JUDGMENT 1. -The prosecution case, as put forth against the petitioner-appellants, was as under: 2. On May 20, 1980 at about 6.30 A.M. at village Malarua Doongar PW 6 Smt. Shanti, teen-aged wife of PW 4 Sheo Narain Mali was carrying breakfast for her father-in-law PW 7 Bajrang, who was on the well in the jungle. When she reached the dilapidated farm-house, about 1/2kilometer away from the abadi of the village, the three appellants appeared on the scene, wrongfully restrained her from proceeding in the direction of her father-in-law's well, caught-hold of her, confined her to a room without doors and roof and committed rape on her, one by one. The cries raised by PW 6 Smt. Shanti attracted PW 1 Nawal Kishore, a teacher in a primary school, who was returning after having washed himself of the natural call in the morning. On a protest made by him Nawal Kishore was also beaten by the appellants. PW 6 Smt. Shanti returned to the village and narrated the incident to her husband PW Sheo Narain who took her to the police station Malarna & lodged the FIR Ex.P 13 at 7.30 A.M. PW 8 Hargovind Singh, Station House Officer, Police Station Malarna registered a case under section 376 IPC vide Ex.P 14 and commenced investigation. 3. PW 8 Hargovind Singh SHO lost no time and took PW 6 Smt. Shanti, in a hand driven cart to the place of occurrence where all the three appellants were found busy in preparing "gara" (mud-mixture). PW 6 Shanti identified them as per rapists. PW 8 Hargovind Singh SHO, therefore, prepared the identification memo Ex.P 15, and arrested all the three appellants at 9.30 A.M. vide arrest memos Ex.P 16 to Ex.P 18. The SHO then inspected the place of occurrence inside the door-less and roofless room at the farm-house and found four loaves of bread, lied in a cloth, five hair-clips, a pair of plastic chappals lying scattered there. A torn baniyan piece was also found lying in that room. Hargovind Singh SHO seized all the aforesaid articles in presence of PW 2 Mool Chand vide memos Ex.P. 2, Ex.P 3. A site map. Ex.P. 1, was also prepared. Buniyad @ Bundoo appellant was found wearing a torn baniyan. His baniyan was also seized vide Ex.P 19. PW 6 Smt. Shanti's torn brassiere was also seen. Her brassiere was also allegedly seized. 4. A site map. Ex.P. 1, was also prepared. Buniyad @ Bundoo appellant was found wearing a torn baniyan. His baniyan was also seized vide Ex.P 19. PW 6 Smt. Shanti's torn brassiere was also seen. Her brassiere was also allegedly seized. 4. PW 8 Hargovind SHO forwarded both the injured , viz. PW 1 Nawal Kishore and PW 6 Smt. Shanti and all the three arrested persons, the present appellants to the Govt. Hospital at Malarna for medical examination. At the said hospital PW 5 Dr. Rajendra Singh Sisodia. Medical Officer, first examined PW 1 Nawal Kishore at 10.00 A.M. and noted the following injuries on his person : 1. Abrasion (fresh blood on surface) 1" x 1" on back of right elbow. 2. Abrasion (fresh blood on surface) 1/4" x 1/4" on middle of outer border of right foot (on dorsal side). 3. Contusions (red coloured) 2" x 11 on upper 1/4th of right fore-arm posteriorly transversely placed. All the three injures were opined to have been caused with some blunt weapon within six hours approximately and were simple in nature (Ex.P 12). 5. PW 5 Dr. Sisodia examined PW 6 Smt. Shanti (17) at 11.00 A.M. and noted that she was a well built and averagely nourished lady with fully developed breasts and black coloured aureoles which were having red coloured swelling all around. With tenderness on right breast her gait was difficult and painful and she complained of difficulty & pain in deglutition and micturition and was having swelling of the inner aspect of middle of lower lip. She was found having the following injuries on her person:- 1. Scratches of finger nails present on both sides of the neck. 2. Scratches of finger nails present on inner aspect of right thigh. 3. Abrasion 2" x 1" on middle of left buttock transverse placed. 4. Contusion 21/2" X 1" (red coloured) on middle of back transversely placed. 6. She was found having the following injuries on her person:- 1. Scratches of finger nails present on both sides of the neck. 2. Scratches of finger nails present on inner aspect of right thigh. 3. Abrasion 2" x 1" on middle of left buttock transverse placed. 4. Contusion 21/2" X 1" (red coloured) on middle of back transversely placed. 6. On local examination of her private parts, no marks of injury were seen on Mons Pubis, right sided pubic hair were noticed matted with some sticky substance & those were cut for chemical examination, scratches were found present on inner aspect of right thigh, though no marks of injury were noticed on her vulva which was though tender and inflamed but swelling was noticed on labia minora, hymen membranes were absent but vaginal walls were contused, abraised and tender and a seminal fluid like discharge was present, vagina permitted entry of index finger with difficulty and painful feeling to the victim. On examination of the clothes Dr. Sisodia noticed suspicious seminal stains on Smt. Shanti's red coloured petticot (ghaghra). Dr. Sisodia seized the petticoat, prepared vaginal smears on slides for being sent to the Chief Chemical Examiner, Jaipur to detect the presence of spermatozoa in the suspicious stains & discharge vide Ex.P 4. 7. Dr. Sisodia examined all the three appellants between 12.00 Noon and 1.45 P.M. on 20.5.80. He found all the three having well developed, circumcised male organs with cleared glans. The common features noticed on their persons and clothes were that Buniyad appellant was having scratches at the root of his penis, Laique appellant scratches of finger nails over mons pubis and Abid appellant scratches on inner aspect of left thigh. The knickers of all the three were having semen like suspicious stains over them. Dr. Sisodia, therefore, prepared three urethral smears on glass slides and seized the knickers of the appellants (vide Ex.P 7, Ex.P 8, Ex.P. 9). Dr. Sisodia thus prepared four sealed packages, three of them containing the seized knickers of the three appellants and the fourth containing the red coloured petticoat of PW 6 Smt. Shanti. Simultaneously, he prepared four sealed packets, three containing urethral smears obtained from