found; multiple abrasions on right parotid region; multiple abrasions in extensor aspect of left fore arm lower half; and abrasion on lateral aspect of right knee. These injuries according to the Doctor, Sudhir Singh were simple and were caused by friction against some hard object. He, however, did not examine the private parts of the prosecutrix. He categorically deposed that if any rape case comes to him he refers it to Dufferin hospital. In his cross examination, he categorically deposed that at the time of medical examination Pusye father of the girl had not told him that the girl had been raped nor the girl had told him. 9. THE prosecutrix. Km. Meera PW 2 has also confirmed that she had not shown her private part to the doctor concerned. In her cross examination, she however, asserted that she had told the doctor that she had been raped. She further asserted that her father also told doctor in that regard. This contradiction in the present case is material one and assumes much importance to scrutinise the reliability of the prosecutrix PW 2 and her father Pusye PW 5 regarding the prosecution story. The question thus arises that in case rape had been committed on Km. Meera and her father had taken her to doctor for medical examination why her private parts were not got examined in the women hospital and the prosecutrix as well as her father did not disclose to Dr. Sudhir Singh about rape having been committed on the girl. This certainly casts doubt on the veracity of the prosecution story as set up. 10. IT is a cardinal principle of law that in every criminal case the, prosecution has to prove its case beyond reasonable doubt unless the law requires the accused to prove any fact pleaded by him in defence. The prosecution stands and falls on its own case. No doubt, reasoning of lower court, could have been accepted that the mere fact Km. The prosecution stands and falls on its own case. No doubt, reasoning of lower court, could have been accepted that the mere fact Km. Meera was not medically examined by the lady doctor does not mean that her statement is not true. The present case is not of the type where the report of the occurrence was lodged without medical examination of the girl. In the instant case, father had purposely taken the girl to the Govt. Hospital for medical examination but the doctor was not told about the incident of rape on Km. Meera nor her private parts was medically examined by Dr. Sudhir Singh or by other lady doctor. 11. THE only evidence in this case is of prosecutrix Km. Meera PW 2, Nathu Lal PW 3 and Pusye PW 4. Pusye PW 4 is not an eye witness and he is father of the victim of the occurence who had taken her to the hospital on the same day and had moved an application to the District Magistrate Shahjahanpur on 12-2-1978, instead of lodging any report at Kotwali Shahjahanpur or at P.S.Sindhauli. He however, gave evidence that Km. Meera had told him that she had been ravished by the accused persons. There is, however, discrepancy in this regard in the evidence of this witness and Km Meera PW2. Km. Meera PW 2 deposed in her examination-in-chief that after the occurrence, she narrated the incident to the witnesses who brought her to her house. In her house she narrated the incident to her mother. "Her father was not in the house at that time. When her father came then her mother narrated the incident to her father it would thus appear that the prosecutrix had not narrated to her father Pusye about the occurrence. Her mother has not been examined. Thus, the testimony of Pusye PW 4 regarding the occurrence is of no help to the pro-section. The aforesaid infirmity by itself would not have been very material but it has to be considered in the context of over all circumstances and evidence. Even minor contradictions and slender improbabilities would be of much consequence in the present case. 12. THE main witness is Km. Meera who is said to be victim of the occurrence. The aforesaid infirmity by itself would not have been very material but it has to be considered in the context of over all circumstances and evidence. Even minor contradictions and slender improbabilities would be of much consequence in the present case. 12. THE main witness is Km. Meera who is said to be victim of the occurrence. She deposed that she had gone to bring fodder from the field on the date of occurrence and while she was returning with fodder and reached near the Arhar field belonging to some persons of village Chinar at about 5.30 p.m. both the accused Nankai and Pahari met her and they threw away fodder which she was bringing and caught hold of her and gagged her mouth with a portion of her Dhoti and took her in the Arhar field. They then felled her and committed rape on her one by one. The accused Pahari caught hold of her hands and the accused Nankai committed rape on her and thereafter Nanki caught hold of her hands and Pahari committed rape. She further deposed that she tried to free herself and received injuries. After the rape was committed, the accused freed her and she raised alarm. On the alarm raised by her Bhola, Chhote, Nathu, Mathuri reached there and the accused fled towards south. Then she narrated about the incident to the witnesses who took her to her house. In her cross examination, she deposed that there was bleeding after rape which stained her Dhoti. 