Judgment 1. Both the appeals have been filed by the three accused appellants namely Hanif Khan, Attu Khan and Aashak Ali @ Aashak being aggrieved by the decision of Addl. Sessions Judge (Fast Track) Anupgarh dated 111.2002 in Sessions Case No. 126/2001 whereby the accused appellants were tried and convicted by the trial Court as under. 2. In the Judgment the accused appellants Hanif Khan, Aashak Ali and Attu Khan were convicted under Sections 376(2)(g), 302 read with Section 34, IPC and 201/34, IPC and accused Noora was convicted under Sections 376/114, 302/34 and 201/34, IPC. Under Section 302 read with Section 34, IPC all the accused were sentenced to life imprisonment and imposed fine of Rs. 1,000/-each in default of payment of fine to further undergo four months rigorous imprisonment. Under Section 201 read with Section 34, IPC all the accused appellants were convicted for five years rigorous imprisonment and imposed fine of Rs. 500/-each in default of payment of fine further undergo two months rigorous imprisonment. Accused Noora was convicted under Section 376 read with Section 11 IPC and remaining three accused were convicted for ten years rigorous imprisonment and imposed fine of Rs. 500/-each in default of payment of fine further undergo two month R.I. under Section 376(2)(g), IPC. All the sentences were ordered to run concurrently. 3. The prosecution was initiated on the basis of the report Exhibit P-1 lodged at Police Station Vijay, Nagar by P.W. 1 Billo Khan. Billo Khan produced a written report to SHO Vijaynagar on 11.04.2001 at 8.30 P.M. whereby formal First Information Report 90/2001 was registered. In the First Information Report it was alleged that applicant is resident is resident of Village Badopal. His daughter Jule Khan was married to Bablu Khan since about 2-3 years. This morning in-laws of his daughter sent him an information that his daughter is missing. Earlier also a misinformation about passing away of the mother-in-law of Jule Khan was communicated but later on contradicted. He was informed that dead body of his daughter has been recovered from the diggi of Village Chhunar Bilochia. When he reached in the village he observed that water of the tank was emptied and the dead body was taken out about 6 or 6.30 P.M. The matter was informed to police. He was informed that dead body of his daughter has been recovered from the diggi of Village Chhunar Bilochia. When he reached in the village he observed that water of the tank was emptied and the dead body was taken out about 6 or 6.30 P.M. The matter was informed to police. He has further written in portion A to B of the report which is as under: ÞizkFkhZ dh yM+dh ds lkFk D;k okD;k gqvk gS izkFkhZ ugha tkurk gSaAÞ 4. It was also stated in FIR that earlier his daughter had informed him that Hanif Khan, Noora, Aashak Ali and Attu Khan etc. have been persecuting her. On the basis of this written report formal FIR Exhibit P. 2 was recorded and investigation was started. 5. Charge-sheet was filed against the accused persons. Trial Court framed charges against the accused persons as above. Accused denied charges and claimed trial. At the trial, prosecution examined as many as 14 witnesses but only 13 prosecution witnesses were marked because by mistake two prosecution witnesses were marked as P.W. 8. Accused were examined under Section 313, CrPC. Defence examined three witnesses. 6. The trial Court after considering the case of the prosecution, came to the conclusion that the accused are guilty as aforesaid. After conviction they were awarded sentences as described herein above. The trial Court observed that P.W. 1 Billo Khan and P.W. 2 Aarsha are trust worthy witnesses and the case of the prosecution is amply proved. 7. Assailing the decision of the learned trial Court learned Counsel for the appellants as well as learned amicus curiae stressed that reliance placed by the trial Court on P.W. 1 Billo Khan & P.W. 2 Aarsha is not supported by the facts and circumstances of the case P.W. 1 Billo Khan, in his written report Exhibit P-1 has not stated that the prosecution case has been made out by himself and P.W. 2 Aarsha at the trial. This witness P.W. 1 Billo Khan was positive while he stated in Exhibit P-1 that he does not know as to what was happened to his daughter. This witness P.W. 1 Billo Khan was positive while he stated in Exhibit P-1 that he does not know as to what was happened to his daughter. In his examination in chief he has stated that before he submitted as under: - ^^eSaus iznkZ ih&1 o iznkZ ih&2 vjlka ls feyus ds ckn rFkk mlds }kjk lkjk okdk crkus ds ckn dh FkhA iznkZ ih&1 o ih&2 esa eSaus ;g ntZ djok;k ;k ugha fd vjlka ls iwNus ij mlus eq>s crk;k fd jkr dks gkftj vnkyr eqy- vÙks[kkWa] guhQ] vkf