each of the appellants and the fourth having two glass slides of vaginal smear. Dr. Sisodia thus prepared four sealed packages, three of them containing the seized knickers of the three appellants and the fourth containing the red coloured petticoat of PW 6 Smt. Shanti. Simultaneously, he prepared four sealed packets, three containing urethral smears obtained from each of the appellants and the fourth having two glass slides of vaginal smear. He addressed a letter (Ex.P 10) to the Chief Chemical Examiner Rajasthan, Jaipur giving the specimen marks of the seal used by him in sealing the above mentioned four packages & four packets and one empty penicillin injection vial wherein the cut off pubic hair of Smt. Shanti had been preserved. He forwarded the medical examination reports of Smt. Shanti and all the three appellants, his letter Ex.P 10, an authority letter to the Chief Chemical Examiner authorising him to open the sealed packages & packets and consent letter of Smt. Shanti for her examination, to the SHO PS Malarna Doongar (vide Ex.P 11). 8. On his examination of Smt. Shanti Dr. Sisodia opined that act of rape had been committed on her. All the three appellants were opined to be physically fit and potent to do the act of sexual intercourse. 9. On 23.5.80 the SHO handed over 10 packets in all to PW 3 Karan Singh, F.C. to be delivered at the State Forensic Science Laboratory Rajasthan, Jaipur (F.S.L.). The F.S.L., however, refused to take the delivery of such packets as the seal of the hospital, put on the packets at the hospital, was not clear. However, the reports from the F.S.L. Ex.R 5 and Ex.P. 6, show that the eleven sealed packets were received at the FSL on 27.5.80 and on analysis of the contents thereof semen was detected on petticoat, vaginal smear & pubic hair belonging to Smt. Shanti & knickers of the appellants (Ex.R 6). No semen was' detected on/in the piece of Baniyan, the Baniyan, and the urethral smears obtained from each of the appellants. The other report Ex.R 5 shows that one sealed packet containing, one piece of dirty white cloth, a dirty white cloth Baniyan (torn), petticoat and three knickers were received at the F.S.L. at Jaipur on 23.7.80. No semen was' detected on/in the piece of Baniyan, the Baniyan, and the urethral smears obtained from each of the appellants. The other report Ex.R 5 shows that one sealed packet containing, one piece of dirty white cloth, a dirty white cloth Baniyan (torn), petticoat and three knickers were received at the F.S.L. at Jaipur on 23.7.80. On examination it was found that the cloth piece & the torn Baniyan were similar in respect to their fibbers, threads, working pattern, design and other physical characteristics and thus formed the complementary parts of each other. 10. After completing the investigation in the manner stated above, the police submitted a report under section 170/173 Cr.PC. on 3.6.80 in the Court of Addl. Chief Judicial Magistrate, Sawai Madhopur against the present appellants. The learned Magistrate committed the case to the Court of Sessions Judge on 11.6.80 and the learned Sessions Judge framed charges for offences under section 323, 342 & 346 IPC against them on 29.8.80 and on their pleading not guilty to such charges tried them according to law & convicted and sentenced them to Rl for 4 years & fine of Rs. 1000/- each under section 376, six months Rl & fine of Rs. 500/- each under section 342 and three months Rl & Rs. 200/- each under section 323 IPC.The common plea taken by the appellants in their defence was that they all were married and that they had been falsely implicated in the case due to enmity in the election. In support of such plea DW 1 Prabhoo Lal & DW 2 Shafi Khan were examined. 11. Mr. 200/- each under section 323 IPC.The common plea taken by the appellants in their defence was that they all were married and that they had been falsely implicated in the case due to enmity in the election. In support of such plea DW 1 Prabhoo Lal & DW 2 Shafi Khan were examined. 11. Mr. K.N. Srimal, the learned counsel for the appellants urged that it was not doubt true that the cases of sexual assaults on girls & woman are required to be viewed at with all sensitively & should not be lightly rejected on supposed of imaginary improbabilities & inconsistencies as no girl or woman and, for that matter, the male-members of her family would make a false accusation against a person for such an offence which damages the reputation of not only the concerned girl or woman but also the entire family but instances of false accusations are not lacking in the country particularly when the country-men are in the grip of politically surcharged atmosphere and caste, creed and communal forces & feelings, brought about by bad politics, take over the majority of the illiterate or semi literate masses to earn political mileage. Therefore, when an offence of sexual assault on a woman is alleged to have been committed during such surcharged atmosphere and evidence in that behalf is also brought on record of the case, not only the statement of the alleged ravished lady but also the probabilities of the commission of the very offence should be critically & closely scrutinised by courts in order to eliminate all reasonable possibilities of false prosecutions. Mr. Shrimal submitted that on close scrutiny of the direct circumstantial and medical evidence in the present case it would be revealed upon this court that the present case is a glaring instance of fabrication and false implication. Mr. Shrimal took me through the entire evidence on record and highlighted the circumstances, inherent improbabilities, unnatural inconsistencies in the statement of the witnesses which according to the learned counsel, loudly speak of the false character of the prosecution case. In support of his arguments Mr. Shrimal referred to the principles governing the appreciation of evidence in such cases as laid down in the cases of Krishna Kakar v. Emperor AIR 1940 Calcutta 182, Krishniali v. Mysore Govt. In support of his arguments Mr. Shrimal referred to the principles governing the appreciation of evidence in such cases as laid down in the cases of Krishna Kakar v. Emperor AIR 1940 Calcutta 182, Krishniali v. Mysore Govt. (FB) AIR 1950 Mysore 44 , Raisal v. State of U P AIR 1977 SC 1822 , State (Delhi Administration) v. V.C. Shukhla AIR 1980 SC 1382 , Mohan Lal v. State of Maharashtra AIR 1982 SC 839 , Ram Prasad v. State of Bihar AIR 1980 SC 83 , and Bhoop Ram v. State of U.P AIR 1989 SC 1329 . 