Judgement [Per: Hon'ble Irshadd Hussain, J.] Both these accused stand convicted and sentenced to undergo R.I. for three years and fine of Rs. 5,000/- under Section 452 I.P.C.; three years R.I. and fine of Rs. 5,000/- under Section 363/511 I.P.C.; three years R.I. and fine of Rs. 5,000/ under Section 363 I.P.C.; seven years R.I. and fine of Rs. 10,000/ - under Section 366 I.P.C.; one year's R.I. under Section 506 I.P.C. and Imprisonment for life and fine of Rs. 50,000/- each under Section 376 I.P.C. and In default of payment of fine to further undergo R.I. for a period of 1/3'" of the period of sentence awarded on each count, per judgment dated 30-8-2000 passed by the Additional Sessions Judge, Dehradun in sessions trial no. 73/ 1999. The sentences were directed to run concurrently and It was further directed that on realization of fine, a sum of Rs. 80,000/- shall be paid as compensation to the victim of the rape. 2. The facts of the case may be briefly stated as under:- Both the accused aged about 18-19 years are residents of village Harbhajanwaia of P.S. Kotwali, Dehradun. Their village is situate near village Solabeegha, Patti Mehuwala within the circle of Police Reporting Out Post, Patel Nagar of the town of Dehradun, where informant Suresh Lal (P.W.3) was residing with his family members consisting of his wife Smt. Deveshwarl (P.W.2), one son Rajesh and two daughters, Km. Sushma (P.W.1) and Km. Rajani, who is mentally retarded and is the alleged victim of kidnapping and rape. 3. In the night between 5/6-4-1999 Informant Suresh Lal and his wife were sleeping In one room and whereas the son and two daughters were sleeping In the adjoining room. At about 12.30 in the night both these accused entered In the room of the children after breaking-open Its door and made an attempt to forcibly kidnap Km. Sushma. On the hue and cries and alarm raised by the children Suresh Lal and his wife woke up and reached the room of the children. Km. Sushma was rescued from being kidnapped and taken away by these accused. Suresh Lal was even successful In catching hold of accused Rinkoo but was given teeth bite In one of the fingers of the left hand and in the process this accused got himself freed and ran away along with his companion accused David. Km. Sushma was rescued from being kidnapped and taken away by these accused. Suresh Lal was even successful In catching hold of accused Rinkoo but was given teeth bite In one of the fingers of the left hand and in the process this accused got himself freed and ran away along with his companion accused David. The Incident caused noise all around and the neighbours of the informant were also awakened. 4. Informant Suresh Lal out of fear of the accused decided to take shelter In the house of his one of the neighbour Sukh Bahadur (P.W-7). Suresh Lal, his wife, son and elder daughter however forgot to take the younger daughter Km. Rajani with them and she continued to remain In the room of the house of the informant which was raided by these accused. After some time both the accused again reached there on a motorcycle no. U.P. 07A-5396 and started knocking the door of the room in which Suresh Lal' and others have taken shelter. Accused started striking bricks on the shutter to have the same opened but they could not succeed in their attempt. Both the accused however went towards the room of the house of the informant and picked up Km. Rajanl to take her away from there. Suresh Lal, his wife and neighbours namely Sukh Bahadur, Ram Bahadur and Khadak Bahadur came out to rescue Km. Rajanl from these accused but they were given threat of death by the accused by use of fire arm. The accused were thus successful in kidnapping Km. Rajani who was taken away from there by these accused on the motorcycle. Suresh Lal and others thereafter went out towards Arcadia Tea Estate In search of Km. Rajani and after about 1'h hour Km. Rajani in a naked state was seen coming towards the house from the side of the tea estate. She had scratches on her face and chest and was bleeding from her private part. However despite search both the accused could not be traced but their motorcycle was found lying abandoned In the- tea estate km. Rajani was provided another pair of clothes by the Informant and she was taken to the reporting Police Out Post, Patel Nagar of P.S. Kotwali, Dehradun along with the motorcycle retrieved from the tea estate by the Informant Suresh Lal and- a written report of the Incident, Ext. Ka. Rajani was provided another pair of clothes by the Informant and she was taken to the reporting Police Out Post, Patel Nagar of P.S. Kotwali, Dehradun along with the motorcycle retrieved from the tea estate by the Informant Suresh Lal and- a written report of the Incident, Ext. Ka. 1 was delivered there by him. In the report the informant besides the above allegations also claimed that both the accused ' also committed rape on his mentally retarded minor daughter Km. Rajani. 