JUDGMENT 1. - The abovenamed accused-appellant has preferred this appeal against the judgment and order dated 15.7.1999 passed by the learned Special Additional Sessions Judge (Women Atrocities), Sri Ganganagar in Sessions Case No. 271/97 by which he convicted accused-appellant for the offence u/ sections 376 & 450 IPC and sentenced in the following manner : Name of accused-appellant Convicted under section Sentence awarded Sahab Ram 376 IPC 450 IPC Seven years' RI and a fine of Rs. 2,000/-, in default of payment of fine, to further undergo six months' SI. Seven years' RI and a fine of Rs. 2,000 / -, in default of payment of fine, to further undergo six months' SI. Both the sentences were ordered to run concurrently. 2. The facts giving rise to this appeal, in short, are as follows:- On 5.5.1997 at about 5.10 p.m. PW 2 Birma Devi lodged a written report Ex.P /1 before PW 6 Narendra Kumar Sharma, SHO, Police Station Padampur stating inter alia that on 8.5.1997 she was sleeping with her three small children in her house (23 BB Bera) and her husband PW 4 Kashiram was not there and had gone to Banwali Tehsil Sadulsahar and at about 12.00 in the mid-night, accused-appellant, who lives near her house, came to her house and took her orni (clothe) and shut her mouth by orni and at that time, he was having sword and he was in the state of intoxication and he took her to another room and put her on the ground and after raising her gagra, he committed rape on her. It is further stated in the report that her mouth was tied with clothes, therefore, she could not raise hue and cry and during the struggle when she resistod, her bangles of glasses were broken and her orni was also torn and after that incident, she removed orni from her mouth and made hue and cry and after hearing her cries, PW 5 Maluram (Jeth of PW 2 Birma Devi) came there and seeing him, accused-appellant ran away from the scene and while running, accused-appellant threatened that in case this incident is told to anybody, she will face dire consequences. It is further stated in the report that after this incident, on the next day i.e. on 4.5.1997, she summoned her husband PW 4 Kashi Ram and Panchayat was called in the village, but accused- appellant did not attend the Panchayat and refused to come there and, thereafter, this report has been lodged. On this report, police registered FIR Ex.P/2 and started investigation. During investigation, bangles of PW 2 Birma Devi were seized through Ex.P/4. The accused-appellant was arrested through Ex.P/6. The prosecutrix PW 2 Birma Devi was got medically examined by PW 7 Dr. Harbans Khanna and her report is Ex.P/5. The accused-appellant was also got medically examined and his report is Ex.P/ 7. After usual investigation, police submitted challan against the accused-appellant in the Court of Magistrate and from where the case was committed to the Court of Session and, thereafter, the case was transferred to the learned Special Additional Sessions judge (Women Atrocities), Sri Ganganagar. On 18.10.1997, the learned Special Additional Sessions Judge (Women Atrocities), Sri Ganganagar framed charges against the accused-appellant under sections 376 & 450 IPC. The charges were read over and explained to the accused-appellant, who pleaded not guilty and claimed trial. During trial, the prosecution examined as many as 9 witnesses and got exhibited some documents. Thereafter, statement of the accused-appellant under section 313 Cr.P.C. was recorded. In defence, one witness DW 1 Sarwati has been produced and three documents were also got exhibited. After conclusion of trial, the learned Special Additional Sessions Judge (Women Atrocities) Sri Ganganagar through his judgment and order dated 15.7.1999 convicted the accused-appellant for the offence under sections 376 & 450 IPC and sentenced in the manner as stated above holding inter alia : 1. That the prosecution has proved its case beyond reasonable doubt against the accused-appellant for the offence under sections 376 & 450 IPC. 2. That he relied on the statements of PW 3 Guddi and PW 5 Maluram and also on the statement of the prosecutrix PW 2 Birma Devi. He also sought corroboration from the medical evidence. Aggrieved from the said judgment and order dated 15.7.1999 passed by the learned Special Additional Sessions Judge (Women Atrocities); Sri Ganganagar, the present appeal has been filed by the accused- appellant. 3. In this appeal, the following submissions have been made, by the learned counsel for the accused-appellant : 1. He also sought corroboration from the medical evidence. Aggrieved from the said judgment and order dated 15.7.1999 passed by the learned Special Additional Sessions Judge (Women Atrocities); Sri Ganganagar, the present appeal has been filed by the accused- appellant. 