kd o uwjk us tqys[kka dks ekjdj fMXxh esa Mky fn;k A mijksä rF; iznkZ ih&1 o ih&2 esa D;ksa ugha fy[kokbZ eSa dkj.k ugha crk ldrkA** 8. Thus, according to the learned Counsel before Exhibit P -1 was written and submitted to the police this witness has received all the information from P.W. 2 Aarsha this witness states that Aarsha had informed him about the whole incident P.W. 2 Aarsha in her statement to the Court says in following terms. ^^eSausa fcYyaw[kkWa dks vkrs gh ogka ?kVuk ds ckjs esa crk nh FkhA fcYyw[kkWa dks lkjh ckr eSaus ?kVuk ds lEcU/k esa iqfyl Fkkuk tkus ls igys crk nh FkhA** 9. Thus, this witness also has positively stated that she had informed Billo Khan about the whole incident. Thus the details of the incident as given in the Court statements by these two witnesses do not find place in Exhibit P. -1, it knocks out the bottom of the prosecution case which is as under: - ^^vk/kh jkr dks guhQ tqys[kkWa dks mBkdj vUnj ys x;k ckr eSaus iznkZ Mh&2 esa rFkk vnkyr esa c;kuksa esa ntZ djok;k Fkk ysfdu iznkZ~ Mh&2 esa o vnkyr dh c;kuksa esa fy[kk gqvk D;ksa ugha gSa eq>s irk ughaaA igyh ckj stqys[kkWa dks guhQ mBkdj vdsyk gh ys x;k Fkk] rhuksa tus mBkdj vUnj ugha ys x;A iznkZ Mh&2 dk fgLlk , ls ch xokg dks i<dj lquk;k rks lqudj xokg us dgk fd eSauas ;g fgLlk bl rjg ls ugha fy[kk vkSj u gh , slk eSaus U;k;ky; esa c;kuksa esa fy[kk;kA** 10. Learned Counsel for the appellants further submitted that this is an admitted case of the prosecution witness that police had arrived at the scene of occurrence on the 11th itself . Learned Counsel for the appellants further submitted that this is an admitted case of the prosecution witness that police had arrived at the scene of occurrence on the 11th itself . If the police had arrived at the scene of occurrence on 11th itself which is evident from the statement of prosecution witness P.W. 2 Aarsha. Which is as under: - ^^iqfyl ekSdk ij ?kVuk ds nwljs fnu lqcg ukS cts ekSdk ij vk xbZ FkhA** 11. From the aforesaid it is clear that incident had taken place on 10.04.2001. Next day the police had arrived yet the investigating agency has not admitted this fact that they had reached at the scene of occurrence on 11th which was an attempt to camouflage and shows the weakness on the part of prosecution. Learned Counsel for the appellants has further asserted that this witness has resiled from his police statement in material details. The sequence of events as narrated by her in Court have been given good bye which is as under and she has tried to make out entirely new case. ^^U;k;ky; esa tks esjs c;ku gq;s ftldk fooj.k Åij vk;k gS og iznkZ ih&3 gSaA iznkZ Mh&3 dk fgLlk , ls ch eSaus ugh fy[kok;kA eSausa guhQ }kjk gh tqys[kkWa dks mBkdj ys tkuk fy[kok;k FkkA**&&&& iznkZ Mh&3 dk fgLlk lh ls Mh ^^guhQ] vfr;k o vd us tqys[kka ds diMs+ mrkj dj uaxk dj fn;k** ;g ckr lgh ugha gSa o okys tks ikuh Hkjus x;s Fks mudks lq---------xkacg tYnh gh bl ckr dk irk yx x;k Fkk fd tqys[kka fMXxh esa fxj xbZ gS vkSj 10 cts xkao okys bdV~Bk gksuk kq : gks x; s FkAs--------eSa fMXxh ds ikl iqfylokyksa ds lkFk xbZ FkhA blls igys eSa fMXxh ds ikl ugha xbZ FkhA nkZ Mh&2 esuk fy[k fn;k Fkk] blesa ugha fy[kk eS--------iqfyl c;ku iza 10 rkjh[k dh ?kVuk gksa D;ksa ugha crk ldrhA 12. Thus, learned Counsel for the appellants asserted that the prosecution has been manipulating the case in a big way. 13. Learned Counsel for the accused further stressed that presence of semen on the vaginal swab and on apparels of the deceased are of no consequence in the background that deceased was a married lady and defence witness DW-3 Babloo Khan is the husband of the deceased. He has stated that deceased was with him in that night. 13. Learned Counsel for the accused further stressed that presence of semen on the vaginal swab and on apparels of the deceased are of no consequence in the background that deceased was a married lady and defence witness DW-3 Babloo Khan is the husband of the deceased. He has stated that deceased was with him in that night. He had slept with his wife and in that background, nothing can be read in those medical opinions which expressed that there were semen on her clothes as well. 14. P.W. 1 Billo Khan is a witness of hear say and whatever he has stated in his police statement as well as in his Court statement is only what was told to him. There are variation in his statement therefore, no reliance can be placed on him. He has not stated correct facts as narrated by him in the Court or in his first version that contains in Exhibit P-1 written FIR. That leaves P.W. 2 Aarsha only witness supporting the prosecution case. She has materially altered her story in Court. She has not confirmed her police version in Court. Further, according to her she had given the entire version to P.W. 1 Billo Khan before lodging the FIR. If this fact narrated by P.W. 2 Aarsha is true then what is contained in Exhibit 1 was only known to her. Anything else has been subsequently developed and thus, it cannot sustain the prosecution story. The police according to the witnesses have reached at the scene of occurrence on 11th itself but the investigating agency and witnesses have withheld this material part. Police witnesses have stated that they had only gone on spot on 12th. This is such a glaring fact which is enough to brand the investigating agency to be manipulative, the case has been engineered by the prosecution with the assistance of investigating agency. 15. Per contra learned Public Prosecutor submitted that there was no reason to doubt the findings of the trial Court wherein the trial Court has believed the testimony of P.W. 2 Aarsha. She was the inmate of the house, when the offences was committed. She has deposed against her husband and a lady is not expected to depose against her husband. It is done only when there are some strong reasons for the same. She was the inmate of the house, when the offences was committed. She has deposed against her husband and a lady is not expected to depose against her husband. It is done only when there are some strong reasons for the same. The trial Court in detail has examined the prosecution evidence and has recorded the conviction. The order of conviction deserves to be confirmed. 16. We have given our thoughtful consideration and have perused the record. First and foremost question which emerges in the prosecution case is that when P.W. 1 Billo Khan arrived, what was the information received by this witness. In his report, P.W. 1 Billo Khan has clearly stated that he has no knowledge as to what has happened to his daughter. According to P.W. 2 Aarsha she has informed in detail about the implication of the accused persons to this witness before he went to the police. P.W. 1 Billo Khan also admits that P.W. 2 Aarsha had informed him. If these statements are considered to be true then what is to be seen is that the facts contained in Exhibit P/1 were the facts known to these witnesses. Rest of the story has been developed subsequently and, therefore, it was not incorporated with Exhibit P-1. Absence of details leave us to one inference only that P.W. 1 Billo Khan had no knowledge of any fact as alleged by him in relation to the accused when he scribed Exhibit P-1. The necessary corollary of the above drawn inference is that P.W. 2 Aarsha had also no knowledge of what she had stated in her subsequent statements, because whatever she had known, she had already informed to P.W. 1 Billo Khan. Thus until the evening of 10th at 8.30 P.M. when Exhibit p-1 was submitted to the police, these two witnessed had not known about the manner of incident. If she had not known these facts then what necessarily follows is that she was not an eye-witness. If she was not an eye witness then her statement as an eye witness is of no consequence. 17. According to the prosecution witnesses police had arrived in the morning of 11th. But then they have come with a version that they arrived on 12th. This also shows that there had been a possibility of manipulating the case. If she was not an eye witness then her statement as an eye witness is of no consequence. 17. According to the prosecution witnesses police had arrived in the morning of 11th. But then they have come with a version that they arrived on 12th. This also shows that there had been a possibility of manipulating the case. Circumstantial evidence also does not corroborate the prosecution case as semen stains on the clothes and in vaginal swab of the deceased are explained by the husband of the deceased who had appeared as defence witness D.W. 3. Babloo Khan. 18. Form the aforesaid discussion it is made out that the entire prosecution case is based on a post investigation concoction. Thus, it does not inspire confidence and the accused persons are entitled to benefit of doubt. Incidentally, one of the accused Noora has not filed appeal but her case is not distinguishable from the other accused persons, therefore, she is also entitled to the same treatment. 19. Accordingly, the appeal of the accused appellants Hanif Khan, Attu Khan, Aashak Ali @ Aashak is allowed. All the accused persons namely Hanif Khan, Attu Ram, Aashak Ali @ Aashak and Noora deserve benefit of doubt. They are acquitted of the charges levelled against them. Accused Hanif Khan, Attu Khan and Noora except accused Aashak Ali @ Aashak are behind the Bars. They should be released forthwith if no required in any other case. Accused Aashak Ali @ Aashak is on bail. His bail bonds are cancelled.