'She further stated that the said blood stained Dhoti was washed in the morning. In para 6 of her statement she stated that the accused had committed rape with her for one hour and that after the rape she got up and took out Dhoti portion from her mouth and came out of the field. It was after she had come out of the Arhar field she raised alarm which attracted the witnesses. Out of the witnesses, who are alleged to have corse to the place of occurrence only Nathu Lal PW 3 has been examined, who claims to have gone to take fodder for his animals at that time. According to him, he was on way when he heard cries of the girl. In his cross examination, he categorically deposed that girl was crying inside the field "Hai Bachao Bachao" and then this witness rushed towards that place. According to him, he was on way when he heard cries of the girl. In his cross examination, he categorically deposed that girl was crying inside the field "Hai Bachao Bachao" and then this witness rushed towards that place. The other witnesses rushed thereafter. This witness also did not go inside the field. He claims to have seen the accused coming out of Arhar field and the girl was weeping inside. He also stated that the girl had told him that the accused had felled her and then inserted cloth in her mouth and then committed rape. He stated that the girl had not shown the blood stained clothes to him. This is in contradiction of statement of Km. Meera who asserted that the witnesses had seen her blood stained Dhoti at the spot. Nathu Lal PW 3 stated that the girl had shown blood stained Dhoti and 'Shaya' after reaching her house and that they had told to retain the said clothes. The above discussion of the evidence of Km. Meera and Nathu Lal PW 3 clearly goes to show that the prosecution story as set up is not at all credible and trust-worthy. No implicit reliance can be placed on the testimony of the prosecutrix Km. Meera. Her evidence does not find corroboration in material particulars. Totality of the circumstances appearing on the record of the case discloses that the prosecution story is not at all trust-worthy regarding the alleged offence and the complicity of the accused persons. 13. NO reliance can be placed on the testimony of Nathulal. In fact, Nathu Lal PW 3 does not appear to have any occasion at that time to be present at the place of occurrence. It was the month of February and the time was 5.30 p.m. It could be a time for coming after bringing fodder but not for going to bring fodder. I thus do not find Nathu Lal PW 3 to be a trustworthy and truthful witness and his presence is doubtful at that time. 14. The sole testimony remains of Km. Meera who has given details of the manner of the occurrence but had not narrated the same to the doctor, where she had been taken for medical examination. No doubt the presence of injuries on the person of Km. Meera, cannot be doubted in view of the testimony of Dr. 14. The sole testimony remains of Km. Meera who has given details of the manner of the occurrence but had not narrated the same to the doctor, where she had been taken for medical examination. No doubt the presence of injuries on the person of Km. Meera, cannot be doubted in view of the testimony of Dr. Sudhir Singh who is an independent witness. That however, by itself does not prove that the accused had committed rape or had attempted to commit rape on Km. Meera as alleged by the prosecution. In fact, the place of occurrence itself appears to be doubtful because the fodder which Km. Meera was bringing at the relevant time was not shown to nor found by the Investigating Officer during his visit to the spot. Nathu Lal PW 3 deposed that he could not see whether fodder was lying there or not and he had not seen it. The girl had also not lifted fodder. This also casts doubt on the prosecution story. Lastly it was argued that the first information report was belated and it was not dodged at police station Sidhauli within the jurisdiction of which the occurrence had taken place nor at police station Sadar Bazar Shahjahanpur promptly. The prosecution has tried to show that the reason in not lodging the report at police station was that the accused persons had threatened the prosecutrix Km. Meera and, therefore, it was not lodged at police station concerned. This does not seem convincing. In the first information report it is stated that the accused had threatened Km. Meera not to tell about the occurrence to her family members or to the villagers. The evidence, however, has been led to show that Km. Meera had immediately after the occurrence narrated about the occurrence to Nathu Lal PW 4 and other witnesses and had also narrated about it to her parents. If this threat was really effective and genuine, then Km. Meera could not have courage to tell the witnesses about the occurrence immediately after she came out of Arhar field. This theory also does not find support from the testimony of Km. Meera and her father Pusye PW 4. In her cross examination, Km. Meera stated that when her father was taking her to police station, the accused threatened that if they went to police station they would be killed. This