Judgment B.N.P.Singh, J. 1. Both the appeals which arise from a common judgment dated 5.8.2000 rendered in Sessions Trial No. 76 of 1997 by Additional Sessions Judge I, Katihar were heard together and are being disposed of by this order. 2. The appellants along with Pratima Devi were tried for the offence under Section 120B of the Indian Penal Code. The appellants went for trial also under section 376 of the Indian Penal Code. The trial court, however, for paucity of evidence against Pratima Devi, while acquitted her of the charge, rendered verdict of guilt against the appellants and sentenced them to undergo rigorous imprisonment for seven years. The appellants were also sentenced to pay a fine of Rs. 1000/- each on that count, in default of which they were to undergo rigorous imprisonment for three months. The trial court found appellants guilty also under Section 450 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for three years and also to pay a fine Of Rs. 1000/- each on that count, in default of which they were to undergo rigorous imprisonment for three months with a direction that all the sentences shall run concurrently. 3. The factual matrix are that in the night of 21st September, 1996 at about 11,00 P.M. while Asha Kumari P.W. 2 and Manju Devi P.W. 1 were fast asleep in inner appartment of house, dosing the door planks, the appellants having broke open the door planks gained their access to their room and began to tease them. The narrations made by Asha Kumari in her early version before the police was that they gagged their mouths, pursuant to which Sanjay Kumar Yadav lifted her from the room, took her to the house of Anirudh Yadav, where on coercing, ravished her. The allegations attributed to the wife of Anirudh Yadav was that she put off the light that was burning in the room. The narrations made by Asha Kumari would further disclose that shortly after the incident, which happened with her, when she came to her house she noticed Manju Devi naked who was weeping disclosing her woes and narrating that Anirudh Yadav had committed sexual assault on her. Both Manju Devi and Asha Kumari shortly thereafter went to the house of Sahdeo Yadav, their neighbour, who gave clothes to them to cover their persons. Both Manju Devi and Asha Kumari shortly thereafter went to the house of Sahdeo Yadav, their neighbour, who gave clothes to them to cover their persons. When father of Asha Kumari came back, she narrated her woes to him pursuant to which the aggrieved prosecutrix took recourse to police authority and on these narrations, of Asha Kumari, first information report was drawn up at Kadwa police station which is the sheet anchor of the prosecution case. The investigation commenced and in the process of collection of evidences, the Investigating Officer recorded statement of witnesses under Section 161 of the Code of Criminal Procedure, got the victims clinically examined by the lady doctor, seized wearing apparels of both the prosecutrix and on conclusion of investigation laid chargesheet before the court against both the appellants and also Pratima Devi. In the eventual trial, the prosecution examined altogether six witnesses and the trial court placing implicit reliance on the testimony of witnesses as has been discussed, while acquitted Pratima Devi of the charge framed against her, rendered verdict of guilt against the appellants and sentenced them in the manner stated above. 4. Now adverting to the evidences placed on the record, one would find Asha Kumari P.W. 2, who was the author of the fardbeyan narrating her woes before the court with some variations which she rendered before the police. She would narrate before the court that in the night of the incident when she was along with Manju Devi in the house, at the dead of night, some one knocked the door and gave push, when the door planks got broken. She got awakened and noticed Anirudh Yadav and one another person in her house. Since other person who was accompanied by Anirudh Yadav had covered his face with cloth, she failed to identify him. The allegation attributed to Anirudh Yadav was that shortly after he gained access in the room, began to tease Manju Devi. She was however lifted by other unidentified person to the house of Anirudh Yadav, where she was ravished. When she came back to her house, noticed Manju Devi only with inner garment who inter alia disclosed her about Anirudh Yadav having committed sexual assault on her. She was however lifted by other unidentified person to the house of Anirudh Yadav, where she was ravished. When she came back to her house, noticed Manju Devi only with inner garment who inter alia disclosed her about Anirudh Yadav having committed sexual assault on her. Thereafter, both of them went to the house of Sahdeo Yadav and narrated their woes to his wife who supplied clothes to them to cover their persons and for the rest of the night they remained in her house. After her father came back to her house, she stated to have narrated her woes to him, pursuant to which she took recourse to police and rendered her statement giving full particulars of the incident. The Police Officer seized their wearing apparels which bore blood stains and also the sign of some liquid for which seizure memo was prepared. The narrations made by Manju Devi RW. 1 are more or less in similar terms with variation of complicity of Sanjay Yadav. She would state before the court that while she along with Asha Kumari was fast asieep in the house, some one knocked the door when door