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Himachal Pradesh High Court · body

2003 DIGILAW 142 (HP)

RATTAN LAL v. STATE OF H. P.

2003-06-10

M.R.VERMA

body2003
JUDGMENT M.R. Verma, J.—Since both these appeals arise out of the same judgment of conviction dated 6.5.2002 passed by the learned Sessions Judge, Bilaspur, therefore, are being disposed of by this common judgment. 2. Case of the prosecution is that the prosecutrix (PW-3) a student of 8th standard and aged about 15 years in July, 1999 during vacations in the School was present in her house in village Mandi Manwan. Her younger brother Devinder and younger sister Karamjit were also present in the house. Their parents were away from the house. The prosecutrix was washing the utensils in the kitchen. The appellants/accused (hereafter referred to as the accused) entered the house, gave toffees to younger brother and sister of the prosecutrix and asked them to go out of the room and both the children went out of the room. Thereafter accused Rattan Lal forcibly carried the prosecutrix from the Kitchen and put her on a cot while accused Tara Chand stood guard at the door. Accused Rattan Lal tied the hands of the prosecutrix with a rope and thereafter committed rape on her. Thereafter accused Rattan Lal stood at the door of the room and accused Tara Chand committed rape on the prosecutrix. The prosecutrix tried to raise hue and cry but her mouth was gagged with a Chuni. After commission of the rape, both the accused threatened the prosecutrix that in the event of her disclosing the occurrence, they would burn her and her family members. Parents of the prosecutrix returned, home at about 6 p.m. when the prosecutrix informed them about the rape having been committed on her by the accused. Thereafter, her step-father Rup Ram (PW-5) called Dhani Ram father of accused Rattan Lal, whose house is close to the house of the prosecutrix, to his house and complained about the act of accused Rattan Lal. Dhani Ram, however, did not admit the allegations and told PW-5 to call accused Tara Chand to find out the truth Accused Tara Chand, however, was not available and had left with the truck. Therefore, PW-5 at the instance of Dhani Ram decided not to report the matter to the police. Accused Tara Chand returned to the village with the truck on 4.6.2000. PW-5 then enquired from him in the presence of other villagers about the incident of rape. Therefore, PW-5 at the instance of Dhani Ram decided not to report the matter to the police. Accused Tara Chand returned to the village with the truck on 4.6.2000. PW-5 then enquired from him in the presence of other villagers about the incident of rape. Accused Tara Chand admitted the commission of rape on being prompted by accused Rattan Lal and tendered apology which was reduced into writing Ext. PG. Amongst others the prosecutrix, her mother Muninder Kaur (PW-4), Surjit Singh (PW-6), Daulat Ram, Nand Lal, Mali Ram, Ravi Chandel, Khursheed Mohammad and Razak Mohammad were also present. On inquiries made by PW-4 from accused Rattan Lal about the occurrence, his father Dhani Ram intervened and assaulted PW-4 and asked his son accused Rattan Lal to run away. On 11th and 12th October, 2000 the accused alongwith four or five other persons at about 9.30 a.m. and 4.30 p.m. came in a vehicle to village Mandi Manwan/Raghunathpura when the prosecutrix used to go to and come back from School and they forcibly tried to take her away in the vehicle with intention to commit rape and thus they rendered it difficult for the prosecutrix to go to the School. The matter was then reported to the police by PW-5 but no action was taken in the matter. A complaint was then filed by the prosecutrix through her mother (PW-4) in the Court of the learned Chief Judicial Magistrate, Bilaspur who directed registration of a case on the basis of the said complaint and as a consequence FIR Ext. PK under Sections 376, 354, 506 and 34.IPC was recorded at police station, Bilaspur and the investigation followed. During investigation, copy of the document containing admission of the commission of the offence by the accused Ext. PE was taken in possession by the Investigating Officer (PW-13) vide Memo Ext. PG. Birth certificates of the prosecutrix Ext. PH and Ext. PJ respectively from the School and the Panchayat were also taken in possession. Dr. Anita Sharma (PW-1) who medically examined the prosecutrix and also procured the opinion of the Gynecologist and Radiologist issued the M.L.C. Ext. PA and opined that the possibility of rape having been committed on the prosecutrix could not be ruled out and her skeleton age was less than 16 years but more than 14 years. Dr. Anita Sharma (PW-1) who medically examined the prosecutrix and also procured the opinion of the Gynecologist and Radiologist issued the M.L.C. Ext. PA and opined that the possibility of rape having been committed on the prosecutrix could not be ruled out and her skeleton age was less than 16 years but more than 14 years. At the time of medical examination of the prosecutrix, PW-1 took vaginal and urethra smear slides which were sealed and sent to State Forensic Science Laboratory for analysis and the report received therefrom is Ext. PB according to which nothing incriminating was found in the vaginal and urethral smear. Specimen signatures of accused Tara Chand Exts. PO, PO/1 to PO/5 were obtained in the presence of a Judicial Magistrate (PW-14) and as per the opinion Ext PP given by Vishveshwar Sharma, Scientific Officer (PW-11) the specimen signatures tallied with the signatures of accused Tara Chand on Ext. PG. The accused on their arrest were also got medically examined and as per the MLCs Ext. PL and Ext. PM respectively about the medical examination of accused Tara Chand and Rattan Lal issued by Dr. C.R. Verma (PW-10) both the accused were found fit to perform sexual intercourse. 