theory also does not find support from the testimony of Km. Meera and her father Pusye PW 4. In her cross examination, Km. Meera stated that when her father was taking her to police station, the accused threatened that if they went to police station they would be killed. Then her father took her to Shahjahanpur Pusye PW 4 also stated that the accused threatened that if they proceeded towards Sidhauli they would be murdered. In his cross examination, he stated that he took her daughter to Shahjahanpur on bicycle, then the accused did not stop him nor he met the accused persons after his daughter came to house after occurrence. This, thus, clearly shows that allegation about threat having been advanced by the accused is false. It may also be noted that even then Pusye PW 4 had gone to Shahjahanpur he did not lodge report at Shahjahanpur before going to Govt., hospital. 15. THE very fact that the report of the occurrence was not lodged immediately at police station Sidhauli or at Kotwali Shahjahanpur and the private parts of Km. Meera were not medically examined nor the incident of rape with Km. Meera was narrated to the doctor, create doubt regarding veracity of the prosecution story, It appears that on 11-2-1978, when Km. Meera was medically examined there was no material for lodging report regarding the rape against the accused persons. It was only on the next day i.e. 12-2-1978. Pusye moved an application before the District Magistrate Shahjahanpur after deliberations and consultations. It has come in the statement of Km. Meera that her father had gone to Kutehehry. The aforesaid discussion and the scrutiny of the evidence of the prosecution witnesses go to show serious infirmities and improbabilities in the prosecution story. The witnesses produced by the prosecution are not truthful witnesses and their testimony does not inspire any confidence. The lower court has misdirected itself and has placed reliability on the testimony of the witnesses inspite of serious infirmities occurring in the evidence of the prosecution. 16. THE defence plea that due to enmity the accused persons have been implicated, cannot be ruled out on the facts and circumstances of the case. The lower court has misdirected itself and has placed reliability on the testimony of the witnesses inspite of serious infirmities occurring in the evidence of the prosecution. 16. THE defence plea that due to enmity the accused persons have been implicated, cannot be ruled out on the facts and circumstances of the case. It has been remarked by a mediaeval jurist "the devi himself knoweth not, thoughts of men." It is carnal principle of Criminal Jurisprudence that the prosecution has to prove its case to the hilt and beyond reasonable doubt. It has to stand on its own leg and cannot take advantage of the weakness of the defence. The burden of proving the guilt of the accused is on the prosecution. The accused is not bound to say anything in defence. The prosecution has to prove the guilt of the accused beyond reasonable doubt. The testimony of prosecutrix and the eye witnesses does not inspire any confidence. There are inconsistency and material contradiction which cannot be easily brushed aside. The prosecution story bristles with improbabilities. The courts have to rely mere on human probabilities that on assertions of witnesses, as has been held by the Supreme Court in case of Vidya Singh v. State of M. P., 1971 CAR 296 = AIR 1971 SC 1857 . 17. THE prosecution story that both the real brothers committed rape on the prosecutrix for one hour one by one after gagging her mouth and holding her hands perse appears to be improbable, and it has not been proved by the prosecution. The substratum of the prosecution case has been disbelieved by the trial court but by strained reasoning it has convicted and sentenced the accused which cannot be sustained. Even the most gullible would refuse to believe the prosecution story. Though in the present times, there has been erosion of moral values, but not to the level that both the real brothers would commit rape on a girl particularly in the rural areas. It may also be noted that where two views are possible on the evidence, one pointing to the guilt of the accused and other to his innocence, the later view which is favourable to the accused has to be accepted. At any rate, a reasonable doubt is entertained on the evidence of the prosecution regarding the complicity of the accused persons. 18. At any rate, a reasonable doubt is entertained on the evidence of the prosecution regarding the complicity of the accused persons. 18. I, therefore, come to the conclusion that the prosecution has failed to establish its case to the hilt and beyond reasonable doubt against the accused persons. The accused Pahari is reported to have died about 6 months before, as per report of the Chief Judicial Magistrate, Shahjaliaapur, dated 28-7-1992. The appeal as against accused Pahari, stands abated. In the result, the appeal succeeds and is allowed. The judgment and order dated 27-11-1979 convicting the accused appellant Nankai and sentencing him to 4 years RI, under section 376/511, is hereby set aside. The accused Nankai is on bail. He need not surrender and his bail bonds are discharged. Appeal allowed.