plank was broken. It was Anirudh Yadav who along with an unidentified person gained his access in her room and began to tease her. After she resorted to protest, Anirudh Yadav gagged her mouth and committed sexual assault on her. About Asha Kumari she would allege that a person who was accompanied by Anirudh Yadav lifted Asha Kumari and took her out of the room. She would state that despite all resistance made by her, she was ravished by Anirudh Yadav. After Anirudh Yadav had left the hosue, Asha Kumari came naked with blood stains on her wearing apparels. When her father-in-law came she narrated her woes to him and she would also state about their stay in the night in the house of Sahdeo Yadav who gave clothes to them to cover their persons. Urmiia Devi P.W. 3 wife of Sahdeo Yadav turned volte face to the prosecution and would show ignorance about Asha Kumari and Manju Devi having visited her house and narrating their woes to her. Umesh Lal Yadav P.W. 4 had lent assurance to the incident about committing sexual assault on Asha Kumari and Manju Devi. Urmiia Devi P.W. 3 wife of Sahdeo Yadav turned volte face to the prosecution and would show ignorance about Asha Kumari and Manju Devi having visited her house and narrating their woes to her. Umesh Lal Yadav P.W. 4 had lent assurance to the incident about committing sexual assault on Asha Kumari and Manju Devi. He would further make an explicit accusation against Anirudh Yadav alone who was suggested to have committed sexual assault on Manju Devi. Dr. Minni Rani RW. 5 stated to have clinically examined both the prosecutrix and would state that while on the private part of Asha Kumari she noticed some injury, there was no mark of physical violence on the person of Manju Devi though her old torn hymen was found ruptured. No spermatozoa was, however, seen in the swab. This is all the evidence that has been adduced on behalf of the prosecution. 5. The finding recorded by the trial court rendering verdict of guilt against appellant Anirudh Yadav is sought to be assailed by the learned counsel appearing for the appellant on the premises that though Manju Devi was shown to have been subjected to sexual assault for more than half an hour despite all resistance by her, it was quite unlikely that there would not be (sic) of violence either on her person or on private part, which has been the finding recorded by the doctor who clinically examined her. The contentions were raised that though both the prosecutrix claimed to have visited house of Sahdeo Yadav in the night and narrated their woes to his wife, who also supplied clothes to cover their persons, as they were naked, wife of Sahdeo Yadav would not lend assurance to the prosecution about they having visited her house and attributing any allegation against any of the appellants. It is urged that barring the statement of the prosecutrix, no person of the vicinity was ever examined at trial to lend assurance to the prosecution allegation attributed to the appellant. The contention raised at Bar on behalf of Sanjay Yadav was that barring the narrations made by Asha Kumari in the first information report, no evidence of positive nature was ever led to persuade the trial judge to render verdict of guilt against him. The contention raised at Bar on behalf of Sanjay Yadav was that barring the narrations made by Asha Kumari in the first information report, no evidence of positive nature was ever led to persuade the trial judge to render verdict of guilt against him. Learned counsel citing some observations made in the impugned judgment and also the finding recorded by the trial court on narrations made by Asha Kumari in the first information report, which was admittedly not a piece of evidence, would urge that even the statement recorded by the Police Officer under Section 161 of the Code of Criminal Procedure in the police case diary, were pressed into service by the trial court to draw a conclusion about the guilt of the accused which was against well recognized principle of law. 6. Though allegations were attributed to Sanjay Yadav also by Asha Kumari about taking her to the house of Anirudh Yadav where she was subjected to sexual assault, it would seem that the prosecutrix in her evidence before the court had resiled from the version which she rendered before the police, making no such allegation against Sanjay Yadav. She would narrate that she was lifted by a stranger who had covered his face and he was not the appellant, Sanjay Yadav. Similar narrations were made by Manju Devi also about she having not identified Sanjay Yadav, as she alleges that Asha Kumari was lifted by the person who was accompanied by Anirudh Yadav. Considering evidences of both the prosecutrix one cannot help feeling that the conclusion drawn by the trial court recording verdict of guilt about Sanjay Yadav was not based on the evidences placed on the record which ought not have been taken into consideration by him. Considering evidences of both the prosecutrix one cannot help feeling that the conclusion drawn by the trial court recording verdict of guilt about Sanjay Yadav was not based on the evidences placed on the record which ought not have been taken into consideration by him. Some finding recorded by the trial court cannot be appreciated which are re-produced below: "I do not understand as to why these two minor girls will falsely implicate Anirudh Yadav and Sanjay Yadav in this case at the time of lodging F.I.R. A perusal of the FI.R. shows that this is the natural statement of the victims about the alleged rape." Least said is better about observation made by the trial court, as if any one can be contradicted by the statement made in the first information report, it was Asha Kumari who was its author and it was never the case of the prosecution that both the prosecutrix, before commencement of investigation, had made abetments before the police in the first information report, attributing allegations to both the appellants. 