5. On the basis of the written report check F.I.R, Ext. Ka. 11 was drawn on 6-4-1999 at 4.30 A.M. at the said Police Out Post and case of kidnapping and rape was registered against both the accused vide G.D. report no. 5 of the same date and time, Ext. Ka. 12. Investigation of the case was entrusted to S.I. Udal Singh. During Investigation Salwar of Km. Rajani was attached vide memo, Ext. Ka. 2 and whereas motorcycle no. U.P. 07A-5396 brought to the Police Out Post by the Informant was attached vide memo, Ext. Ka. 3. Both the accused were arrested on 6-4-1999 at about 2 P.M. and memos of arrest of the accused and seizure of their under wears, Ext. Ka. 5 and Ext. Ka. 6 were then prepared. Km. Rajanl was sent for her medical examination which was conducted by Dr. Archana Srivastava (P.W.6 ) whereas Dr. P.K. Nautiyal (P.W. 5) took X-Rays of the elbow and knee joints of the victim and submitted report, Ext. Ka. 8. Ext. Ka. 9 is the medical examination report of Km. Rajani and whereas Ext. Ka. 10 is the supplementary report providing information that Km. Rajani wasfound aged around 16 years and no definite opinion regarding rape could have been given in her case. It may be mentioned that vaginal smear report was negative for presence of spermatozoa. The investigation officer also prepared the site plans of the two places of the incident, Ext. Ka. 13 and Ext. Ka. 14. Salwar and under wears of the accused allegedly attached were sent for chemical examination and the report of the expert, Ext. Ka. 20 was tendered in evidence. On completion of the other formalities of the investigation, charge sheet, Ext. Ka. 19 was submitted against these accused on 20-5-1999. 6. Ka. 13 and Ext. Ka. 14. Salwar and under wears of the accused allegedly attached were sent for chemical examination and the report of the expert, Ext. Ka. 20 was tendered in evidence. On completion of the other formalities of the investigation, charge sheet, Ext. Ka. 19 was submitted against these accused on 20-5-1999. 6. Both these accused were committed to court of Sessions and they were charged for committing offences punishable under Sections 452; 363/511; 363; 366; 506 and 376 I.P.C. The accused pleaded innocence and claimed that they have been falsely implicated in the case. Accused Ritesh also gave out that informant Suresh Lal had borrowed money from his father and when the demand was raised for return of money false case was foisted on him. 7. At the trial, the prosecution in order to bring home guilt to the accused, examined nine witnesses. P.W-1, Km. Sushma, P.W-2, Smt. Deveshwari and P.W3, informant Suresh Lal narrated the prosecution version as disclosed In the ELR. to prove the prosecution case. P.WA, Dr. Ajai Ghai was examined to prove the injury report, Ex. Ka. 7 of informant Suresh Lal who had sustained teeth bite on a finger and an abrasion on it also in the incident. The injuries were found to be simple and were probably' caused at about 12.30 A.M. in the night between 5/ 6-4-1999. P.W.5, Dr. P.K. Nautiyal, as stated above, proved the radiology report based on the x-rays of the elbow and knee joints of Km. Rajani and on which basis the age of Kni. Rajani was found to be around 16 years. P.W.6, Dr. Archana Srivastava medically examined Km. Rajani at 11 A.M. on 6-4-1999 and prepared injury report, Ext. Ka.9 and made following observations: Outer examination: . Girl is fully conscious but mentally unstable. Both breasts are fully developed. Public and axillary hair present. Height 4 feet 8 inches. No mark of injury present on any part of the body. Internal Examination: Hymen torn (old). Vagina admits one finger easily. No marks of injury present. Vaginal smear taken and sent for examination. Bleeding present (menstruation). The medical officer also prepared supplementary report, Ext. Ka. 10 after receipt of the reports of the Radiologist and Pathologist and recorded the conclusion that the age of the patient is around 16 years and no definite opinion regarding rape could be given. 8. No marks of injury present. Vaginal smear taken and sent for examination. Bleeding present (menstruation). The medical officer also prepared supplementary report, Ext. Ka. 10 after receipt of the reports of the Radiologist and Pathologist and recorded the conclusion that the age of the patient is around 16 years and no definite opinion regarding rape could be given. 8. P.W.7, