JUDGMENT 1. -On 13.12.1995 at 7.00 p.m. PW 5 Chotu Si() Narain Bairwa R/o village Polyada submitted a written report Ex. P/2 to PW 14 Rang Lal, Station House Officer (SHO), Police Station Dooni Distt. Tonk (Raj.) alleging therein that on that day his minor daughter, PW 3 Km. Parvati, aged about 9 or I0 years, had gone to the jungle to graze the goats; that when she did not return till 4.30 p.m. he proceeded to search her, that near his house he noticed a weeping Parvati, with a blood stained ghaghra, coming toward the house; that on query by him Parvati told him that when she was grazing the goats on the bank of a 'Khala' near the well of Durga-Chittar, two Sansi boys R/o village Polyada, who along with a woman were manufacturing illicit liquor in the 'Khala', caught hold of her and while one of them kept watching her goats, the other took her to the 'Khala' and committed rape on her, despite a protest from the woman present there with them; that she bled with great pain per her private parts and her "Ghagra" was stained with blood; that after the sex act was over the boy who had committed rape on her, made her to wash her "Ghaghra" and then let her off. On such report PW 14 Rang Lal SHO registered Crime No. 253/95 under section 376 IPC against two unknown Sansi boys vide FIR Ex. P/4 and commenced investigation. 2. In the course of investigation Parvati was produced before the Medical Officer, at Government Dispensary at Dooni but the medical officer referred her to the Saadat Hospital at Tonk. Parvati was admitted in the Saadat Hospital at Tonk at 9.30 p.m. on 13.12.1995 and on her examination Dr. B.S. Babel, Senior Specialist in General Surgery, and PW 10 Dr. S.B. Mathur noticed one tear in the outlet of her vagina, posteriorly, extending to the perineum and another. 21/2" long and 1/2" wide tear in the posterior wall of the vagina extending near to the post fornix, with bleeding from the wound and blood clots present in the vagina. Her hymen was found ruptured. The tears were repaired and bleeding was stopped by them. (Vide Ex. P/17). 3. 21/2" long and 1/2" wide tear in the posterior wall of the vagina extending near to the post fornix, with bleeding from the wound and blood clots present in the vagina. Her hymen was found ruptured. The tears were repaired and bleeding was stopped by them. (Vide Ex. P/17). 3. The Principal Medical Officer of the said Hospital, however, ordered for examination of child by a board of the two doctors, consisting of PW 7 Dr. Smt. Rajeshwari Baryani and PW 10 Dr. S.B. Mathur. The board, therefore, examined the victim of sexual assault on 14.12.1995 and confirming the earlier report of Dr. Babel, it further opined that Parvati had been very badly raped and the perennial and vaginal injuries were caused to her as a result of such sex act. The Board further opined that the injuries were fresh in duration on 13.12.1995 and grievous in nature and that if those were not timely attended to and cured they could have proved fatal to the minor girl. The Board also obtained the swabs and slide of the vaginal contents vide Ex. P/7 for examination of presence of semen by the authorities at the State Forensic Science Laboratory, Rajasthan, Jaipur. No report from the FSL was, however, placed on the record of the case. 4. PW 14 Rang Lal SHO had examined the informant PW 4 Chotu under section 161 Cr.P.C. on the same day. He examined PW 1 Ladu and PW 2 Om Prakash on the following day and through their statements recorded under section 161 Cr.P.C. he came to know that the present appellants were the rapist of the minor girl. He, therefore, arrested Amroodiya-appellant on 16.12.1995 at 7.30 a.m. (Ex. P/24) who gave him an information under section 27 of the Evidence Act on 17.12.1995 at 4.00 p.m. in consequence of which information an underwear, having blood stains on the front side of it, was discovered on 18.12.1995 from behind the hushes near the place of occurrence and was accordingly seized and sealed vide Ex. P/10, Vimalya-appellant was arrested on 17.12.1995 at 8.00 p.m. vide Ex. P/23 and on a similar information given by him on 18.12.1995 at 3.30 p.m. (Ex. P/26) an underwear having blood stains on the front side of it, was discovered and seized on 19.12.1995 at 10.30 a.m. vide Ex. P/11. P/10, Vimalya-appellant was arrested on 17.12.1995 at 8.00 p.m. vide Ex. P/23 and on a similar information given by him on 18.12.1995 at 3.30 p.m. (Ex. P/26) an underwear having blood stains on the front side of it, was discovered and seized on 19.12.1995 at 10.30 a.m. vide Ex. P/11. There under wears and the 'Ghaglira' of Parvati along with the vaginal swab and slides and pubic hair were though forwarded to the FSL through PW 11 Rameshwar Prasad Constable yet, as stated above, no report from the FSL was filed, either in the trial Court or produced before this Court. 5. After the arrest of the appellants a test identification parade was held at the jail premises on 15.1.1996 by PW 12 Ashok Kumar Jain, Judicial Magistrate and at such identification parade Parvati identified the present appellants as her rapist vide Ex..P/18. 