3. On being satisfied of the commission of the offence under Sections 376/34 and 506/34 IPC by the accused the Officer-Incharge accordingly submitted a charge-sheet and the learned Sessions Judge Bilaspur accordingly framed charges against the accused to which they pleaded not guilty and claimed to be tried. 4. To prove the charges against the accused, prosecution examined 14 witnesses. Statements of the accused were recorded under Section 313 Cr.P.C. wherein they denied the prosecution case as incorrect and false. Accused Rattan Lal further claimed that the case has been made out because of enmity as a land dispute exist between his father and father of the prosecutrix and litigation is going on. It is further claimed that Dhani Ram made an application to the Deputy Commissioner Bilaspur for inquiry into the false allegations levelled against Rattan Lal by the parents of the prosecutrix and during such inquiry they conceded the allegations to be false and tendered apology. The accused, however, did not lead any defence evidence. 5. It is further claimed that Dhani Ram made an application to the Deputy Commissioner Bilaspur for inquiry into the false allegations levelled against Rattan Lal by the parents of the prosecutrix and during such inquiry they conceded the allegations to be false and tendered apology. The accused, however, did not lead any defence evidence. 5. On the basis of the evidence on record, the learned Sessions Judge convicted both the accused under Sections 376 and 506 read with Section 34 IPC and sentenced each of them to rigorous imprisonment for 7 years and to pay fine of Rs. 10,000 and in default of payment to undergo imprisonment for six months under Section 376 IPC read with Section 34 IPC and rigorous imprisonment for two years under Section 506 IPC read with Section 34 IPC. 6. Being aggrieved, accused Tara Chand has preferred Criminal Appeal No. 230 of 2003 and accused Rattan Lal has preferred Criminal Appeal No. 537 of 2002. 7. I have heard the learned Counsel for the accused and the learned Deputy Advocate General for the respondent/State and have also gone through the records. 8. It was contended by the learned Counsel for the accused that the statement of the prosecutrix in the case is highly unreliable and further there is nothing cogent and reliable on the record to lend assurance to her statement. There is no specific medical opinion given by a competent person to support the statement of the prosecutrix. Enmity and litigation between father of accused Rattan Lal and the parents of the prosecutrix is a fact admitted by the material prosecution witnesses including the parents of the prosecutrix. The document allegedly executed by accused Tara Chand Ext. PG had been brought about by use of force and the accused was beaten by so many persons present to make him to sign it. Therefore, this document is also of no help to the prosecution. In the totality of the circumstances, including the delay in reporting the matter to the police and tendering of apology by PW-4 for making false allegations the charges against the accused are not proved, therefore, their conviction and sentences as awarded, are liable to be set aside and they are entitled to be acquitted. 9. In the totality of the circumstances, including the delay in reporting the matter to the police and tendering of apology by PW-4 for making false allegations the charges against the accused are not proved, therefore, their conviction and sentences as awarded, are liable to be set aside and they are entitled to be acquitted. 9. On the other hand, the learned Deputy Advocate General ha4 contended that the delay in reporting the matter is duly explained on the ground that the parents of the prosecutrix did not want to give publicity to their daughter having been raped and it was for this reason that at one point of time it was thought proper not to report the commission of the rape to any quarter. However, when the accused persisted in their intention to repeat their acts of rape the matter had to be reported to the police which did not take action in the matter, therefore, a complaint had to be lodged. Thus, the delay in lodging the complaint against the accused persons is not fatal to the prosecution case. It was further contended that the statement of the prosecutrix is quite natural, confidence inspiring and capable of being acted upon to sustain conviction of the accused. Moreover, her statement is corroborated by her parents to whom she narrated the incident immediately after the occurrence and is also further supported by the medical opinion that possibility of rape having been committed on the prosecutrix could not be ruled out. Therefore, urged the learned Deputy Advocate General, the impugned conviction and sentences do not call for any interference. 