3. In this appeal, the following submissions have been made, by the learned counsel for the accused-appellant : 1. That statement of the prosecutrix PW 2 Birma Devi suffers from so many infirmities and, therefore, the learned trial Judge has committed grave error in placing reliance on her statement. The infirmities pointed out by the learned counsel for the accused-appellant shall be discussed at proper place. 2. That the learned trial Judge further committed error in placing reliance on the statements of PW 3 Guddi and PW 5 Maluram. 3. That the present case it a false one, inasmuch as, before the alleged incident, prosecutrix PW 2 Birma Devi had stolen away the earing (bong) of accused-appellant's wife for which Panchayat was held in the village and the Panchayt had directed the prosecutrix PW 2 Birma Devi to return back the bong to accused-appellant's wife and since then, prosecutrix PW 2 Birma Devi had inimical relations with the accused-appellant and for that purpose, this false case has been lodged by PW 2 Birma Devi against the accused-appellant. 4. That no injuries are found on the hands of the prosecutrix PW 2 Birma Devi, though she has stated that during the struggle, her bangles of glass were broken and she received injuries and thus absence of injuries suggests that case is false one and rest injuries as mentioned in the injury report Ex.P/5 are of no use, inasmuch as, in the back of the report Ex.P/1, it has been clearly mentioned that she was having no injury on her person. Hence, from medical point of view also, it is a false case. 5. That there are material contradictions in the statements of the prosecution witnesses, which render the statement of the prosecutrix PW 2 Birma Devi unreliable. Hence, it is prayed that this appeal be allowed and the accused-appellant be acquitted of the charges framed against him. 4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Special Additional Sessions Judge (Women Atrocities), Sri Ganganagar. 5. Hence, it is prayed that this appeal be allowed and the accused-appellant be acquitted of the charges framed against him. 4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Special Additional Sessions Judge (Women Atrocities), Sri Ganganagar. 5. I have heard the learned counsel for the accused-appellant and the learned Public Prosecutor and perused the record of the case. 6. Before appreciating the contentions raised by the learned counsel for the accused-appellant, first medical evidence, which is found in the statement of PW 7 Dr. Harbans Khanna may be seen. 7. Dr. Harbans Khanna, PW 7 has stated in her statement that on 5.5.1997 he examined PW 2 Birma Devi and found following injuries on her person : 1. Bruise 5 cm x 1 cm left side of Breast. 2. Bruise 5 cm x 2.8 cm on Rt. side of Breast with linear abrasion two in number 5 cm at a distance of 1/2 cm. 3. Linear abrasions 3 cm, 3 cm below injury No. 1. 4. Linear abrasion 5 cm anterior aspect on Rt. Thigh. 5. Two abrasions 6 cm and 4 cm at a distance of 1 cm. 6. Linear Abrasion 5 cm on Abdomen. Pelvic Region. 7. Vagina admit two finger loose, laceration present on posterior vaginal wall. She has proved the injury report Ex.P/5. 8. Before proceeding further, salient features of the report Ex.P/1 lodged by PW 2 Birma Devi are mentioned here. 1. That on the date of occurrence i.e. on 3.5.1997, PW 4 Kashiram, husband of the prosecutrix PW 2 Birma Devi was not in the village. 2. That in the midnight at about 12.00, accused-appellant cane to the house of PW 2 Birma Devi and he closed her mouth by orni and at that time, he was having sword in his hands and he was in the state of intoxication. 3. That accused-appellant took her to another room and put her on the ground and committed rape on her. 4. That because her mouth was shut by orni, she could not make any hue and cry while rape was being committed on her by accused-appellant. 5. 3. That accused-appellant took her to another room and put her on the ground and committed rape on her. 4. That because her mouth was shut by orni, she could not make any hue and cry while rape was being committed on her by accused-appellant. 5. That during struggle, her bangles of glass were broken and after commission of rape on her by accused-appellant, she removed the omi and then made hue and cry and, thereafter, PW 5 Maluram came there and seeing him, accused-appellant ran away and while running, accused-appellant threatened that in case this incident is told to anybody, she will face the dire consequences. 6. That on 4.5.1997, her husband PW 4 Kashiram was called for and, thereafter, Panchayat was held, but accused-appellant did not attend the Panchayat. 