6. On trial of the appellants on the charges under sections 376(2)(g) & 307 of the Indian Penal Code the learned Special Judge (Communal Riots Cases) and Additional Sessions Judge, Tonk, vide his impugned judgment and order dated 25.6.1997 in Sessions Case no. 2/97 (26/97) held the two appellants guilty of the offence under section 376(2)(g) IPC, convicted them as such and sentenced them to rigorous imprisonment for seven years and fine of Rs. 250/-each. He acquitted them of the offence under section 3071PC. Hence this joint appeal under section 374 Cr.P.C. by them. 7. Mr. S.R. Bajwa, the learned counsel for the appellants urged that in the present case though it could not be disputed that Km. Parvati was a minor girl below sixteen years of age and she was raped by one or even more males yet it could not be held beyond reasonable doubt that the present appellants were her rapists. The learned counsel submitted that not only that in his written report PW 5 Chotu, the father of the ravished girl, on information given to him by her, had reported that only one of the two sansi boys had raped her but also that the prosecution had substantially changed their version, as was given in the FIR from that given at the trial of the appellants. It was further submitted by the learned counsel that the learned trial Judge did not appreciate the evidence of the identification of the appellants in right perspective in as much he totally overlooked the broad fact that the appellants, after their arrest, were shown to Kum. Parvati in the hospital which fact was admitted by the child witness in her statement before the trial Court and which fact totally destroys prosecution case against the appellant. In this behalf Mr. Bajwa placed reliance on Supreme Court decision in the case of Prahlad Singh v. State of Madhya Pradesh, 1997(3) Crime 167 (SC ) wherein it was held that where in a case of rape on a minor girl the identification parade was held two months after the incident and the accused had been got identified even prior to the holding of such parade, the substantive evidence of the prosecution at the trial of the accused became wholly un-acceptable. 8. The learned Public Prosecutor, however, submitted that apart from the testimony of the child witness there was the incriminating evidence of the presence of blood stains noticed on the under wears of the appellants, discovered in consequence of the information given by them, and, therefore, the entire prosecution case should not be thrown away merely on the ground that Parvati had admitted in the cross-examination that the two appellants were shown to him in the hospital. 9. After having heard the learned counsel for both sides and on a careful study of the record of the lower Court I am of the opinion that although the gravity in the offence committed against the innocent minor girl cannot be minimised and ignored but in the facts and circumstances of this case and in view of the poor standard of investigation made by PW 14 Rang Lal SHO, it is not safe to hold either of the two appellants rapist of Kum. Parvati. In the totality of the facts and circumstances of this case, this Court fails to ignore the material infirmities in the prosecution case so as to withhold the benefit of reasonable doubt, which the appellants are legally and justifiably found entitled to. 10. It cannot be disputed, and Mr. Bajwa has rightly not disputed it, that Kum. Parvati was a minor girl aged much below sixteen years, and had been very badly raped by her rapist or rapists. 10. It cannot be disputed, and Mr. Bajwa has rightly not disputed it, that Kum. Parvati was a minor girl aged much below sixteen years, and had been very badly raped by her rapist or rapists. In this behalf the injuries found present on and in her private parts by PW 10 Dr. S.B. Mathur and Dr. B.S. Babel on 13.12.1995 and confirmed subsequently on 14.12.1997 by the Board of two Doctors, namely PW 7 Dr. Smt. Rajeshwari Baryani and PW 10 Dr. S.B. Mathur, and which injuries have been specifically mentioned above, leave nothing for further comments. The testimony of the two expert witnesses is quite impartial, based on facts noticed by them on the person of Kum. Parvati and hence quite reliable. The grievous nature of the injuries caused to the private parts of the girl probabilities that she might have possibly been raped by more than one male, though a single sex act by an adult male with her could have also caused such injuries to her. Proceeding on the ground that the prosecution case is that she was raped by two persons at one and the same time and such possibility cannot be ruled out in view of the injuries caused to her, I would hold that an offence punishable under section 376(2)(g) IPC was committed against her. 11. Now the pertinent question that arises for serious consideration in this case is whether the present appellants or either of them have been proved to be the rapists or rapist of Kum. Parvati beyond reasonable doubt. 