10. By now it is well settled that conviction of a person accused of the commission of rape can be based on the sole testimony of the prosecutrix because she is not an accomplice but victim of the offence, hence, the injured person. Her evidence cannot be suspected also for the reason that no self-respecting woman will come forward to lower her dignity and honour by making false allegations of rape on her. It is also, however, equally settled that conviction can be based on the statement of the prosecutrix only if her evidence is cogent, reliable and confidence inspiring. In case her evidence is not so, the Court will have to look for some material on record lending assurance short of corroboration to her testimony. It is also, however, equally settled that conviction can be based on the statement of the prosecutrix only if her evidence is cogent, reliable and confidence inspiring. In case her evidence is not so, the Court will have to look for some material on record lending assurance short of corroboration to her testimony. In case there is no other independent and reliable evidence to lend assurance to the truthfulness of the evidence of the prosecutrix it will be unsafe to base a conviction on her non-confidence inspiring evidence. 11. In Om Prakash v. State of H.P, 2000 Cri. L.J. 1591, a Division Bench of this Court found the statement of the prosecutrix highly suspicious and held as under :— "19. In view of what has been stated above, the statement of the prosecutrix is not of the nature which may require some assuring evidence only to rely but is such which cannot be relied upon unless corroborated by independent evidence on all material particulars." It was further held :— "34. In conclusion it can be safely aid that in this case the statement of the prosecutrix does not inspire confidence and is, therefore, unreliable nor it is corroborated by the other evidence to assure credence to it. Therefore, the prosecution has failed to prove the charge against the accused, thus the impugned judgment is not sustainable." 12. In Dalip and another v. State of M.P., 2002 SCC (Cri.) 592, the Honble Apex Court held as follows :— "12. The law is well settled that the prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon and made the basis of conviction unless corroborated in material particulars. However, the rule about the admissibility of corroboration should be present to the mind of the Judge. In State of H.P. v. Gian Chand, (2001) 6 SCC 71: 2001 SCC (Cri) 980, on a review of decisions of this Court, it was held that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc., if the same is found to be natural, trustworthy and worth being relied on." It was further held :— "14. The Court is finding it difficult to accept the truthfulness of the version of the prosecutrix that any sexual assault as alleged was committed on her in view of the fact that her narration of the incident becomes basically infirm on account of being contradicted by the statement of her own aunt and medical evidence and the report of the Forensic Science Laboratory The defence has given suggestion in cross-examination for false implication of the accused persons which, however, have not gone beyond being suggestions merely. It is not necessary for us to dwell upon further to find out the probability of truth contained in the suggestions because we are not satisfied generally of the correctness of the story as told by the prosecutrix. We find it difficult to hold the prosecutrix in the case as one on whose testimony an implicit reliance can be placed. 15. For the foregoing reasons the appeals are allowed. The conviction of the accused appellants as recorded by the trial court and upheld by the High Court is set aside. The accused appellants are acquitted of the charges framed against them." 13. In Vimal Surcsh Kamble v. Chaluverapinake Apal S.P. and another, 2003 SCC (Cri.) 596, the Honble Apex Court in a case of acquittal of the accused by High Court in a rape case, held as under :— "21. On an overall appreciation of the evidence of the prosecutrix and her conduct we have come to the conclusion that PW 1 is not a reliable witness. We, therefore, concur with the view of the High Court that a conviction cannot be safely based upon the evidence of the prosecutrix alone. It is no doubt true that in law the conviction of an accused on the basis of the testimony of the prosecutrix alone is permissible, but that is in a case where the evidence of the prosecutrix inspires confidence and appears to be natural and truthful. The evidence of the prosecutrix in this case is not of such quality, and there is no other evidence on record which may even lend some assurance, short of corroboration that she is making a truthful statement. We, therefore, find no reason to disagree with the finding of the High Court in an appeal against acquittal. The evidence of the prosecutrix in this case is not of such quality, and there is no other evidence on record which may even lend some assurance, short of corroboration that she is making a truthful statement. We, therefore, find no reason to disagree with the finding of the High Court in an appeal against acquittal. The view taken by the High Court is a possible, reasonable view of the evidence on record and, therefore, warrants no interference. This appeal is dismissed." 