JUDGMENT 1. - These two appeals are directed against the judgment dated 21.3.01 passed by the learned Addl. Sessions Judge. Bikaner in Sessions Case No. 82/99 whereby he has convicted accused-appellants. Rafiq All and Mehboob All for the offence under Section 376 IPC and sentenced them to rigorous imprisonment for 10 years and a fine of Rs.15,000/- and for the offence under s Section 342 IPC and sentenced them to rigorous imprisonment for three years and a fine of Rs.5001- each. In case of non-payment of fine of Rs.15,000/- for the offence Under section 376 IPC, one year's further simple imprisonment was awarded whereas for the offence under section 342 IPC, in default of payment of fine, further simple imprisonment of one month was awarded. 2. Appellant Fezu Khan was convicted for the offence under Section 366 I.P.C. and was sentenced to R.I. for 10 years and a fine of Rs.15,000/- and was also convicted for the offence under section 344 IPC, and sentenced to rigorous imprisonment for six months and a fine of rupees 1000/-. In default of payment of fine, he has been further sentenced to undergo R.I. for a is period of one month. 3. The appeal No. 237/2001 is by aforesaid three convicts.The another appeal No. 235/2001 is by appellant Salim @ Aslam S/o Bajji Alla Khan, who has been convicted for the offence under section 376 IPC and sentenced to years R.I.As per the prosecution case, on 24.6.99 PW4 Pabu Ram, the father of prosecutrix Indra @ Indu lodged a complaint at police station Jai Narayan Vyas Colony, Bikaner, that his daughter Indra @ Indu is missing from house since 17.6.99, and her mental condition is not good and she remains dull during summer. 4. Thereafter, on 27.6.99 Pabu Ram lodged a second FIR alleging that while searching for his daughter. who was missing since 17.6.99 and a report about her missing was made on 24.6.99, he has come to know that Rafiq and his maternal Uncle Mehboob Ali have enticed his daughter and they had taken her from Bikaner in an ambassador car. These persons were stated to be residents of Ambedker Colony, Bikaner. who was missing since 17.6.99 and a report about her missing was made on 24.6.99, he has come to know that Rafiq and his maternal Uncle Mehboob Ali have enticed his daughter and they had taken her from Bikaner in an ambassador car. These persons were stated to be residents of Ambedker Colony, Bikaner. It was stated that the girl was minor aged about 13 years.At the close of investigation, Salim was charged for the offence under section 376 IPC and Rafiq and Mehboob were charged for the offences under section 376 and 342 IPC. Fezu Khan was charged for the offences under section 354, 366 and 344 IPC, Sada Khan was charged for the offence under section 343 IPC and Bhura Khan was Charged for the offences under section 343 and 354 IPC.After conclusion of the trial, Bhura Khan was acquitted by giving benefit of doubt. Rafiq and Mehboob Ali were acquitted of the offence under section 366 IPC and Fezu Khan was acquitted for the offence under section 354 IPC.Rafiq, Mahboob Ali, Salim @ Aslarn and Fezu were convicted and sentenced as noticed above. Apart from the appellants referred to above, Sada Khan was also convicted for the offence under section 344 IPC and sentenced to days R.I. together with a fine of Rs.1000/- and in default in payment of fine, to further undergo simple imprisonment for one month. Sada Khan had already carried out his sentence during trial and therefore, he was released forthwith and he has not filed any appeal. 5. The prosecution examined as many as seven witnesses including prosecutrix as PW3. Prosecutrix was subjected to medical examination. In respect of findings on medical examination, PW1 Dr. Ranjana Jain and PW2 Dr. G.L. Meena have been examined. Amongst prosecution witnesses, Pabu Ram has been examined as PW4, Mangu Singh as PW5, Mahavir Prasad as PW6 and Sajjan Singh as PW7, who is a Circle Inspector, and had handed over the investigation to PW6 Mahavir Prasad. Apart from their statements recorded under section 313 IPC, accused have examined IDW-1 Sikandar Khan who is stated to be resident of Arjunsar and is a contractor of liquor shop, where rape was allegedly committed by Rafiq and Mehbood Ali. 6. The principal evidence on which the conviction is founded is the statement of prosecutrix PW3. Apart from their statements recorded under section 313 IPC, accused have examined IDW-1 Sikandar Khan who is stated to be resident of Arjunsar and is a contractor of liquor shop, where rape was allegedly committed by Rafiq and Mehbood Ali. 6. The principal evidence on which the conviction is founded is the statement of prosecutrix PW3. According to her, on 17.6.99 at 4 PM, she was pursuaded by her friend Shabnam, who stays