12. However, before I proceed to appreciate the prosecution evidence on this pertinent point I would like to observe that the cases involving sexual assaults on women and girls, more particularly minor girls, are required to be approached with utmost sensitivity keeping in mind the conditions prevailing in society, the sociocultural atmosphere wherein the offender and the offended live, the way of life they are given to and the stigma which such condemnable act of the offender brings to not only the victim of his sexual assault but also to her entire family and continues to haunt them, more particularly the victim, throughout their lives. Rape not only causes physical injury to the victim but also causes a disturbance in her psychology and ultimately adversely affects her very personality. Rape not only causes physical injury to the victim but also causes a disturbance in her psychology and ultimately adversely affects her very personality. She is not an accomplice in such an act but an injured witness and her testimony has to be appreciated like that of an injured witness. If her sole testimony inspires confidence then no corroboration is required before accepting such testimony. Justice to her must be done. Justice means justice to both the parties and she is one of the parties. The interest of justice equally demand that the guilty should be punished and the technicalities and irregularities' which dot not occasion failure of justice should not be allowed defeat the ends of justice. Punishment conforming to and consistent with the atrocity the victim and brutality in the crime and responding to society's cry for justice against such a criminal, should be awarded to him. [ State Bank of Patiala v. S.K. Sharma, (1996) 3 SCC 364 ] . 13. But all that has to be done if the guilt of the offender has been proved beyond reasonable doubt. If the prosecution case suffers from the vice of reasonable doubt in the commission of the offence by the accused, then the 'benefit of such doubt' would be given to the accused. And for the true concept of benefit of doubt the following observations of their Lordships of the Supreme Court in the case of K.I. Puvunny v. Assn. Collector, FT 1997 (2) SC 120 should be remembered:- "The concept of benefit of doubt is not a charter for acquittal. Doubt of a doubting Thomas or of a weak mind is not the road to reach the result Not every fanciful reason that erupted from the flight of imagination but relevant and germane requires tested. Reasons are the soul of law. Best way to discover truth is through the interplay of view-points. Discussion captures the essence of controversy by its appraisal of alternatives, presentation of pros and cons and review on the touchstone of human conduct and all attending circumstances. Truth and falsity are sworn enemies. Man may be prone to speak falsehood but circumstantial evidence shall not. Falsity is routed from man's proclivity to faltering but when it is tested on the anvil of circumstantial evidence, truth trans...." 14. Truth and falsity are sworn enemies. Man may be prone to speak falsehood but circumstantial evidence shall not. Falsity is routed from man's proclivity to faltering but when it is tested on the anvil of circumstantial evidence, truth trans...." 14. Let us examine the facts and circumstances of this case and the evidence on the record of the lower Court in the light of the above principles. 15. The prosecution case mainly rests on (i) the evidence led by PW 1 Ladoo Ram,PW 2 Om Prakash, the two independent witnesses who are stated to be present in the vicinity at the time of the commission of the offence by the appellants against Km. Parvati (PW 3), PW 3 Parvati herself and her parents, namely, PW 4 Smt. Matiya and PW 5 Chotu, whose subsequent conduct is relevant in appreciating the testimony of Kum. Parvati, (ii) the evidence of identification of the appellants as rapists of Kum. Parvati led by PW 10 Ashok Kumar Jain Magistrate; (iii) the discovery of the blciod stained under wears of the appellant in consequence of the disclosure statements made by them under section 27 of the Evidence Act and (iv) the fairness and worth of the investigation conducted in this case. On examining the prosecution case from each of the above angles the position comes to this. 16. PW 1 Ladu Ram and PW 2 Om Prakash are those two witnesses who are stated to be present around the place of occurrence at the time when Kum. Parvati had been sexually assaulted by her rapists. In this behalf the witness stated before the police that Ladoo Ram was grazing his goats near his fields; that he had seen Kum. Parvati had been sexually assaulted by her rapists. In this behalf the witness stated before the police that Ladoo Ram was grazing his goats near his fields; that he had seen Kum. Parvati grazing her goats near the field of Dina Gujar; that Amrooda-appellant and his wife were manufacturing illicit liquor on a working still installed in the Khala and Vimalya- appellant was consuming such liquor there; that on feeling tired, Om Prakash came to the Kotha built at the well of Durga Gujar, that while he was taking rest in the Kotha, he heard the cries of the girl coming from the side of the Khala; that he came out of the Kotha and saw that Amroodiya-appellant was standing in front of the goats of Parvati who was not there, that when he proceeded in the direction wherefrom the cries of the girl were coming he saw Vimalya-appellant running from the Khala. that on reaching the Kotha, he noticed Parvati lying on the ground in naked condition and bleeding from her private parts and her 'ghaghra' soaked with blood; that when he raised an alarm Amroodiya- appellant also ran away; that PW 2 Om Prakash had reached there during the meanwhile but both the appellants ran away from the place of occurrence; that they both picked up the girl and asked her to go to her house; that thereafter they both left in search of the appellants but could not find them (Ex. P/1). 