14. A similar view has been taken by this Court in case Jeet Ram v. State of H.P. (Criminal Appeal No. 129 of 2002, decided on 19.5.2003). 15. It is in view of the above settled position in law that these appeals have to be examined. 16. There is no dispute about the date of birth of the prosecutrix which is 9.4.1985 as per the certificate Ext. PH issued by Vidhya Mehta (PW-7) on the basis of the admission and withdrawal of the prosecutrix as a student and the birth certificate Ext. PJ issued by Vijay Kumari (PW-8) as per the Death and Birth record maintained by the concerned Panchayat. As per these certificates the age of the prosecutrix at the time of the alleged occurrence works out to a little more than 14 years but less than 15 years. Therefore, the only question which requires determination in these appeals is whether the accused or anyone of them committed sexual intercourse with the prosecutrix. 17. The prosecutrix (PW-3) in her statement though has stated that she was subjected to sexual intercourse by the accused persons one after the other without her consent and by use of force but her statement does not appear to be cogent, reliable and confidence inspiring for various reasons. It is admitted case of the prosecutrix that when the accused persons came to her house her younger brother aged 5 years in the year 2002 and her sister aged 4 years in the same year and thus about two and half years and one and half years at the relevant time were present in the room. Her version is that the accused gave them Toffees and asked them to move out of the room and they did so. Her version is that the accused gave them Toffees and asked them to move out of the room and they did so. Keeping in view the age of these children at the relevant time it seems improbable that such small children left the room or the asking of the accused. 18. It is also stated by the prosecutrix that after her removal from kitchen to the cot but before committing the crime, accused Rattan Lal tied her hands with a rope and gagged her mouth with a Chuni and then committed rape on her. Evidently, as per her own saying her hands were tied and mouth was gagged only after she had been picked up and removed by accused Rattan Lal from the kitchen room to the room where the cot was lying. The prosecutrix thus had the time and opportunity to raise hue and cry when she was physically lifted and taken to the cot and also during the period when her hands were being tied with rope. Thus, this part of the version of the prosecutrix is also not confidence inspiring. 18-A. The prosecutrix has further stated that she divulged the occurrence to her parents on the same day at about 6 p.m. when they returned home and her step father PW-5 then went to the house of accused Rattan Lal which is in the close vicinity and informed Dhani Ram father of accused Rattan Lal about the occurrence which was denied by Dhani Ram and also asked PW-5 to call accused Tara Chand but he was not available. Therefore, at the instance of Dhani Ram PW-5 decided not to report the matter to the police. Be it stated that parents of the prosecutrix are in service and not illiterate, rustic and so innocent as not capable of deciding proper course of action in the given circumstances and to act on the advice of Dhani Ram with whom they were and are involved in litigation, complaints and counter complaints. It is admitted by the prosecutrix that accused Rattan Lal constructed a Hotel near their house before the occurrence and encroached upon their land. This led PW-5 to report the matter about encroachment to the Deputy Commissioner and Tehsildar Bilaspur. It is admitted by the prosecutrix that accused Rattan Lal constructed a Hotel near their house before the occurrence and encroached upon their land. This led PW-5 to report the matter about encroachment to the Deputy Commissioner and Tehsildar Bilaspur. It is also her admitted case that despite intervention by the Kanoongo and Patwari accused Rattan Lal and his father did not stop the construction and even the request of the villagers including Surjit Singh (PW-6) to stop the construction of Hotel by the accused and his father was declined. It is also admitted by the prosecutrix that Dhani Ram father of accused Rattan Lal is of quarrel some nature and had quarrelled with her mother many a times. PW-4 mother of the prosecutrix had also clearly and unambiguously admitted the aforesaid dispute regarding land between her husband Rup Ram, accused Rattan Lal and Dhani Ram and has further stated that this dispute had led to institution of criminal cases between the parties and the encroachment was admittedly done about a year before the alleged incident of rape. She has further admitted that she had made a complaint against Dhani Ram. She has further admitted that there had been disputes, litigations and there is enmity between them and Dhani Ram since 1990. The quarrels between the parties are admitted by PW-5 also. In view of these relations between the parties it is improbable that the parents of the prosecutrix would not report the matter to the police at the instance of Dhani Ram rather in the event of rape having been committed by the accused particularly Rattan Lal they would not have lost time in reporting the matter to the police. 