12. In the course of his arguments Mr. Shrimal argued with much industry that identification of the appellants by Smt. Shanti while she was in the company of PW 8 Hargovind Singh was hit by Section 162 Cr.PC. and trial of Abid Ali appellant alongwith the other appellants was inherently bad in law & stood in vitiated because of that appellant being below 16 years of age at the time of commission of the alleged offence against Smt. Shanti.On the other hand Mrs. Sharda Pathak, the learned Public Prosecutor, argued with same vehemence that it was a fool proof case in as much that not only the report of the incident was lodged with the police with no loss of time but also the appellants were arrested, soon thereafter, from the place of occurrence itself and evidence of their committing rape was found on their persons & clothes besides the person and clothes of the ravished lady and some incriminating articles seized from the place of occurrence. The learned Public Prosecutor further submitted that this Court should not be unduly impressed by the vague and irrelevant argument that the accusation of heinous crime like rape was made in the politically surcharged atmosphere of the Vidhan Sabha Elections. She submitted that Elections provide no immunity to offenders to commit such crimes. The learned Public Prosecutor stressed that this court should take special note of the increasing number of sexual assaults on girls and women and should not lay too much stress on the supposed & imaginary improbabilities and natural inconsistencies in the statements of natural truthful & reliable witnesses. Mrs. The learned Public Prosecutor stressed that this court should take special note of the increasing number of sexual assaults on girls and women and should not lay too much stress on the supposed & imaginary improbabilities and natural inconsistencies in the statements of natural truthful & reliable witnesses. Mrs. Pathak further submitted that this Court should be alive to the fact that rape is a crime which is committed not only against the physical privacy of a woman but also against her soul leaving an indelible mark on her psyche and on the reputation of her family. The learned- Public Prosecutor forcefully urged for sustenance of the order of conviction & sentence of all the three appellants. 13. In view of the arguments advanced before me I made a very close and critical examination of the judgment of the learned trial judge and the evidence available on the record. After giving my thoughtful consideration to the entire facts and circumstances of the case I am left in no doubt at all that the present case is not such wherein any of the appellants may be held guilty without reasonable doubt. 14. Over the years the law on rape has undergone a sea-charge not only by the hands of the legislature but also by the approach of the judge to the cases of rape. Looking to the alarming increase in the cases of sexual assails in general and case of rape in particular against girls and women, the state our society is passing through, the changing socioeconomic conditions of the people, the expansion of the areas of ills and vices adversely affecting the age-old moral fabric of our men and women, the expanded opportunities for exhibition of sexual heroism and misadventures and the effects of the crime of rape on the body and soul of the victim, have all become relevant considerations in the appreciation of the evidence in cases of sexual assaults and rapes on girls and women. Such cases are, therefore, required to be dealt with greater responsibility and increased sensitively. It has to be remembered that a victim of rape is in the category of an injured person and not an accomplice. Such cases are, therefore, required to be dealt with greater responsibility and increased sensitively. It has to be remembered that a victim of rape is in the category of an injured person and not an accomplice. If in the facts and circumstances of a given case her sole- testimony can be believed & relied upon, there should not be any necessity for seeking corroboration before making her testimony the basis for the conviction of the rapist. This approach accords with the basic principle of our law of evidence which in Section 134 of the Evidence Act 1872 lays down that no particular number of witnesses shall, in any case, be required for the proof of any fact. Our Law of Evidence lays stress upon the quality rather than quantity of evidence. The worth & value of the evidence and not the number of witnesses & volume of evidence should dictate the decisions of the courts. In this behalf our law of evidence materially differs from some English enactments which insist upon a particular number of witnesses to prove some specified offences. 15. But, as is well known, witnesses may tell a lie but the circumstances shall not, every case is required to be decided on its own facts after taking factors including the setting of facts, the behavioural pattern of the parties concerned, their prior and subsequent conduct, their habits and the life they are given to, naturally attending on the commission of the alleged offence. It is in the totality of all the attending circumstances that a criminal case is required to be decided on its own merits. 