17. In respect of PW 2 Om Prakash the prosecution case was that he too was present in the vicinity of the place of occurrence. In that behalf, the witness is said to have stated to the police that while returning from his well and going to the village Polyada he had heard the call of PW 1 Ladoo Ram and had then gone to the place of occurrence where he saw Parvati in badly injured condition bleeding from her private parts and that PW 1 Ladoo had told him that two sans boys had committed rape On PW 3 Parvati whereupon the two asked Parliati to go home and that he himself had accompanied Ladoo in search of the Sansi boys but could not trace them (Ex. P/3). 18. Neither of the two witnesses supported the above version of the prosecution at the trial of the appellant. P/3). 18. Neither of the two witnesses supported the above version of the prosecution at the trial of the appellant. Ladoo stated that though he was on his well on the relevant day and time yet he did not see either PW 3 Parvati grazing her goats nearby nor either of the two appellants. He was declared hostile but nothing beneficial to the prosecution could be had from him despite prosecutor cross-examining him at sufficient length. The testimony of PW 1 Ladoo thus helps neither the prosecution nor the accused. 19. PW 2 Om Prakash also did not support the above version of the prosecution. At the trial he stated that at about 5.00 or 6.00 p.m. on the relevant day he was sitting on the chabootra of the Surpanch and smoking a Biri; that on hearing noises coming from the house of Chotu he went to his house and there he came to know that Parvati had been raped by somebody and that he went along with Parvati, her parents and PW 6 Durga Lal to police station Dooni and therefrom to Tonk Hospital for her treatment. This witness too was declared hostile but nothing useful to the prosecution case could be obtained in his cross-examination. 20. It is seen that neither of the two witnesses, namely PW 1 Ladoo and PW 2 Om Prakash supported the prosecution version. Their statements recorded under section 161 Cr.P.C. by PW 14 Rang Lal, SHO in the course of investigation do not make substantive evidence in the case. Such statements of these two witnesses could have been used only for contradicting them from their statements recorded at the trial of the appellants and not as substantive evidence in the case. And the substantive evidence, as led by the two witnesses did not incriminate either of the two appellants. Thus, the evidence of these two witnesses is totally nil as against the appellants. 21. The case of prosecution further is that the FIR Ex. P-3/4 was lodged by PW 5 Chotu soon after the occurrence and PW 14 Rang Lal had examined Chotu on the same day (Ex. D/2). In such statement no reference was made to the fact that PW 1 Ladoo and PW 2 Om Prakash had seen the appellants on the place of occurrence or running therefrom. P-3/4 was lodged by PW 5 Chotu soon after the occurrence and PW 14 Rang Lal had examined Chotu on the same day (Ex. D/2). In such statement no reference was made to the fact that PW 1 Ladoo and PW 2 Om Prakash had seen the appellants on the place of occurrence or running therefrom. In that statement he had stated that Durga, Om Prakash, Shrawan and his own wife had accompanied him to the police station where he got the Report Ex. P/3 written by a boy and then presented it before the SHO. Curiously enough, it was mentioned in the statement of the witness that from Dooni Police Station he himself had returned to his village Polyada and his wife and other persons including Om Prakash and Durga Lal witnesses had taken Parvati to Tonk. This statement of Chotu was purported to have been recorded by PW 14 Rang Lal on 13.12.1997. If that was so, he could have recorded the statement of PW 2 Om Prakash and PW 4 Smt. Matiya and PW 6 Durga Lal at that very time. But Ladoo's and Om Prakash's statements were recorded on 14.12.1997 and that of Smt. Matiya (Ex. D/1) as late as on 24.12.1997. Be that as it may, it is seen that neither in the FIR nor in the statement of PW 5 Chotu, the father of PW 3 Km. Parvati, any reference to the identity of the present appellants, as being the rapist of the girl was made. PW 1 Ladoo is seen to have accompanied Chotu, along with the girl and other persons, to the police-station wherefrom the girl was taken to P.H.C. Dooni and was examined by the medical officer posted there on police request and forwarded her to the Saadat Hospital at Tonk. Had PW I Ladoo seen the present appellants on the place of occurrence or running therefrom, he would have certainly stated such facts to PW 5 Chotu who would have not missed to state that important fact in the FIR and in his statement recorded under section 161 