19. The reason that to save the prosecutrix and the family from humiliation the matter was not reported to any authority is also not convincing and satisfactory. In view of the parents of the prosecutrix indulging in making enquiries in the matter at different stages from different persons and in the presence of a huge number of persons and admittedly informing the entire village of the rape much before lodging of the complaint it is evident that the parents of the prosecutrix never wanted to keep the occurrence as a secret so that the prosecutrix or their family was not defamed in the eye of the public. By making such enquiries they had made known the occurrence themselves to a large number of the people and the whole village. Thus it is not a case wherein matter was not reported to the police for months together to keep it a secret to save honour of the prosecutrix or the family. 20. It also emerges from conducting of the enquiries by the parents of the prosecutrix as to whether the rape was committed or not that they were not satisfied with the version of the prosecutrix regarding rape. The doubt of the parents of the prosecutrix about the version of the prosecutrix is further evident from the admission of PW-4 that they did not file the complaint after the incident of rape because Tara Chand was not traceable and they were searching for Tara Chand because Rattan Lal had told that Tara Chand had also committed rape and they were to first get confirmed from Tara Chand about the incident of rape. This admission on the part of PW-4 mother of the prosecutrix that she acquired knowledge of accused Tara Chand having committed rape on the prosecutrix from Rattan Lal and verification of facts was required evidently shows that the parents of the prosecutrix themselves were not sure of the correctness of the version of the prosecutrix or they were gaining time to create evidence to implicate the accused. 21. It has been stated by PW-4 that accused Rattan Lal had twice attempted to finish her life by running Jeep over her and she saved herself but it is not her case that she ever complained about the alleged attempts by accused Rattan Lal to murder her to any authority whatsoever. Had there been any truth in those allegations she would have reported the alleged attempts to kill her to the police. This gives the impression that she is capable of coining stories. 22. The version of the prosecutrix that on 11.10.2000 both the accused met her at Raghunathpura and at that time they asked the prosecutrix to sit in the Taxi and on her refusal they tried to put her in the Taxi forcibly and she was saved by two scooterists is also highly suspicious. As per the complaint Ext. 22. The version of the prosecutrix that on 11.10.2000 both the accused met her at Raghunathpura and at that time they asked the prosecutrix to sit in the Taxi and on her refusal they tried to put her in the Taxi forcibly and she was saved by two scooterists is also highly suspicious. As per the complaint Ext. PD, the accused, alongwith 4 or 5 other persons, attempted to do so on 11th and 12th October, 2000 at Mandi Manwa and Raghunaihpura but this is not so in the evidence of the prosecutrix and there is variance in what has been averred in the complaint and what has been stated by her. There is no other eye witness of this occurrence. Accordingly to evidence of PW-3 and PW-4 who was informed of this occurrence by the prosecutrix it took place at Raghunathpura whereas according to PW-5 he was informed by the prosecutrix that the accused met her at Jabli and they tried to put her forcibly in Taxi. Thus, there are contradictions in the version as in the complaint and in the statements of PW-3, PW-4 and PW-5 about the time, place and persons concerned with the alleged incident of accused trying to forcibly remove the prosecutrix in a Taxi with a view to further subject her to rape. 23. In view of what has been stated hereinabove, the statement of the prosecutrix is not cogent, consistent and confidence inspiring and could not be acted upon unless some assurance to its truthfulness is available on the basis of some independent evidence. 24. With a view to corroborate the statement of the prosecutrix, prosecution relied on the medical opinion given by PW-1 that on medical examination of the prosecutrix possibility of rape could not be ruled out. Ext. PA is the MLC regarding the medical examination of the prosecutrix by PW-1. The opinion given by PW-1 is at Ext. PA/2 and reads: "After examination possibility of rape cannot be ruled out as per gynecologists opinion". Evidently, it is not the opinion of PW-1 herself but is the opinion given by some gynecologist who has not been produced and examined, therefore, this opinion is of no help to the prosecution. 