16. Now coming to the merits of the present case I find that the alleged ravished lady, PW 6 Smt. Shanti is a teen-aged married lady, issue-less at the time of the alleged sexual assault on her. She belongs to an agriculturist family and therefore, it may not be abnormal on her part to be carrying the breakfast for her father- in-law PW 7 Bajrang, who was allegedly there at the well in the fields. The appellants are young boys and men and all were sexually potent to do sex act with a lady. The parties come from a town Malarna & whereas the ravished lady came from an agriculturist family the appellants belonged to labour class earning their livelihood by doing manual labour for others. The appellants are young boys and men and all were sexually potent to do sex act with a lady. The parties come from a town Malarna & whereas the ravished lady came from an agriculturist family the appellants belonged to labour class earning their livelihood by doing manual labour for others. The offence is alleged to have been committed at about 1/2kilometer away from the village abadi in a dilapidated door-less and roofless room. Such a place could be appropriate place for committing such an offence by three young men against a lone young lady. These are the natural facts and circumstances attending on the commission of the offence of rape against PW 6 Smt. Shanti by the three appellants, which may probabilism the commission of the said offence against her. But whereas these facts and circumstances may probabilism the commission of rape on Smt. Shanti by the appellants, the new question for adjudication is whether the evidence brought on the record of the case and the prior and subsequent conduct of the parties herein turn the "may" into "must" in the present case. Let us examine. 17. PW 1 Nawal Kishore and PW 6 Smt. Shanti are the two star witnesses of the prosecution in this case, of whom one is the victim of the crime and the other has represented himself as an eye-witness to the commission of crime by the appellants against the victim. Let us examine. 17. PW 1 Nawal Kishore and PW 6 Smt. Shanti are the two star witnesses of the prosecution in this case, of whom one is the victim of the crime and the other has represented himself as an eye-witness to the commission of crime by the appellants against the victim. In so far as PW 1 Nawal Kishore is concerned, in his statement before the court he has stated that it was at about 5.30 A.M. in the morning that he had gone to ease himself, that when he happened to pass by the farm-house he heard some shrieks which he could not judge as to whether that was the shriek of some men or women, that he went to the room wherefrom the shriek had come, that he went to the room and on peeping through a window he saw Buniyad appellant busy in sex act with Smt. Shanti and Laique appellant shutting her mouth with hand in order to check & suppress her shrieks, that he asked the two appellants not to do such an act with the girl, that the appellants obeyed him and left the girl and went away, that Smt. Shanti then rose up and paying regards to him by saying "Namestey" thanked him for saving her life, that he asked the girl to go away & she left the place, that thereafter the two appellants tried to catch hold of him but he jumped out from the window, that Buniyad appellant did not chase him but Laique appellant did, that Laique appellant caught hold of him and beat him with fists but later on released him on his request, that he came back to his house and told Ram Narayan that a woman of his caste had been raped & that if he wanted to institute a case he was prepared to be a witness in the case and that he got himself medically examined for his injuries. In cross-examination he stated that he did neither know the name nor the caste of the ravished lady, that while he was returning to his house he met 4-5 'gawalas' on the road and on his enquiry they told him that she was a 'Malan'. In cross-examination he stated that he did neither know the name nor the caste of the ravished lady, that while he was returning to his house he met 4-5 'gawalas' on the road and on his enquiry they told him that she was a 'Malan'. He further stated that the place whereat he had eased himself was at a distance of 25-30 paces away from the place of occurrence but neither before easing himself nor while easing did he hear any noise from the farm-house, that when he was returning he had heard the shriek of the lady whereupon he went to the room wherein Smt, Shanti was being raped, that first he protested against the misconduct of the appellants against Smt. Shanti from the window but when they did not listen to him he entered the room and forbade them from doing the wrongful act & thereupon the two appellants had left her. On being further examined he stated that he did not remember if those were the days of Rajasthan Vidhan Elections, though he admitted that a camp for holding elections had been arranged in his school premises, he further admitted that a case with regard to rape committed on his own daughter was filed in court yet he pleaded ignorance of either the names of the accused in such case or the result thereof. He admitted that towards west of his house there was a hillock where people usually go to ease themselves and that in the east there was jungle too outside the abadi. In the end of cross-examination he admitted that in his police statement Ex.D 1 he had not stated as an eyewitness to the occurrence. In that statement he appears to have stated that on hearing the alarm being raised from the farm-house when he reached there he saw the appellants coming out of the room and running away & when he tried to catch hold of them Laique appellant beat him with fists. 18. In appreciating the testimony of this witness the learned trial judge has observed that this witness had highly exaggerated the facts and therefore he was not a reliable witness, but at the same time the learned judge believed the witness with regard to the injuries allegedly caused to him. 18. In appreciating the testimony of this witness the learned trial judge has observed that this witness had highly exaggerated the facts and therefore he was not a reliable witness, but at the same time the learned judge believed the witness with regard to the injuries allegedly caused to him. On reading the statement of a witness as a whole he may be held as a reliable witness or as an unreliable witness or as partly reliable and partly unreliable witness. If he is a witness of the first two categories there is no difficulty in either believing him or in rejecting his testimony. However, if he is a witness of the third category, his testimony on those facts in respect of which he is found trustworthy should not be, as a rule of precaution, believed & accepted without corroboration from some independent & reliable evidence. It is the rule of care and caution and of prudence that is required to be applied to the appreciation of the testimony of a partly reliable and partly unreliable witness. 