nereby, to accompany her at her residence. However, instead of going to house of Shabnam, they went to Fezu Khan's house. Shabnam is said to he grand daughter (daughter's daughter of Fezu Khan). At the house, of Fezu Khan, after sometime when she and Shabnam got up to go from Fezu Khan's house, Fezu Khan caught her hand. Shbnam went away. She was told that she has to stay at his house only and that it is now her house. When she resisted, Fezu Khan gave her a drink, as a result of which she slept and she woke up at about 8.00 PM. Fezu Khan forcibly her to the car standing out side of his house which wasoccupied by Rafiq and Mehboob Ali. When she desired to go to her house, Fezu Khan told that if she will resist he would kill not only her, but also her family members. Fezu Khan drove the car, and stopped the car at Arjunsar liquor shop late in the night. While Fezu Khan slept out side the shop by taking out a cwat. She, Mahboob and Rafiq remained in the room of the liquor shop. Rafiq took bear. Thereafter, Rafiq and Mehboob each had intercourse with her thrice by turn. 7. At about 4 A.M. Fezu Khan gave a wake up call. When she got up, Fezu Khan wondered that she can still stand. Fezu Khan alone drove her to village Kela where he left her at Sada Khan's house and went away. Fezu Khan introduced himself to be her grand father. On the way to Kela Fezu Khan has tried to play with her which she resisted. She further states that Bhoora Khan S/o Sada Khan tried to molest her but she resisted and hit him with the lathi. Then she was told that they had purchased her for a consideration of Rs.40,000/- and they were entitled to use her in any way they like 8. She further states that Bhoora Khan S/o Sada Khan tried to molest her but she resisted and hit him with the lathi. Then she was told that they had purchased her for a consideration of Rs.40,000/- and they were entitled to use her in any way they like 8. Next day, Fezu Khan came to Sada Khan's house and took her to Ganganagar at Balu Bai's house and told Balu Bai that she is to be sold. At Balu Bai's house, only Balu Bai and accused Salim were residing. While she was staying at Balu Bai's house. accused Salim came and offered her Rs.500/- for going to market to buy new clothes and proposed to marry him, which she declined. 9. Same evening, accused Salim came to her room and raped her. When she made complaint to Balu Bai, she was told that Salim is a bad man and she would better not to discuss anything in this regard in the Mohalla to anyone. Accused Salim had raped her twice. Thereafter. one day when she was washing the clothes of Balu Bal. one man of the Mohalla came and asked her about Balu Bai. After some conversation, she told him about her to Story and asked for his help. Thereafter, the said person called the police and pursuant thereto. police alongwith his father came and recovered her from Bablu Bai's house. According to her, she stayed at Balu Bai's house for about a month. 10. One material statement which the prosecutrix has given is that 15 Salim has offered her Rs.500/- for purchasing new clothes and proposed to marry him the next day she was lodged with Balu Bai but she declined. This as happened before Salim allegedly raped her. 11. She has also admitted that she was also medically examined, as Jer medical examination report EX P/1. She also stated unequivocally that Nhen Rafiq and Mehboob had raped her three time each in the night at Arjunsar. She has suffered bleeding and her salwar carried the blood stains and semen stains. When she was recovered by police at Ganganagar, she was wearing the same salwar which she was wearing at the time when she left the house, and it contained blood and semen stains. Said salwar was seized by the police. However, the FSL report negatives any blood or semen stains on the salwar. 12. During investigation. When she was recovered by police at Ganganagar, she was wearing the same salwar which she was wearing at the time when she left the house, and it contained blood and semen stains. Said salwar was seized by the police. However, the FSL report negatives any blood or semen stains on the salwar. 12. During investigation. she was taken to Arjunsar liquor shop for identifying the place. She identified the place where she was allegedly subjected to rape by Rafiq Ali and Mehboob Ali and the site plan was prepared which bear her signatures. She explained absence of any resistence throughout on the ground that she has been threatened of dire consequences. But, she has also admitted in her cross examination that during summer, her mind at that time gets blank. 13. The Medical Board opined her age to be about 13 to 14 years.There was no findings of injuries on the genitalia or other parts of her body. "here was no sign from which it could be inferred that she has been subjected to intercourse. Her hymen was intact. The vagina admitted only a tip of little finger and there was resistence when tip of one finger was sought to be inserted in vagina. The mensuration cycle had commenced about two months before the medical examination. Other findings of medical examination were normal. 14. The said report was proved by PW1 Dr. Ranjana. Radiologist's Report is proved by Dr. G.L. Meena PW2. According, to Ex.P.3 site plan of Arjunsar i'quor shop, which was prepared by the 'nisadehi' of prosecutrix on 1.8.99 45 shows that it is situated on Loonkaransar National High Way No. 15. It shows tnat in front of the shop across the road, there is a tea shop and a transport company. According, to the site plan, the liquor shop was on the ground floor and the place where prosecutrix has been subjected to rape is on the first floor. 15. None of the owners or the employees of the neighbouring shops were examined. Owner of the liquor shop has been examined as DW-1 who is pleaded about the incident. 16. Prosecutrix's friend Shabnam. at whose instance, she allegedly had gone to Fezu's house, has not been examined. 15. None of the owners or the employees of the neighbouring shops were examined. Owner of the liquor shop has been examined as DW-1 who is pleaded about the incident. 16. Prosecutrix's friend Shabnam. at whose instance, she allegedly had gone to Fezu's house, has not been examined. So also Balu Bai, with whom, she is alleged to have stayed for a month and with whom, she was lodged for selling according to her own version, and she advised her to keep silence s about Salim's accesses because he is notorious and dangerous person is neither an accused nor a witness. The person to whom the prosecutrix narrated her story and asked for help and who did help is missing from prosecution case altogether. Even the Investigating Officer does not refer to any such information received from such person as mentioned by prosecutrix to in her statement. 17. The salwar which was seized at the time of recovery of prosecutrix by the police, was sent for Chemical examination. The FSL report was not received by the trial court but it was summoned by this Court. The seizure memo of Salwar states the observation that neither any spot of blood nor of is semen is visible on the salwar of the prosecutrix. FSL report is also negative on this aspect. This report belies the prosecutrix statement on blood and semen stains on the Salwar seized from her, which according to her was the same which she was wearing when she left her home on 17.6.99.With the aforesaid evidence, the conviction has been rested by the trial court on the statement of the prosecutrix. 18. The question then arises is whether the prosecutrix statement in the context of finding of Medical Board and in that context of aforesaid lacunae in the prosecution independently by itself is of sterling worth which can lead to the conviction of the appellants as reached by the trial court beyond reasonable doubt with reasonable certainty? 19. Learned Public Prosecutor had urged that consensus of judicial authority is that conviction can be founded only on the testimony of prosecutrix alone. The sociology of Indian society does not permit any Section of a lady to come forward to allege the sexual vieolence and her 30 admittance of being subjected to rape, and the courage of such admission of the lady itself lends assurance of credibility to her statement. 20. The sociology of Indian society does not permit any Section of a lady to come forward to allege the sexual vieolence and her 30 admittance of being subjected to rape, and the courage of such admission of the lady itself lends assurance of credibility to her statement. 20. Attention in this regard has been invited to the observations of the Supreme Court in AIR 1983 SC 753 Bharwada Bhoginbhai Hirjibhai v. State of Gujrat wherein the court said that: "corroboration is not the sine qua non for conviction in a rape case. In the Indian Society, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. A girl or a woman in the tradition-bound non- permissive society of India would be extremely reluctant even to admit that any such incident had ever occurred. She would be conscious of the danger of being obstracized by the society or being looked down by the society including by her own family members, relatives, friends and neighbours. She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. In view of these and similar factors, the victims and their relatives are not too keen to bring the culprit to book. And when in the face of these factors, the crime brought to light, there is a built-in assurance that the charge is genuine rather than fabricated." 21. At the same time, it cannot be said that non-requirement of searching of corroboration of prosecutrix's evidence. as a rule of permits the Courts to overlook other material which incriminates the statement of the prosecutrix to the extent that renders it unreliable. It is one thing to say that prosecutrix statement need not necessarily be read with the aid of corroboration as a piece of evidence. as a rule of permits the Courts to overlook other material which incriminates the statement of the prosecutrix to the extent that renders it unreliable. It is one thing to say that prosecutrix statement need not necessarily be read with the aid of corroboration as a piece of evidence. and conviction can stand on her solitary statement alone provided it inspires confidence. But, it is quite another thing to say that even if positive, evidence on record goes against the statement of the prosecutrix which renders it improbable, it should be over looked. A balance has to be maintained between the assured credibility and improbability of the truthfulness of the story put-forward by the prosecutrix. on the basis of equally credible evidence on record, suggesting to contrary. 22. Considering the principle in mind, the available material on record needs be examined. 23. The medical evidence. genuineness of which is not in dispute, and the credibility of the Doctor is not denied, it is difficult to accept the fact of rape having been committed with the prosecutrix in the case. The medical evidence is negative on the issue. After medical examination, on 29.7.99 her hymen was intact and vagina admitted not more than the tip of the little finger. 24. The fact that there were no other injuries on the person of the girl may be over-looked. the unequivocal opinion of members of Medical Board and FSL report that she did not offer any resistance for fear may also be accepted. But, considering the statement of the prosecutrix that she was raped six times in one night at Arjunsar liquor shop within a short span of 4 to 5 hours, and each time, she was violated, she bled and then she was raped twice at Ganganagar, at Balu Bai's residence and had bleeding sounds incredible to be believed. 25. It is true that the rupture of hymen is not always in the conclusive proof of virginity for girls and because of the structural flexibility, it may remain intact even after regular intercourse. 25. It is true that the rupture of hymen is not always in the conclusive proof of virginity for girls and because of the structural flexibility, it may remain intact even after regular intercourse. But where intactness of hymen is to be viewed in the light of age of the prosecutrix and allegedly violated six times in a span of 3 to 4 hours, opening or vaginal office which does not admit more than a tip of the little finger is highly incompatible with the statement of the prosecutrix and lend assurance about the genuine virginity of the girl. 26. Apart from the medical evidence indicating contrary to the intercourse with the prosecutrix by any one, much less repeated sexual assaults for six times within a short span of during one night, the other circumstances, too incriminate against the prosecution case about rape. Admittedly when the prosecutrix alongwith Fezu Khan, Rafiq and Mohammed had reached Arjunsar, liquor shop was closed and no one was there. It is very doubtful that in such event, any room of the liquor shop would be left open by the owner of the liquor shop to be used by any passer by for any purpose. Apparently, there is no explanation on the part of the prosecution as to how the closed shop was used by the accused persons and how they could know that closed liquor shop at night is the place where they will get so (mats and open room. In this connection, the statement of DWI Sikander Khan becomes very relevant who had deposed, without their being any contradiction, that he does not know any of the accused. If the accused were not knowing the owner of liquor shop, it sounds highly improbable that at late night, they will be going straight to the shop at Arjunsar for night halt or would be knowing that open room is waiting for them. 27. According to the prosecution case, when prosecutrix with Fezu Khan, Mehboob Ali and Rafiq reached Arjunsar liquor shop late in the night, the shop was closed. There was no person. There is no explanation if the shop was closed which was situated on the highway, and nobody was there and also there was no relationship of the accused with owner of the shop, how they could enter the mom of the shop. The statement cannot be taken at its face value. There was no person. There is no explanation if the shop was closed which was situated on the highway, and nobody was there and also there was no relationship of the accused with owner of the shop, how they could enter the mom of the shop. The statement cannot be taken at its face value. 28. Important aspect of the matter is that the time when they reached Arjunsar Theka', has not been stated. However, the prosecutrix says that after she was administered some intoxicant, she was woken up at about 8 PM. and only after asking her to eat something, she was driven in the car to Arjunsar. Distance to Arjunsar Liquor shop from Bikaner has also not come in evidence. If it is assumed that the party reached between 11-12 P.M., the liquor shop on high way with tea shop around it is not closed so early. If it were closed, it is manned by some known person behind. If no person is left behind then the permises are not left open to be used by the passerby. This seriously militates against credibility of prosecutrix story about happening at Arjunsar liquor shop. 29. DW1 Sikandar Khan also says that his shop does not remain closed. This statement was probable. As per site plan of liquor shop Ex.P.12, 25 it is situated on the banks of Highway. On its flank is shop of Devilal Mund Liquor Shops and Tea shops are on Highway is more likely to be opened. In that event, absence of any person at liquor shop or tea shop is strange. Prosecutrix says that no one was at liquor shop or near about. This too does not inspire ring of truth. Absence of persons sounds incredible and presence of persons if assumed makes the statement of prosecutrix further untrustworthy. 30. Another event which is very important is that the prosecution has sought to set up a case that accused Fezu Khan has abducted the prosecutrix for selling her in flesh market with Rafiq and another person Mehboob Ali. They all reached to Arjunsar liquor shop where Fezu slept in the Cwat in open. The prosecutrix remained in the room with Rafiq and Mehboob Ali. They all reached to Arjunsar liquor shop where Fezu slept in the Cwat in open. The prosecutrix remained in the room with Rafiq and Mehboob Ali. After ravishing her six times during the night, she was woken up in the early morning at about 4 A.M. and was taken therefrom by Fezu Khan alone for being taken to another place. Fezu Khan has allegedly brought his son Rafiq and his friend Mehboob Ali for accompanying him to take the girl to another place for selling. In such circumstances, the conduct of Fezu Khan to move alone with prosecutrix to Sada Khan's house, leaving behind two other persons at Arjunsar liquor shop sounds odd and does not fit in the scheme of things set up by the prosecution. There is no explanation about leaving behind Rafiq and Mehboob Ali. It is not the case of prosecution that Fezu Khan brought Rafiq and Mehboob All with him only for subjecting prosecutrix to rape by the two accused. There is no charge against Fezu Khan for abeting the crime of rape. 31. Another factor which militates against the truthfulness of the prosecutrix is that she had not told anyone about the incident because she was threathened of Fezu Khan. However. at the same time, she is positive that Salim, at Sri Ganganagar, before he allegedly committed rape, had offered her Rs.500/- for purchasing new clothes from the market. Salim that time. had not even made his intention clear to have forcibly sexual relation with her On the contrary, he has offered to marry her. These two statements are not compatible with each other 32. Before the prosecutrix reached the house of Balu Bai. prosecutnx has complained that Fezu and his associates had threatened her that if she were to make hue and cry, she and her family may be harmed_ However. there is no assertion that any such threat was made after she was left by Balu Bai or any of her associate at Sri Ganganagar, after she reached there. She has stated that she stayed with Balu Bai for about one 10 month. According to her statement, no advancement was made by Salim at least by the time he had offered her Rs.500/- and asked her to go to market and purchase new clothes for herself and offered her to marry him. She has stated that she stayed with Balu Bai for about one 10 month. According to her statement, no advancement was made by Salim at least by the time he had offered her Rs.500/- and asked her to go to market and purchase new clothes for herself and offered her to marry him. But, she did not make any attempt to avail that opportunity of going out alone from the house. There is no allegation of misbehaviour or mistreatment with her by Balu Bai during the whole period she stayed with her. it is also significant that while she has not gathered courage to disclose anything about Salim and asked assistance and she has not earlier approached anyone lateron when some stranger came in the house asking about Balu Bai, she has narrated all the story, who according to her, brought her help. No trace is to be found in the prosecution case of such stranger. Investigation has not chosen to disclose how it came to know about whereabouts of prosecutrix at Sri Ganganagar in the house of Balu Bai. Salim was staying as tenant of Balu Bai in the very same house. Still according to her, he had intercourse with her twice only during one 25 month. 