25. The opinion given by PW-1 is at Ext. PA/2 and reads: "After examination possibility of rape cannot be ruled out as per gynecologists opinion". Evidently, it is not the opinion of PW-1 herself but is the opinion given by some gynecologist who has not been produced and examined, therefore, this opinion is of no help to the prosecution. 25. While making a statement in the Court PW-1 has improved upon this opinion by saying that after getting the opinion of the Radiologist and Gynecologist and going through the report of Forensic Science Laboratory Junga she had given her final opinion. There is nothing in the report Ext. PB received from the State Forensic Science Laboratory which may suggest that the prosecutrix was subjected to sexual intercourse because as per the said report the vaginal and urethral smear slides were tested in the Lab and no blood or semen was found therein, therefore, there is nothing in this report to form an opinion that the prosecutrix might have been subjected to sexual intercourse. Therefore, this report could not form basis for giving such opinion as has been given by PW-1 in her statement. 26. It is not known as to what is the basis of the Gynecologist for giving opinion that commission of rape on the prosecutrix could not be ruled out. PW-1 in her statement explains that she had given her opinion about the possibility of rape only on the basis of irregular margins of hymen of the prosecutrix. She admits that as per her examination Satwinder Kaur did not have complete sexual intercourse and there could only be partial or incomplete sexual act. She mentioned some tenderness on examination of hymen but specifically stated that such tenderness was not due to sexual act. It is neither in the MLC Ext. PA nor in the statement of PW-1 that any tear fresh or healed was detected on the hymen of the prosecutrix. The question, therefore, arises as to whether irregular margins of hymen will probablise an act of sex. 27. Lyon in his Medical Jurisprudence For India Tenth Edition 1999 about irregular hymen at page 414 has commented as follows :— "As a rule the hymen is moderately thin, but it may be thick and fleshy. The question, therefore, arises as to whether irregular margins of hymen will probablise an act of sex. 27. Lyon in his Medical Jurisprudence For India Tenth Edition 1999 about irregular hymen at page 414 has commented as follows :— "As a rule the hymen is moderately thin, but it may be thick and fleshy. The edge may show little or no irregularity, or it may be very irregular, so much so that an in cautious examiner might mistake these natural irregularities for tears. Unlike the tear these irregularities never extend down to the base of the hymen. The hymen with a markedly irregular edge is said to be fimbriated. The tenseness of the membrance varies greatly; in some women it is so marked that very slight abduction of the thighs and separation of the labia will put it on the stretch, in others the hymen is so lax and folded on itself that wide abduction of the thighs is required to make it tense. The fringe-like annular hymen or the much folded one of any shape, may allow of intercourse taking place without rupture of the membrane. In the vast majority of cases, however, it is torn on first intercourse. The tear may be single or there may be more than one rupture. The usual situation of the single tear is posteriorly, somewhat to one or other side of the middle line. If there are two tears one may be on each side of the median line. More than two tears are unusual. The rupture extends down to the base of the hymen." 28. It is evident from the above that irregular margin of a hymen is no indication of sexual intercourse but such a hymen may be present in a virgin. The test is the tear/rupture which has not been noticed in this case. 29. What further belies the opinion of PW-1 is the fact that at the time of medical examination of the prosecutrix PW-1 had admittedly found that labia majora and labia minora of the prosecutrix were not separated on separating of her legs which is not possible in the case of a woman/ girl who had been subjected to sexual intercourse by two persons one after the other. Thus, the medical opinion does not lend assurance to the otherwise unreliable evidence of the prosecutrix. 30. Thus, the medical opinion does not lend assurance to the otherwise unreliable evidence of the prosecutrix. 30. The prosecution has heavily relied on the confession made by accused Tara Chand vide Ext. PG. As per the contents of this document, accused Tara Chand admitted that at the time of coming into being of this document he was 19 years of age and about 4/5 months before on the instigation of accused Rattan Lal he entered into the house of Rup Ram (PW-5) where his daughter was all alone and two small children were sent out by him after giving them Toffees and then committed rape on the prosecutrix and after threatening her not to divulge the occurrence he returned back and that on 4th day of June, 2000 in the ground of the Primary School Manwa in the presence of the villagers he admitted his offence and promised that in future he would never commit such crime nor would come somewhere near the house of Rup Ram (PW-5) and that he was tendering the apology while in his full senses and without any pressure. Accused Tara Chand had admitted his signatures on Ext. PG but claimed that his signatures thereon had been obtained at the Police Station. 