19. Assuming that the alleged offence had actually been committed against Smt. Shanti by the appellants at the relevant time, date and place (an assumption which is found quite base-less on further examination of the relevant facts and circumstances of the case, the claim of PW 1 Nawal Kishore that he witnessed the occurrence or that he sustained injuries at the hands of the appellants is totally false & unbelievable. This witness is a primary School Teacher, has an easing place on the hillock on the west of his house and jungle on the east and therefore could have hardly had good reasons to go to ease himself on another side. Assuming that he could have opted to go to the side of the farm house and that an incident of the nature as alleged by the prosecution had in fact taken place with Smt. Shanti and that the witness was in the vicinity of the farm house while easing himself there could have been no reason or his not having heard the alarm of Smt. Shanti which she would naturally raise when the appellant had allegedly caught hold of her on her way & had forcibly taken to the room inside the farm house. Then his version that on going to the window of the room when the saw Buniyad committing rape on Smt. Shanti and Laique appellant shutting her mouth and asked them not to do such an act and the two appellants unhesitatingly obeyed his orders or request and went away after leaving Shanti and Shanti paid regards to him and thanked him for saving her life, exposes the unnaturality & absurdity not only in his own conduct & behaviour but also of the appellants who are stated to be perpetrators of such a heinous crime and of Smt. Shanti, a helpless victim of such crime. If that were so and the appellant had behaved in that way there was no reason for them to have, therefore, caught hold of him and assailed him. Had he received the regards and thanks from Smt. Shanti in the room it would have been natural of him to have enquired of her as to who she was and the witness would have not taken the trouble of finding 4 or 5 gawalas on the road at daybreak. His statement to Ram Narayan that a woman of their caste had been raped & that if he wanted to file a case then he would support such a case exhibits the very mentality of this witness of spreading ill-will, hatred and poison amongst the members of different caste, creed or class residing in the same locality. It is sad & painful to further comment upon the testimony of PW 1 Nawal Kishore & it should suffice to conclude that he is totally a false & cooked-up witness and his testimony is of no value to either support his own injuries or these alleged to have been caused to Smt. Shanti by the act of the appellant. 20. Now coming to the testimony of another star witness of the prosecution PW 6 Smt. Shanti it is noted that she is a young married lady of about 20 years. 20. Now coming to the testimony of another star witness of the prosecution PW 6 Smt. Shanti it is noted that she is a young married lady of about 20 years. She has stated that at about 7.00 A.M. when she was carrying the breakfast for her father-in-law & happened to pass by the farm house the appellants caught hold of her and took her to the roofless room and all the three committed rape on her one by one, that on hearing her shrieks (PW 1 Nawal Kishore) a master reached there and rescued her on receiving beating to him from the appellants. She further stated that after the incident she proceeded in the direction of her well but her father-in-law met her on the way & she narrated the incident to him. She further stated that she lodged the report of the incident at the police station and the SHO accompanied her to the place of occurrence where all the three appellants were found present and were arrested, that from the place of occurrence the police seized the loaves of bread, her plastic chappals, her clips and a piece of torn Baniyan. She further stated that her petticoat & torn brassiere were also taken from her in the course of the investigation. In cross-examination she stated that she had come to her husband's house from that of her father two or three days before the occurrence and that during those two or three days she had slept with her husband in the night and twice experienced sexual intercourse with him. When questioned whether she had been wearing the same petticoat Ex. 9 at the time she did sexual intercourse with her husband though in the first sentence she denied to have worn the same petticoat at that time yet on being asked again she admitting that during the night proceeding the morning of the incident, she had had sexual intercourse with her husband and that at that time of sex act she was putting on the same petticoat Ex. Art. 9. Art. 9. She further stated that when she had left her house for the well, she had seen the three appellants mixing mud with their feet and that when she reached the farm house the appellants came from behind and caught hold of her at a distance of 4 or 5 feet from the door of the room and the "Rotis" and the "Pyaz" (onions) which were there with her had fallen at that place. Regarding the actual sex-act she stated that while one appellant used to get busied in the sex act the other two used to catch hold of her by hands & closed her mouth and that all the three appellants committed rape on her without removing either their own nickers or her ghaghara or petticoat. She further stated that on hearing her alarm the master had come inside the room and when the master raised an alarm the appellants released her and ran away. She further stated that her 3 or 4 yeas old "Devar" (young brother of husband) had also accompanied her & when the master had arrived at the scene of occurrence the 'Dewar' had run away and reached the well. She further stated that as she was feeling pain and had difficulty in walking she was taken to the police station on the shoulders and from the police station to the place of occurrence in a hand driven cart, that when the police so reached the place of occurrence all the three appellants were there collecting the mud, that she told the police that those were the persons who had committed rape on her and then police arrested them. 21. As stated above, to base the conviction of a rapist for the offence of rape it is not necessary that corroboration to the testimony of the prosecutrix should be necessarily obtained. Conviction of the accused may safely be based on the sole-testimony of the ravished lady, provided he testimony inspires confidence in the court. In the instant case it may be noted that PW 6 Smt. Shanti's testimony does not satisfy the required test. It not only shows her self- contradictory, unnatural and abnormal conduct but also that of her husband, father-in-law, PW 1 Nawal Kishore and the appellants. In the instant case it may be noted that PW 6 Smt. Shanti's testimony does not satisfy the required test. It not only shows her self- contradictory, unnatural and abnormal conduct but also that of her husband, father-in-law, PW 1 Nawal Kishore and the appellants. If the appellants had actually been seen by her mixing the mud at the farm house and she was accompanied with her 3 or 4 years old 'Dewar' who was capable of going of his own to the well where his father was working, the appellants could have hardly accomplished the misadventure against her. If they had seen the Dewar running from the place of occurrence and going to her father's well, then any of the appellants would have naturally tried to deter the child from reporting the incident to his father. Then if PW 1 Nawal Kishore was really there in the vicinity at the relevant time and Smt. Shanti was raising alarm, the appellants could have hardly committed sexual intercourse with her one by one in succession, despite vigorous protest from her of the degree which would result in the leaving off of her own blouse but also the Baniyan of Buniyad appellant, till the arrival of PW 1 Nawal Kishore on the site of occurrence. Again, if she had been caught hold of by the appellants on the public way near the farm house and her "Rotis" and "Pyaz" had fallen outside of the room then the "Rotis" would not be found inside the room and "Payaz" no where either inside or outside the room. Above all, if an incident of rape had taken place with her and the appellants were the perpetrators of such a crime against her, and they had been seen, committing the crime against Smt. Shanti, by not only PW 1 Nawal Kishore but also by her own "Dewar", the appellants would have hardly thought of staying there and busying themselves in preparing the mud, so as to be found at and arrested from that very place by PW 8 Hargovind Singh SHO. During the meanwhile they not only had sufficient time and opportunity to run away but also sufficient good senses to have removed the torn piece of the Baniyan, scattered loaves of rotis, the clips and chappals of Smt. Shanti from the insides of the room before leaving that place. During the meanwhile they not only had sufficient time and opportunity to run away but also sufficient good senses to have removed the torn piece of the Baniyan, scattered loaves of rotis, the clips and chappals of Smt. Shanti from the insides of the room before leaving that place. But though Smt. Shanti was taken to the place of occurrence in a hand driven cart & on seeing the police and the witness so approaching in their direction none of the appellants is stated to have run away & PW 8 Hargovind Singh SHO found them busy in preparing the mud with their muddy feet. The SHO even found the torn piece of Baniyan, the scattered "Rotis" tied in a cloth, the clips and chappals found inside the room & none of these articles out side the room, though Smt. Shanti had categorically stated that the Rotis and Pyaz had fallen outside the room and that was the natural course had the incident really taken place in that manner. 22. At this stage it was submitted by the learned Public Prosecutor that the identification memo Ex.P 15 prepared by PW 8 Hargovind Singh must be looked into for finding corroboration to the testimony of PW 6 Smt. Shanti about the identity of the perpetrators of the ghastly crime against her. Irrespective of the fact whether Ex.P 15 makes or does not make any sort of evidence in this case, I would have looked into the said 'Fard' to satisfy myself as to the identity of the accused persons, had Smt. Shanti own testimony inspired the least confidence in me in the facts and circumstances of the case. However, ignoring that position of the character of the prosecution case would like to make a reference to Ex.P 15 only with a view to point out the legal position of the alleged evidence of identification contained in the said Fard. 23. Ex.R 15 is a memo of identification of the appellants by PW 6 Smt. Shanti, made by PW 8 Hargovind Singh SHO in the course of investigation of the case by him. 23. Ex.R 15 is a memo of identification of the appellants by PW 6 Smt. Shanti, made by PW 8 Hargovind Singh SHO in the course of investigation of the case by him. If may be recalled that after registering the case at 7.30 A.M. on 20.5.80 PW 8 Hargovind Singh SHO had himself commenced the the investigation, (Ex.P 14) and, as stated by him in court, had taken PW 6 Smt. Shanti to the place of occurrence where the rapists were reported to have raped her and were present at the spot. Ex.R 5 recites that on reaching the place of occurrence the three appellants were seen drawing water from the well in order to prepare the mud and on seeing them PW 6 Smt. Shanti stated to PW 8 Hargovind Singh that those were the persons who had ravished her. Her statement was reduced to writing in Ex.P 15 by PW 8 Hargovind Singh. Section 162 provides that no statement made by any person to a police officer in the course of an investigation under Chapter XII of the Cr.PC. shall, if recorded in writing, be signed by the person making it, nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as provided in the Proviso thereinafter, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. The Proviso says that such a statement may be used for the purposes of contradiction by the accused and/or, by the prosecution with the permission of the court. The Explanation to Section 162(1) says that an omission may also amount to contradiction under certain circumstances. Section 162(2) carves out an exception in favour of statements made relevant under section 32 & 27 of the Indian Evidence Act. The prosecution has relied upon the statement of PW 6 Smt. Shanti, as contained in Ex.P 15, as the evidence of identification under section 9 of the Evidence Act which corroborates the identification of the appellants