7. That on the back of the report Ex.P/1, there is an endorsement by PW 6 Narendra Kumar Sharma, SHO that no visible injury was found on the hands of PW 2 Birma Devi. 9. Before proceeding further, it may be stated here that PW 2 Birma Devi is a married lady of 21 years of age and she has three children and thus, it can be said that she was a grown up lady on the date of alleged incident. In her statement recorded as PW 2, she has stated in examination-in-chief that after accused-appellant ran away, she called her Jeth Maluram, PW 5 and along with PW 5 Maluram, her sister PW 3 Guddi also came there. She has further stated that accused-appellant attended the Panchayat. In her cross-examination, she has admitted the following facts : 1. That at the time of commission of rape on her by accused-appellant, she did not make any hue and cry as accused-appellant was having sword in his hands. 2. That when accused-appellant committed rape on her, her mouth was shut with clothes. 3. That accused-appellant took her to another room where he committed rape on her and that process took four minutes. 4. That after commission of rape when accused-appellant left her room, then she made hue and cry. 5. That when accused-appellant put her on the ground, she did not receive any injury, but injuries were received by her on hands. 6. That she received so many injuries on her wrist because during struggle her bangles of glass were broken and blood also came from her hands. 7. 5. That when accused-appellant put her on the ground, she did not receive any injury, but injuries were received by her on hands. 6. That she received so many injuries on her wrist because during struggle her bangles of glass were broken and blood also came from her hands. 7. That accused-appellant attended the Panchayat which was held on the next day i.e. on 4.5.1997. 8. That it is also correct that in the report Ex.P/ 1, it has been mentioned that accused-appellant did not attend the Panchayat. 9. That at the time of alleged incident, she was wearing 24 bangles in one hand and 24 bangles in another hand and all bangles were broken during struggle. 10. That accused-appellant lodged a report in the Thana against her about the theft of long, but that incident took place after the present incident. 10. Another witnesses in the present case are PW 3 Guddi, who is sister of the prosecutrix PW 2 Birma Devi, PW 4 Kashi Ram, husband of PW 2 Birma Devi and PW 5 Maluram, who is brother of her husband i.e. PW 4 Kashiram and thus, PW 4 Kashiram and PW 5 Maluram are the brothers. 11. PW 3 Guddi has stated in her statement that when she came to the house of PW 2 Birma Devi alongwith PW 5 Maluram, accused-appellant was standing in Bakhal and nobody was there and, thereafter, they went to the house of Deva Ram, who is Mama of accused-appellant, for making complaint against accused-appellant. She has further stated that PW 4 Kashiram came on the next day of the alleged incident i.e. on 4.5.1997 and Panchayat was not attended by PW 4 Kashiram. She has further stated that the Panchayat was attended by Indras, Maniram, Bandhram, Kaluram, Manphool, Baluram and Tolaram, but accused-appellant did not attend the Panchayat. 12. PW 4 Kashiram is the husband of PW 2 Birma Devi and he was told by his wife about the alleged incident and, thereafter, report was lodged on 5.5.1997, though he came on 4.5.1997. He has admitted the following facts in his cross-examination: 1. 12. PW 4 Kashiram is the husband of PW 2 Birma Devi and he was told by his wife about the alleged incident and, thereafter, report was lodged on 5.5.1997, though he came on 4.5.1997. He has admitted the following facts in his cross-examination: 1. That he reached the village where PW 2 Birma Devi was living on 4.5.1997 and, thereafter, Panchayat was called for, but people of the village did not attend the Panchayat and Panchayat was being attended by him, his brother PW 5 Maluram, his wife PW 2 Birma Devi etc. etc. But, accused-appellant did not attend the Panchayat. 2. That it is correct to say that before two years back of this incident, loong of the wife of the accused-appellant was stolen away and his wife PW 2 Birma Devi was charged for that and loong was returned by his wife PW 2 Birma Devi. 13. PW 5 Maluram has also narrated the incident in the same manner as alleged by the above two witnesses i.e. PW 3 Guddi and PW 4 Kashiram. He has admitted that on 4.5.1997, PW 4 Kashiram came in the village. 14. PW 6 Narendra Kumar Sharma was SHO, Police Station Padampur at the relevant time and he conducted the investigation in the present case. He has admitted in his statement that when the report was lodged by PW 2 Birma Devi, no visible injury was found on the person of PW 2 Birma Devi. 15. Before critical examination of the evidence produced by the prosecution, it may be stated here that corroboration of the testimony of the prosecutrix in rape case is not required as a rule of law. But, corroboration should ordinarily be required in the case of woman having attained majority and who is habitual to sexual intercourse as in such cases there is likelihood of her having levelled such an accusation on account of instinct of self-preservation or when the probabilities factor is found to be out of time. Corroboration may be by facts and circumstances. But, if the evidence of the victim does suffer from any basic infirmity and the probabilities factors does render it unworthy of credence, in such cases, corroboration is required and statement of victim can be disbelieved. 16. Corroboration may be by facts and circumstances. But, if the evidence of the victim does suffer from any basic infirmity and the probabilities factors does render it unworthy of credence, in such cases, corroboration is required and statement of victim can be disbelieved. 16. In a case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. The evidence of prosecution witnesses cannot be accepted merely because an accused person has not been able to say as to why they have come forward to depose, against him. However, great the suspicion against the accused and however strong the moral belief and conviction of the Judge, unless the offence of the accused is established beyond reasonable doubt or beyond the possibility of reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring the offence home to the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. 17. Keeping the above principles in mind, the statement of the prosecutrix PW 2 Birma Devi and prosecution case is being examined. 18. In my considered opinion, because of the following reasons, the statement of PW 213irma Devi suffers from some infirmities and thus, it cannot be relied upon to base conviction of the accused-appellant for the offence under section 376 IPC : 1. That in the report Ex.P /1 lodged by PW 2 Birma Devi, there is a mention of the fact that accused-appellant did not attend the Panchayat, but PW 2 Burma Devi in her statement categorically states that accused-appellant attended the Panchayat. PW 3 Guddi and PW 4 Kashi Ram state that accused-appellant did not attend the Panchayat. Thus, there is material contradiction between the statement of prosecution witnesses on the point whether accused-appellant attended the Panchayat which was held on the next day on 4.5.1997. 2. PW 3 Guddi and PW 4 Kashi Ram state that accused-appellant did not attend the Panchayat. Thus, there is material contradiction between the statement of prosecution witnesses on the point whether accused-appellant attended the Panchayat which was held on the next day on 4.5.1997. 2. That from the report Ex.P/1, it appears that PW 4 Kashiram, husband of PW 2 Birma Devi attended the Panchayat, but PW 2 Birma Devi in her statement categorically states that on 4.5.1997 Panchayat was held and when no decision was taken in the Panchayat, she went to call her husband and her husband did not attend the Panchayat. But, on the contrary, PW 4 Kashiram, husband of PW 2 Birma Devi states that as soon as he came to the village, a Panchayat was held and he attended the Panchayat. Thus, on this point also, there is material contradictions between the statements of PW 2 Birma Devi and PW 4 Kashiram. 3. That PW 4 Kashiram, in his statement, has clearly admitted that before the alleged incident, loong of the wife of the accused-appellant was stolen and allegations of theft of loong were made against PW 2 Birma Devi, who returned the loong to the wife of accused-appellant. But, PW 2 Birma Devi, in her statement, states that such incident took place after the alleged incident. Thus, it has been established by the prosecution witnesses that there was enmity between the accused-appellant and PW 2 Birma Devi because before the alleged incident, a report of theft of loong of accused-appellant's wife was lodged in the Thana against PW 2 Birma Devi by accused-appellant and PW 2 Birma Devi returned the said loong. Thus, it has been established by the prosecution witnesses that there was enmity between the accused-appellant and PW 2 Birma Devi because before the alleged incident, a report of theft of loong of accused-appellant's wife was lodged in the Thana against PW 2 Birma Devi by accused-appellant and PW 2 Birma Devi returned the said loong. In this respect, statement of DW 1 Sarvati is also worth quoting, where she has narrated the story of taking away of loong of the accused-appellant's wife by PW 2 Birma Devi and she has stated that she is neighbour of PW 2 Birma Devi and had an incident of rape would have taken place, she would have certainly heard that incident in night and she has further stated that when PW 2 Birma Devi returned the loong, she threatened that she would take revenge and, therefore, in this background, alleged incident of rape, if viewed, creates doubt whether it had taken place or not, especially PW 2 Birma Devi though admitting this fact, but postponed this fact for two years, while her husband PW 4 Kashiram has frankly admitted that this incident took before the alleged incident. 4. That there is a clear mention on the back of the report Ex.P/1 by PW 6 Narendra Kumar Sharma, SHO that no visible injuries were found on the hands of PW 2 Birma Devi. But, when there is a statement of PW 2 Birma Devi that her bangles of glass were broken, some injuries must have been found on her hand, but since they are missing, it creates doubt whether alleged incident had taken place or not. So far as the injuries which are mentioned in her injury report Ex.P / 5 are concerned, it may be stated here that first these injuries do not find place on the back of the report Ex.P/1 and that PW 4 Kashi Ram came on 4.5.1997 and report of the alleged incident was lodged on 5.5.1997 in the evening and thus, when there is enmity between the accused-appellant and PW 2 Birma Devi as stated above, there is every possibility that injuries which have been found on the person of PW 2 Birma Devi could have been self inflicted and this possibility cannot be ruled out. 5. 5. That PW 2 Birma Devi has categorically stated that accused-appellant was having sword in his one hand while committing rape on her and her mouth was shut by orni, when she is a grown up lady of 21 years of age having three children and thus, to say that in such manner rape would have been committed on her, appears to be doubtful. From this point of view also, prosecution case comes within the shadow of suspicion. 6. That another factor is delay in lodging the report Ex.P /1 by PW 2 Birma Devi. The Court is aware that in rape cases, especially in India ladies and mother of the victim wait for arrival of the prosecutrix's husband or father, as the case may be and, thereafter, report is lodged. In the present case, there is evidence that PW 4 Kashiram, husband of PW 2 Birma Devi came on 4.5.1997, but report was lodged on 5.5.1997 in the evening. Thus, in this case, delay when it is being tested and examined looking to the facts and circumstances just stated above, it appears to be fatal to the prosecution case, especially when after the arrival of PW 4 Kashiram, Panchayat was held and when no decision was taken in the Panchayat, the report should have been lodged immediately by PW 2 Birma Devi, but waited for next day upto evening, it creates doubt. Hence, delay in the present case is fatal. 7. That apart from the above, there is one more aspect which should be discussed and the same is that apart from PW 2 Birma Devi, PW 3 Guddi, PW 4 Kashi Rim and PW 5 Maluram, who are close relatives, no other witnesses have been produced though there is evidence that some persons have attended the Panchayat and even Deva Ram, Mama of the accused-appellant, to whom complaint was made, has not been produced. 19. Thus, the above factors make the prosecution case doubtful and this is a fit case where accused-appellant is entitled to benefit of reasonable doubt, as it cannot be said that statement of PW 2 Birma Devi does not suffer from any basic infirmity, but on the contrary, it appears that it suffers from so many basic infirmities and thus, put whole prosecution case under the shadow of suspicion. 20. 20. Thus, after appreciating the evidence, it appears that the prosecutrix PW 2 Birma Devi in the present case has given go-bye to the version in material particulars as recorded in FIR and in her statement recorded in Court in all material particulars. Hence, no reliance can be placed on the statement of PW 2 Birma Devi. 21. In this respect, it may be stated here that suspicion however great cannot take the place of proof and conviction cannot be based on suspicion. In the present case, there appears to be reasonable possibility of the appellant having been implicated due to enmity which has come in existence from the statement of PW 4 Kashiram, husband of the prosecutrix PW 2 Birma Devi. Thus, it cannot be ruled out that because of this enmity, to seek personal vendetta, accused-appellant has been falsely implicated. 22. Hence, in these circumstances, it is a fit case where accused- appellant is entitled to benefit of doubt and thus, findings of the learned Special Additional Sessions Judge (Women Atrocities), Sri Ganganagar convicting accused-appellants under sections 376 & 450 IPC are liable to be set aside.In this result, the appeal filed by the accused-appellant-Sahab Ram is allowed and the judgment and order dated 15.7.1999 passed by the learned Special Additional Sessions Judge, Sri Ganganagar are set aside and the accused-appellant is acquitted of the charges framed against him.Since accused-appellant-Sahab Ram is in jail, he be released forthwith, if not required in any other case.Appeal allowed. *******