31. This document can be relied upon to hold accused Tara Chand guilty if it is proved that the admissions therein were voluntarily made by him. Surjit Singh (PW-6) is the scribe of this document and it is signed by 13 marginal witnesses out of whom only Surjit Singh has been examined. It is case of the prosecution itself that at the time of reducing into writing of Ext. PG PW-3, PW-4 and PW-5 were also present. PW-6 has stated that on 4.6.2000 PW-4 came to him and informed him of the rape committed on PW-3 by the accused persons and that after commission of the rape the accused are trying to take her forcibly and since accused Tara Chand had also come to Mandi Manwa that day, therefore, she requested him to accompany her to enquire from the accused as to why they had done so. He refused to accompany her and asked her to collect the villagers and only thereafter he would come. The villagers including Daulat Ram, Nand Lal, Mali Ram, Ravi Chandel, Khursheed Mohammad and Razak Mohammad were collected in the school ground. PW-3, PW-4 and PW-5 etc. He refused to accompany her and asked her to collect the villagers and only thereafter he would come. The villagers including Daulat Ram, Nand Lal, Mali Ram, Ravi Chandel, Khursheed Mohammad and Razak Mohammad were collected in the school ground. PW-3, PW-4 and PW-5 etc. were also present. PW-3, PW-4, PW-5 compLalned about the commission of rape on PW-3 by the accused persons. Accused Tara Chand was then called to that place and he was asked as to why he had raped the prosecutrix. He denied the charge. Then PW-4 gave him a few blows of Chappal and relatives of Tara Chand also gave beatings to him for doing a shameful act and for defaming them and thereafter accused Tara Chand admitted his guilt and disclosed that he was prompted and incited by accused Rattan Lal and that both of them committed rape on the prosecutrix. Thereafter father of accused Rattan Lal, namely, Dhani Ram and his uncle Sant Ram came there and were confronted with the said admission by accused Tara Chand. They, however, informed that accused Rattan Lal was not available but subsequently he was ^recovered and brought to the ground. When he was brought there PW-4 gave beatings to Rattan Lal with Chappal which led the family members of Rattan Lal to give beatings to PW-4 and her husband. PW-4 was rescued by those present and on intervention of the villagers the parties then agreed to arrive at a settlement whereunder both the accused had touched the feet of the prosecutrix and begged apology for their act. The witness (PW-6) goes on to state that thereafter he wrote the apology of both the accused but when the apology was to be signed accused Rattan Lal ran away and accused Tara Chand signed the same and it was signed by others also as witnesses and Ext. PG is the same apology which was written by him. In the cross-examination he has admitted that before 4.6.2000 he was unaware of the commission of the offence of rape by the accused as he was not informed about it by anyone. He has further stated that accused Tara Chand when asked about the incident had denied the commission of rape by him. In the cross-examination he has admitted that before 4.6.2000 he was unaware of the commission of the offence of rape by the accused as he was not informed about it by anyone. He has further stated that accused Tara Chand when asked about the incident had denied the commission of rape by him. It is also admitted by this witness that they continued to make enquiries from accused Tara Chand for about one and a half hour and during this period PW-4 and other persons had been giving beatings to him. PW-3 and PW-4, however, claimed that they had informed PW-6 about commission of rape before 4.6.2000 and thus belie the statement of PW-6 that before 4.6.2000 he was unaware of the commission of rape. This witness is closely related to PW-4 as his mother and mother of PW-4 are sisters. It is clearly and unambiguously admitted by him that accused Tara Chand had initially denied his involvement in the commission of the rape but he signed Ext. PG after he was beaten by PW-4 and some other persons whose names do not figure anywhere on the record. 32. PW-4 has stated that accused Tara Chand was apprehended with the help of the villagers and was taken to the school ground. This version belies PW-6 on his initial refusal to go and make inquiry from the accused and asking PW-4 to first collect the villagers and only then he would go to the spot. If the accused was apprehended by the villagers and taken to the ground as stated by PW-4 there was no question of PW-6 asking PW-4 to collect the villagers. Anyhow it is further version of PW-4 that after repeated enquiries accused Tara Chand revealed that Rattan Lal accused had prompted and incited him to commit rape on PW-3 and that accused Rattan Lal had told him that he had already illicit relations with her (PW-4) and her daughter (PW-3) and thereafter the writing came into being. 