7. Further observations were made by the trial court in the following manner: "The two victims of this case are the most important witnesses and they are P.W. 1 and P.W. 2. They both state that rape was committed on them...ln the F.I.R. first informant identified the rapist and it was accused Sanjay Kumar Yadav. Now in this circumstance I am of the opinion that the first version of the alleged occurrence which is clear from the F.I.R. has to be relied upon." 8. These findings recorded by the trial court would manifestly suggest that notwithstanding there being paucity of evidence against involvement of Sanjay Yadav, the finding of guilt was recorded against her was recorded on assigning reasons that belated attempts were made by the victims to exonerate him, though explicit accusations were attributed to Sanjay Yadav by Asha Kumari in the first information report. It is admitted that none of the prosecutrix had made any attribution in their evidences against Sanjay Yadav about he being among the rapists. Even Umesh Lal Yadav who stated to have learnt about the incident, did not state any accusation, made before him by the prosecutrix about involvement of Sanjay Vadav. True it is that the doctor who clinically examined Asha Kumari noticed some injury on her private part but that accusation was attributed to a stranger. Even Umesh Lal Yadav who stated to have learnt about the incident, did not state any accusation, made before him by the prosecutrix about involvement of Sanjay Vadav. True it is that the doctor who clinically examined Asha Kumari noticed some injury on her private part but that accusation was attributed to a stranger. However, in view of the evidence of the prosecutrix and also the finding recorded by the doctor, the factum of sexual assault on them cannot be possibly questioned. However, regard being had to the evidences placed on the record, Sanjay Yadav cannot be saddled with the allegation of committing rape on Asha Kumari and hence the finding recorded by the trial court about Sanjay Yadav is not sustainable in law and is accodingly set aside. 9. So far the complicity of Anirudh Yadav was concerned, one cannot help feeling that there was overwhelming evidence as against him. Both the prosecutrix would allege about Anirudh having gained his access in her house pursuant to which a stranger took Asha Kumari to the house of the latter. Manju Devi RW. 1 had an awful story to narrate about commission of rape on her by Anirudh Yadav. She also narrated her woes to Asha Kumari when she came back from the hosue of Anirudh Yadav on being subjected to sexual assault by an unidentified person. 10. Two defence witnesses were also examined at trial and the trial court while recording guilt against Sanjay Yadav pressed into services evidences rendered by them and though these two witnesses would state about some wrongful act committed by the appellants but that was not about committing sexual assault on the prosecutrix. True it is that barring the evidences of the prosecutrix, no evidence of any independent witness was recorded except that of Umesh Lal Yadav, P.W. 4. But as has been the evidence both Asha Kumari and Manju Devi were alone in the house and it was only on arrival of Umesh Lal Yadav that the incident was narrated to him. True it is that barring the evidences of the prosecutrix, no evidence of any independent witness was recorded except that of Umesh Lal Yadav, P.W. 4. But as has been the evidence both Asha Kumari and Manju Devi were alone in the house and it was only on arrival of Umesh Lal Yadav that the incident was narrated to him. Though no mark of violence or sign of commission of sexual assault was noticed by the doctor who examined Manju Devi, this fact cannot be lost sight of that Manju Devi was shown to have been subjected to sexual assault on 21.9.1996 and it was not before 23rd September, 1996 when she was clinically examined by the doctor and in view of the belated examination of the prosecutrix possibility of absence of sign of commission of sexual assault cannot be ruled out and that apart there is no rule of law that the evidence of the prosecutrix requires corroboration to merit reliance as she is at par with the injured witnesses and her evidence has to be accepted if she is found to be true on material particulars. 11. Having given my anxious consideration to the evidence placed on the record and also regard being had to the contentions raised at Bar on behalf of the appellants, while Sanjay Yadav as has been discussed, is acquitted of the charge, the finding recorded against Anirudh Yadav did not merit interference. Learned counsel appearing fa Anirudh Yadav seeks indulgence of the court in the matter of awarding sentence against him and it is urged that he is in custody for the last five years. However, considering the seriousness of the accusation, I find no mitigating evidence to reduce the sentence which does not appear to be excessive. The bail bonds of appellant Sanjay Yadav is discharged. While Cr. Appeal No. 296 of 2000 succeeds, Cr. Appeal No. 308 of 2000 is dismissed.