Cr.P.C. on that very day. 22. The above discussion clearly exhibit that the investigation conducted by PW 14 Rang Lal was not at all fair. 22. The above discussion clearly exhibit that the investigation conducted by PW 14 Rang Lal was not at all fair. In any case, the testimony of PW I Ladoo and that of PW 2 Om Prakash does not afford any assistance to the prosecution version as was advanced in the FIR and in the police Report submitted under section 173(2) Cr.P.C. in this case. 23. PW 3 Kum. Parvati is the ravished girl. She is a minor girl aged not more than 10-12 years and hence is a child witness in this case. After having examined the power of her understanding the questions in general and of the sanctity of oath in particular, the learned trial Judge administered oath to her. She stated that when she was grazing goats near the bank of the Khala, Vimalya-appellant caught hold of her, took her to the 'Khala' and committed rape on her. She further stated that thereafter Amroodiya-appellant had also raped her. She further stated that she raised a cry but the appellants closed her mouth and that by the acts of the appellants she had bled from her privates which soiled her Ghaghra. She further stated that she had become unconscious and regained consciousness in the hospital. Though in the beginning of her examination in chief she had stated that her grand father was working at his Adholiwala field yet in the end she stated that at the time of the incident there was nobody at the field and well of Durga Gujar. On being cross-examined she stated that after regaining her consciousness in the hospital at Tonk she did not tell about the incident to anybody. She further stated that at the Hospital the police had brought both the appellants before her; that at that time they were hand-cuffed and that thereafter she had been taken to the jail to identify them. She further stated that on the day (when she was examined in the Court) her mother had told the names of the two appellants to her and asked her to name those two appellants. She denied to have told to anybody that she had been raped by two boys. 24. It is the settled position of law that the testimony of a child witness should be accepted after much care and caution. She denied to have told to anybody that she had been raped by two boys. 24. It is the settled position of law that the testimony of a child witness should be accepted after much care and caution. The reason behind this principle obviously is that child witnesses may be easily tutored to state such facts which they themselves have not seen, observed, experienced or heard but their elders want them to state such facts from such sources. In appreciating the testimony of a child witness his/her age, the power of his/her understanding and perception, her/his mental awakening and awareness, all shall have to be taken into consideration. If on any point the child witness is found departing from the principle of normalcy of human conduct of the person of his/her age, then effort should be made to find out some independent corroborative evidence to his/her testimony and after taking into account all the attending circumstances, the worth and value of the testimony of such a witness should be obtained. If in material particulars the testimony of the child witness is found in accordance with the normal human conduct of the child of his/her age and the facts stated by him/her fit in the prosecution theory, then her/his testimony may be accepted even without corroboration in the facts and circumstances of a given case. No hard and fast rules can be laid down for accepting the testimony of a child witness in a case. The worth and value of the testimony of such a witness would always depend upon the facts and circumstances of the given case. 25. In the instant case, PW 3 Km. Parvati is undoubtedly a child witness. May be, she was mature enough to have understood the questions put to her and also the sanctity of the oath administered to her, yet the likelihood of her subjection to her elders or other persons wishes, directions, instructions cannot be ruled out. The possibility of her being tutored by her parents was there. Parvati is undoubtedly a child witness. May be, she was mature enough to have understood the questions put to her and also the sanctity of the oath administered to her, yet the likelihood of her subjection to her elders or other persons wishes, directions, instructions cannot be ruled out. The possibility of her being tutored by her parents was there. Therefore, in order to accept her version about her rapist, her testimony on that point is required to be accepted after great care and caution, particularly when the culprits were not named in the FIR lodged by her own father and the culpability of such culprits as being her rapists was dependent solely on the worth of value of her testimony of identification of her rapists by her. It may be noted that whereas in the FIR it was stated by PW 5 Chotu that Parvati had narrated the entire incident to him and told that two Sansi boys and a woman were manufacturing liquor at a still in the Khala, one of the boys had caught hold of her despite a protest from the woman with them and committed rape on her; and that the other boy had looked after her goats during all that time. But Parvati stated no such facts at the trial. Her statement, if any, recorded under section 161 Cr.P.C. was not available on the record of the trial Court in order to know as to what was the version given by her in the course of investigation of the case. In Court, it was stated by her that both the appellants had committed rape on her one by one but such fact was not mentioned in the FIR. Then, she has stated that she had become unconscious and regained consciousness in the Hospital at Tonk. Who had brought her from the Khala to her home in the village, was not explained at the trial. Then, she has stated that she had become unconscious and regained consciousness in the Hospital at Tonk. Who had brought her from the Khala to her home in the village, was not explained at the trial. Whereas the prosecution case was that PW 1 Ladoo Ram and PW 2 Om Prakash had sent her to her house from the jungle and she herself had reached her house, a case which was though endorsed by PW 5 Chotu, her father, yet PW 4 Smt. Martiya, her mother, stated that Ladoo and Om Prakash had brought her to the house, a fact which was endorsed neither by Ladoo and Om Prakash nor by the child witness and her father. 26. It is evident from the discussion made her in above that the prosecution evidence on the material points is self contradictory. The case as was put up in the FIR by the informant and after the investigation of the case by PW 14 Rang Lal, SHO was not endorsed at the trial either by the two independent witnesses namely Ladoo and Om Prakash nor by the prosecutrix, herself. The entire theory was totally changed leaving the very material point in doubt as to whether the child had at all narrated the incident to PW 5 Chow. According to her, she was not at all in a position to have stated such facts to him. The very genuineness of the FIR and the version given therein was thus in grave doubt. 27. In so far as the identity of the present appellants as the rapists of Km. Parvati is concerned, the prosecution evidence on that point is highly doubtful and cannot be accepted without admitting a major element of doubt therein: Parvati herself stated that before taking her to the jail for identifying the appellants, she had seen them in handcuffs at the hospital. That was the statement made by the appellants also to the Magistrate at the time of the test identification parade. Parvati has even stated that her mother had told the names of the appellants to her and had asked her to name them in Court. Obviously the accused persons were shown to the witness at the hospital and,,thereafter, she was called to identify them in jail. Parvati has even stated that her mother had told the names of the appellants to her and had asked her to name them in Court. Obviously the accused persons were shown to the witness at the hospital and,,thereafter, she was called to identify them in jail. The evidence of identification collected in that manner can hardly be used as corroborative evidence to the identification made of the appellants, by the child witness in the Court at their trial. The case relied upon, by Mr. Bajwa in that behalf thus applies on all fours to the facts and circumstances of the present case. The evidence so adduced by the prosecution to establish the identity of the present appellants as rapists of PW 3 Km. Parvati is not found trustworthy, reliable and acceptable. 28. On the basis of the discussion made so far I hold that the testimony of PW 3 Parvati on the point of the identity of the present appellants as being her rapists cannot be accepted without independent corroboration. The later discussion would show that no reliable corroborative evidence is available on the record of the case. 29. While appreciating the evidence of PW 3 Km. Parvati the evidence led by her parents PW 4 Smt. Martiya and PW 5 Chotu has also been commented upon. Their testimony does not directly incriminate either of the two appellants as being the rapists of Km. Parvati. The indirect evidence of PW 5 Chotu, based on his knowledge gathered from the child witness, does not stand corroborated by Parvati herself. Thus, the testimony of these two witnesses is not at all helpful in holding the present appellants or either of them rapists of Km. Parvati. (ii) Identification of the appellants :30. Apart from the fact that the material evidence of the identification of the two appellants by PW 3 Kum. Parvati as her rapists seriously suffers from the fatal defects that prior to the identification of the appellants by her at the test identification parade held on 15.1.1996 by PW 12 Ashok Kumar Magistrate they had been produced before her in the hospital, and therefore, the identification of the two appellants by her either at the test identification parade in jail or subsequently at the trial of the appellant in the Court had become unacceptable, I find that Amroodiya-appellant, as stated earlier, was arrested on 16.12.1995 and Vimalya on 17.12.1995. Though in the relevant arrest Memos (Ex. P/24 and Ex. Pt23 respectively) it was stated that the arresters were kept Ba-parda as identification parade was to be held in respect of them yet, it is an obvious fact that they were kept at the police station in police custody and were admitted to jail on 20.12.1995, as is available from a mention of the date of their entry into jail in the identification memo Ex. P/19. It is the case of the investigating officer, PW 14 Rang Lal SHO that after their arrests the two appellants had made disclosure statements leading to the discovery of their blood- stained under wears from the bushes near about the place of the occurrence. The place of recovery of those incriminating articles was qUite close to the village Polyada on the outskirts of which the sans is were having their Deras. It is thus clear that before conducting the test identification parade on 15.1.1995 the two appellants had been taken to village Polyada where prosecution witnesses including Parvati and one Prahlad and PW 8 Dayala Ram, the two independent witnesses of such discovery and recovery, had all the opportunity to see the allegedly Ba-purda appellants.31. The evidence of identification of person and property collected in the course of identification has corroborative value only to the evidence tendered in evidence by the prosecution at the trial of the accused which makes substantive evidence in the case. Its worth and value as a corroborative piece of evidence to a fact in issue in a criminal case cannot be minimised. Evidence of identification of the person or property in the course of the investigations affords reliability to the substantive evidence of the witness at the trial of the case. Therefore, such corroborative evidence, in majority of the case exceptions apart, in fact makes the very foundation of the reliability and acceptability of the substantive evidence coming against the accused at his trial. It is, therefore, always necessary that such evidence, though of corroborative value, should suffer from no blemish, otherwise the probative value of the substantive evidence, coming subsequently at the trial of the accused, would also loose its worth and value. It is, therefore, always necessary that such evidence, though of corroborative value, should suffer from no blemish, otherwise the probative value of the substantive evidence, coming subsequently at the trial of the accused, would also loose its worth and value. It is, therefore, always desirable that whenever the identity of an offender is to be determined by obtaining the evidence of his identification by the witness in the course of investigation, the accused must be kept Ba-purdah, not in police custody but in judicial custody also. If need be and incriminating evidence of identification has been obtained against him by holding the test identification parade, his police remand may be obtained to conduct further investigation like recoveries of stolen property or weapons of crime. Unfortunately that is being done neither by the investigating officers nor insisted upon by the concerned Magistrates. Failure on their part in collecting evidence by way of a well established and well recognised procedure ultimately results in unjustified acquittals of criminals in justified cases. The attention of the authorities concerned is invited to this state of affairs and practice prevalent amongst the investigating officers and the Magistrates and it is expected that- suitable and appropriate directions/instructions/guidelines, in conformity with the relevant rules and the law laid down by the Courts in that behalf, shall be issued to them if the criminal justice is intended to be administered in the State in letter and spirit.32. To sum up the discussion on the probative value of the identification of the appellants as rapists of Kum. Parvati in this case I hold that such evidence has been rendered unacceptable for the fault of the Investigating Officer in this case. The appellants cannot, therefore, be convicted of the offence under section 376 IPC on the basis of such unacceptable evidence of identification in this case. (iii) The guilty under-wears :33. Though the under wears, which the appellants are stated to be putting on their persons, when they had allegedly committed rape on Kum. Parvati, were discovered in consequence of the disclosure statements made by them after their arrests, yet such evidence does not inspire any confidence in me. Firstly, the prosecution case was that the two appellants had made the ravished girl washed her ghaghra after the sex act (version in the FIR). Parvati, were discovered in consequence of the disclosure statements made by them after their arrests, yet such evidence does not inspire any confidence in me. Firstly, the prosecution case was that the two appellants had made the ravished girl washed her ghaghra after the sex act (version in the FIR). If that was so, it does not stand to my reasons that the appellants would not make such efforts to destroy the evidence of their guilt from their own under wears. Secondly, it also does not appeal to my reasons that the appellants would throw their blood stained under wears near the bushes in such a manner that they would be visible to the naked eyes of any body. It is not the case of the prosecution that the under wears were found