33. It is not stated by PW-4 that accused Tara Chand stated about the commission of rape on the prosecutrix by accused Rattan Lal on the same day when he is alleged to have committed the rape whereas it is so according to the other witnesses. Even in Ext. 33. It is not stated by PW-4 that accused Tara Chand stated about the commission of rape on the prosecutrix by accused Rattan Lal on the same day when he is alleged to have committed the rape whereas it is so according to the other witnesses. Even in Ext. PG it is nowhere that accused Rattan Lal also committed rape on the prosecutrix on the same day when she was allegedly raped by accused Tara Chand. Further, it is case of the prosecution throughout that the rape was committed by the accused persons in July, 1999. However, as per the contents of Ext. PG i.e. alleged admission of accused Tara Chand the rape was committed 4/5 months before coming into being of this document i.e. sometime in January or February 2000. Thus, the alleged admission does not coincide in point of time with the time when according to the prosecution the prosecutrix was raped by the accused persons. 34. It is clearly stated by PW-6 that Mafinama Ext. PG was prepared regarding admission of the offence by both the accused and their apologising for the acts but when it came to sign accused Rattan Lal bolted away. On the face of it Mafinama Ext. PG is not on behalf of both the accused but is only on behalf of accused Tara Chand who was interrogated and beaten for about one and a half hour to admit his guilt and sign the Mafinama. 35. PW-5 Rup Ram has stated that after calling the villagers, Dhani Ram and Rattan Lal to the School ground enquiries were made from both the accused whether they had committed rape on Satwinder Kaur and they admitted it. The admission was reduced to the writing which was signed by Tara Chand while Rattan Lal fled away. This version is also not in conformity with the contents of Ext. PG. Be it stated that Ext. PG is signed by 13 witnesses but none of them has been produced. In his cross-examination, PW-5 has also admitted that enquiries from accused Tara Chand were made for one and a half hours about the commission of the offence by him. 36. PG. Be it stated that Ext. PG is signed by 13 witnesses but none of them has been produced. In his cross-examination, PW-5 has also admitted that enquiries from accused Tara Chand were made for one and a half hours about the commission of the offence by him. 36. It may also be pointed out that it is admitted by PW-3 that Dhani Ram had made a complaint to the Deputy Commissioner against the prosecutrix and her mother (PW-4) for making false allegations of rape against Rattan Lal and on the basis of such complaint Revenue Officials visited the spot and made inquiries before 4.6.2000. It is further admitted by her that her mother (PW-4) tendered apology for making such a complaint and assured that she would not make such complaint in future. Had the version regarding rape of the prosecutrix by the accused persons been true there was no occasion for PW-4 tendering apology for making false allegations of rape, even prior to the coming into being of Ext. PG. It is thus evident that narration of PWs about the facts allegedly stated by accused Tara Chand is not the same as expressed in Ext. PG. 37. In view of the above what emerges from the statements of the prosecution witnesses is that accused Tara Chand was interrogated by the villagers for about half an hour about the commission of the offence and he continued to deny the same and during this period PW-4 and a few others continued to gave him beatings as is clearly admitted by PW-6. This period of enquiry accompanied by beatings apparently is sufficient to break down any person to speak out anything to save himself from further beatings. Therefore, the document Ext. PG cannot be said to have been brought about on the basis of any voluntary admission made by accused Tara Chand. Apparently, his admission is the result of his beating for one and a half hour at a place far off from his own village where none of his family members or villager was present. 38. In view of the above discussion and conclusions the accused could not have been convicted and sentenced on the basis of the evidence led by the prosecution. Therefore, the impugned conviction and sentences awarded to the accused persons are liable to be set aside. 39. As a result, both these appeals are allowed. 38. In view of the above discussion and conclusions the accused could not have been convicted and sentenced on the basis of the evidence led by the prosecution. Therefore, the impugned conviction and sentences awarded to the accused persons are liable to be set aside. 39. As a result, both these appeals are allowed. The conviction of and sentences awarded to the accused persons are set aside and they are acquitted of the charges against them. The accused persons are presently in Jail undergoing the imprisonment awarded to them, therefore, they be set at liberty forthwith. Fine, if recovered, be refunded to them. Appeals allowed.