33. Neither the prosecution has sought to explain how they got the information about the presence of prosecutrix at Balu Bai's house at Sri Ganganagar nor it is stated by the investigation at any stage that they came to know about her by some unknown person. It is still strange that the 30 person who was known to Balu Bai has come to her house to whom the prosecutrix narrated her story and who has secured the police help in finding her disappeared from the scene. 34. Prosecutrix has also made a large number of improvements in her statement. It is still strange that the 30 person who was known to Balu Bai has come to her house to whom the prosecutrix narrated her story and who has secured the police help in finding her disappeared from the scene. 34. Prosecutrix has also made a large number of improvements in her statement. In her police statement, she has stated that the daughter of Sada Khan had snatched Rs.700/- from her but she had denied making of this statement before police under section 161 Cr.P.C. Apparently, if she has taken Rs.700/- while going out of her house on 17.6.99, it very much discredits her story that she had no mind to go to the house of Shabnam on that date because of functions at her home that evening, but she left for a while on insistence of Shabnam to go to her house for a short while, to refresh before functions at her own house. That sounds reason for her denying her earlier statement. While, in her statement in cross, she is positive about subjected to rape twice by Salim, she had made improvement over her statement under section 161 CrP.C. in this rape also. 35. In view of aforesaid, the statement of prosecutrix and strong embellishment indicated in the medical evidence that she has not been subjected to rape and intercourse, the charges against accused Rafiq, Mehboob and Salim under section 376 IPC are not proved beyond reasonable doubt and their convictions uls 376 IPC cannot be sustained. For the same reasons, conviction of aforesaid Rafiq or Mehboob All accused-appellants under section 342 IPC, are not proved. 36. Accordingly, the conviction of Salim, Rafiq and Mehboob Ali u/s IPC and conviction of accused Rafiq and Mehboob under section 342 IPC are set aside 37. However, the indictment of Fezu Khan of carrying a minor girl from the lawful custody of parents with intention to compel or likely to compel to marry her with any person against her will or she may be forced to illegitimate intercourse, stand proved beyond reasonable doubt. Right from leaving the place of her residence until her recovery from the place of Balu Bai, statement of prosecutrix is consistent about involvement of Fezu Khan. Right from leaving the place of her residence until her recovery from the place of Balu Bai, statement of prosecutrix is consistent about involvement of Fezu Khan. to There is no reason to disbelieve the prosecutrix about her being adminitered some intoxicant at the residence of Fezu Khan where when she has gone with her friend who is grand daughter of Fezu Khan, and thereafter she was taken out of Bikaner, firstly to the house of Sada Khan of village Kela and thereafter to Sri Ganganagar at the residence of Balu Bai. Prosecutrix is clear and positive in her statement that Sada Khan and his son Fezu Khan have told her that she has been sold to them for Rs.40,000/-. Then she was taken to go to Balu Bai's place and was entrusted to her for selling. 38. It is apparent that Fezu Khan, taking advantage of his acquittance has taken her out of the custody of lawful guardian deceitfully by administering intoxicant at his house and then taking her out of Bikaner to find a suitable buyer. The plea that she stayed out of her house on her own in a state of absent mindedness is not well probablised from the material on record. 39. In the facts and circumstances, conviction and punishment awarded 25 to Fezu Khan does not call for interference. Therefore, the appeal No. 237/2001, to the extent it is filed by Fezu Khan stands dismissed. Appeal of Rafiq Ali and Mehboob Ali and Cr. Appeal No. 235/2001 by Salim @ Aslam are allowed. Their conviction is set aside and they are acquitted of charges. Rafiq, Mehboob Ali and Salim be released forthwith if not required in any 30 other ease.Appeal of F Dismisses And that of R,M and S Allowed. *******