hidden under the bushes or the ground. If that were so, the investigating officer could have certainly observed them at the time of his local inspection of the place of occurrence made on 14.12.1995. He did not even seize any still or other articles used in manufacturing illicit liquor from the place whereat the appellants were stated doing such an unlawful act. Even the alleged woman, stated to be present with the appellant at that time was traced. Thirdly, there is no evidence to establish that the under wears, so discovered, belonged to the appellants and to no body else. Those were neither produced at the trial of the appellant nor were put to them in their examinations recorded under section 313 Cr.P.C. Fourthly, it was not proved that such under wears were having blood stains or stains of semen on them. Fifthly, the Investigating Officer did not state that the discovery was made in the presence of the witnesses. He simply proved the signature of Prahlad and PW 8 Dayala Ram on the relevant seizure memos Ex. P/10 & Ex. P/11. The memos were prepared by him in the course of investigation and contained his own statement. Such memos can be used for the purposes of refreshing his memory. They do not make substantive evidence in the case. The facts stated on oath in his testimony at the trial go to make substantive evidence in a criminal case. P/11. The memos were prepared by him in the course of investigation and contained his own statement. Such memos can be used for the purposes of refreshing his memory. They do not make substantive evidence in the case. The facts stated on oath in his testimony at the trial go to make substantive evidence in a criminal case. PW 14 Rang Lal SHO did not state the facts, as were mentioned by him in the said memos in his statement recorded at the trial of the appellants. Prahlad, one of the witness to the seizure memos was not examined at the trial of the other witness, PW 8 Ram Dayal stated in cross-examination that the under wears were in possession of the police and that he was simply made to sign the relevant memos. He even stated that on the day, the girl was raped, the police had obtained her blood stained lehnga and the police had then visited the village after two days when he and other villagers had approached the Collector about the in-activity of the police in the matter. There are no reasons to disbelieve this witness on this point.34. To sum up I hold that neither the discovery of the allegedly blood stained under wears of the appellants in consequence of an information given by them under section 27 of the Evidence Act is satisfactorily proved nor does such recovery incriminate either of the two appellants for the reasons stated above. The evidence on the point is not reliable at all and is accordingly rejected. (iv) Fairness of investigation :35. The discussion made herein above is sufficient to show the poor standard of investigation in this case. I would not like to repeat the same points once again. Suffice it to say that the investigation of a heinous crime like sexual assault on a minor girl, should not have been made in such a casual manner as is seen to have been done by PW 14 Rang Lal SHO in the present case. Not only that the FIR was not containing a correct version and it exhibited that efforts were made, on some advice from interested quarters, to involve more than one person as accused in this case, as is clearly shown from the manipulated figure of "two" in the formal FIR Ex. Not only that the FIR was not containing a correct version and it exhibited that efforts were made, on some advice from interested quarters, to involve more than one person as accused in this case, as is clearly shown from the manipulated figure of "two" in the formal FIR Ex. P/4, but also that no sincere efforts were made to obtain valuable evidence of identification of the culprits in the course of investigation by not procuring such evidence in accordance with the accepted principles of conducting investigations in such cases. It is really painful to see that a true case of a heinous crime of sexual assault against an innocent child has to go unpunished for the fault of the investigating officer. The authorities concerned may, in their wisdom, consider the advisability of handing over the investigation of such heinous crimes to insensitive investigating officers like the one in the present case.36. In the result, it is held that the prosecution had failed to prove with cogent, convincing and truthful evidence, the charge under section 376(2Xg) IPC against either of the two appellants beyond reasonable doubt. The appellants deserve to get benefit of doubt which is now given to them. 37. The impugned judgment and order are hereby set aside and both the appellants acquitted of the offence under section 376(2)(g) of the IPC. They are in jail, they shall be released forthwith, if not wanted in any other case. The amount of fine, if has been realised from them, shall be returned to them. Consequently, the appeal stands allowed.38. A copy of this order shall be forwarded to the Director General Police (Adm.), Rajasthan, Jaipur for information and necessary action if deemed proper.Appeal allowed. *******