by her in the court. No test identification was admittedly held in the course of the investigation of the case by PW 8 Hargovind Singh. Identification, being essentially a mental act. No test identification was admittedly held in the course of the investigation of the case by PW 8 Hargovind Singh. Identification, being essentially a mental act. whether done by making a statement or by pointing out at some object, has to be made, at a test identification parade held during the course of investigation of a case. In the absence of evidence of holding a test identification parade during the course of investigation and identification of the accused by the witness, the evidence of identification at the trial is, in fact, rendered valueless and cannot be relied upon to base the conviction of an accused. In this respect a reference may be made to the decision of the Supreme Court in the cases of V.C. Shukhla v. State (Delhi Administration) (supra) and Mohan Lal v. State of Maharashtra (supra). It is thus clear that statement of PW 6 Smt. Shanti, as contained in Ex.P 15. is not only hit by Section 162 Cr.PC. but is also of no value when made in court, in view of the law laid down by the Apex Court in the cited cases. In this respect I agree with their lordships of the Calcutta High Court in the cases of Krishna Kakar & of the Mysore High Court's. Full Bench decision in the case of Krishnaik (supra). 24. The learned Public Prosecutor urged that the marks of injuries found on the person of the ravished lady and the appellants as also the presence of semen on their nickers & petticot of PW 6 Smt. Shanti & in her vaginal smears provides the necessary connection of the appellant with the offence committed against the prosecutrix and such evidence should be accepted for upholding appellants conviction though I have held above that the very prosecution story lacks any confidence in me (sic) for reasons stated above. Yet I would like to judge the probative value of the medical evidence led by PW 5 Dr. Sisodia and chemical examiner's reports in Ex.P 5 and Ex.P. 6. 25. Dr. Sisodia examined PW 6 Smt. Shanti at 11.00 A.M. and found her to be a well built and averagely nourished lady with 32 teeth and fully developed breasts & aged 17 years. Sisodia and chemical examiner's reports in Ex.P 5 and Ex.P. 6. 25. Dr. Sisodia examined PW 6 Smt. Shanti at 11.00 A.M. and found her to be a well built and averagely nourished lady with 32 teeth and fully developed breasts & aged 17 years. In so far as scratches of finger nails on both sides of neck and right thigh were concerned the possibility of their being self inflicted or having been caused by friendly hands cannot be ruled out particularly when she had admittedly been subjected to intercourse by her own young husband. The same can be said of the swelling of the inner aspect of middle of her lower lip, abrasion on buttock and contusion on back. A vigorous & forcible rape on her by three persons in succession despite a violent protest by her to them on the scattered pieces of stones might have cause her much more injuries than were found present on her person. Her involvement in sex act with her husband in that very night may explain the matting of her right sided pubic hair also. Therefore, in appreciating the medical evidence in this case PW 6 Smt. Shanti's own version that during that very night she and her husband had performed sex act cannot be lost sight of in the matter of explanation regarding the condition of her body & clothes. 26. In so far as the presence of scratches on or around the male organs of the three appellants is concerned it may be observed that the common feature in the cases of all the three appellants requires a close and deeper study of the medical evidence on record. Laique appellant was the first to be examined by Dr. Sisodia at 12.00 in the noon. On examining this appellant Dr. Sisodia opined that "he has committed rape over Smt. Shanti." This statement of Dr. Sisodia, contained in his report Ex.P 7, should not go unnoticed for the simple reason that he had subjected his final opinion to the opinion of the Chemical Examiner and the Analyst at F.S.L. It is really surprising that even without obtaining such opinion of other experts Dr. Sisodia was in a position to opine that Laique had committed "rape" and not "sexual intercourse" on "Smt. Shanti" and not on any other lady. Thus unique statement of the witness makes his testimony somewhat partial, biased and unreasoned. Sisodia was in a position to opine that Laique had committed "rape" and not "sexual intercourse" on "Smt. Shanti" and not on any other lady. Thus unique statement of the witness makes his testimony somewhat partial, biased and unreasoned. And when again a look is taken at the examination report of Smt. Shanti Ex.R 4 and the subsequently written words of "Marks of violence on the body" (a) Labia Majora" (b) "Labia minora swelling present," and "Contused" in the body of Ex.P. 4 and overwriting on the figures of age of Abid appellant at two different places and the same overwriting on the figures of age of that appellant in his arrest memo Ex.P. 7 the medical evidence and the investigation seem to be loosing the elements of fairness and impartiality. It may be possible that the mob gathered, possibly, at the hospital as the examination of Smt. Shanti was done during the days of elections, as stated by Dr. Sisodia, might have influenced his opinion and even made him to write in Ex.R 7 that "Laique had raped Smt. Shanti", an opinion that he should have avoided to be given at that time and in that manner according to his professional ethics and requirement. That may also be the reason of manipulating the figures of the age of Abid appellant at some places in his report. Whatever might have been the reason of stating such facts by Dr. Sisodia in his reports he must have realised that more often than not opinions of experts like him, makes the basis of opinions by the courts and leads them to decide a case justly or unjustly. Expert witnesses are important witnesses in a case and they must realise the importance of their opinions which, though being of third person, which is treated as here say evidence, has been statutorily recognised as relevant evidence under section 45 of the Evidence Act. Therefore, instead of trying to give wrong or doubtful opinions, they should generally state the scientific facts obtained by them after acquisition of special knowledge of a subject and from their experience and should make such facts which are relevant under section 51 of the Evidence Act, the basis of their opinions under section 45 so that the courts may decide the matters before them rightly & justly. 27. 27. In the same course of discussion it would be worthwhile to refer to the reports of the Chemical Examiner and the Analyst Ex.P. 5, Ex.P 6. PW 8 Hargovind Singh stated that he had seized the piece of Baniyan cloth found at the place of occurrence vide Ex.R 2 and the torn Baniyan of Buniyad appellant vide Ex.P 14 & sealed them. Both the memos were separately prepared and specimen impression of the seal, used to seal the relevant packets, were made thereupon. Obviously two separate packets were prepared by him. 28. Vide his letter No. 25 dated 20.5.80 Ex.R 10 addressed to Chief Chemical Examiner PW 5 Dr. Sisodia had provided four sealed packages, 4 sealed packets and one sealed penicillin injection vial, to the SHO Hargovind Singh. Thus in all there were eleven sealed packages, packets & vial to be sent to the expert of the F.S.L. 29. PW 3 Karan Singh FC stated that on 23.5.80 he had been given two packets of the police station and eight packets prepared by the doctor but when he delivered them to the F.S.L. at Jaipur those were returned to him on the ground that the hospital seals were not clear. He therefore, brought them back and deposited with the police station. There is no evidence on record to show as to by whom, how & when the packets, packages were again sent to the experts. 30. Ex.R 6, the report of the Analyst at F.S.L. dated 28.6.80 states that eleven packets in all were received at the FSL on 27.5.80 vide S.P letter No. 6312 dated 21.5.80. If PW 3 Karan Singh FC was delivered 10 packets on 23.5.80 from the police station how the letter of SP Sawai Madhopur came to be prepared on 21.5.80 has not been explained on the record of the case. There is no evidence on record to show whether the packets were ever deposited in police Malkhana and kept in sealed condition there were taken to the F.S.L. in sealed condition. There is also no evidence to show that the police officer had obtained the letter of the S.P Sawai Madhopur on 21.5.80 in advance. 31. Ex.R 5 is the report of the Chemical Examiner F.S.L. dated 30.7.80. There is also no evidence to show that the police officer had obtained the letter of the S.P Sawai Madhopur on 21.5.80 in advance. 31. Ex.R 5 is the report of the Chemical Examiner F.S.L. dated 30.7.80. It says that one packet, containing the Baniyan & the the Baniyan piece and accompanied with S.R Sawai Madhopur letter dated 21.7.88, was received at the F.S.L. on 23.7.88 though special messenger. It is not understandable that when PW 8 Hargovind Singh SHO had prepared two packets of both the articles and on 27.5.80 they had been separately received at the F.S.L. in parcels marked A & B, how did they form one packet subsequently at the police station so that both the articles were found in one packet. 32. The evidence on the point of analysis & chemical examination of the various incriminating articles as pointed out above, leaves much confusion & doubt. In the absence of the linking evidence & explanation of the confusing state of affairs no reliance can be placed on the reports of the Analyst & Chemical Examiner so as to fasten criminal liability on any of the appellant. 33. In the above state of affairs neither the evidence of injuries to PW 1 Nawal Kishore nor the contradictory statements of PW 4 Sheo Narain. the husband and PW 7 Bajrang can be relied upon. Whereas PW 6 Shanti stated that she had proceeded to her father-in-law's well after the occurrence and on seeing him coming on the way had narrated the incident to him there, PW 7 Bajrang told that on hearing hue & cries from the village he had gone to the village & there he came to know as to what had happened with PW 6 Shanti. PW 4 Sheo Narain, on the other hand, stated that he had seen his wife near Moti's chabootra coming weeping & there she had narrated the incident to him. Thus whereas PW 6 Smt. Shanti had stated that she had had sexual intercourse with her husband in the very night, Sheo Narain stated that he had done the sex act two days earlier. These are material contradictions in the statements of these important witnesses and in the facts and circumstances of the case, rob them of their testimony having truth therein. 34. Mr. These are material contradictions in the statements of these important witnesses and in the facts and circumstances of the case, rob them of their testimony having truth therein. 34. Mr. Shrimal had stressed that Abid appellant was a lad much below 16 years of age at the time of the alleged occurrence and in his medical examination report and arrest memos his age had been originally mentioned as 13 years but later on the same was changed to 16 years. Several authorities from the Apex Court, as mentioned above, were also referred to in order to say that in his trial in a regular court and that too with major accused, illegality was committed and the child was unlawfully kept in custody and confinement. In view of the interpolation made on the figures of his age at two places in his report by PW 5 Dr. Sisodia and in his arrest memo by PW 8 Hargovind. Mr. Shrimal's argument carries much force & weight. But since the very theory of the prosecution in this case is not only found doubtful but highly improbable and unnatural and the evidence produced by the prosecution in support of such theory, partial, untrustworthy & unreliable, I would not like to deal with this point in detail. 35. As a result of above discussion the conviction & sentence for offence under section 376, 342, 328 IPC of all the three appellants is found bad in law and on facts. Consequently the impugned judgment and order are set aside and all the three appellants acquitted of the offences under sections 323, 342 & 376 IPC. They are on bail, they need not surrender as their bail bonds & surety bonds are cancelled. The amount of fine, if has been realised from them, shall be returned to them. The appeal is allowed.Appeal allowed. *******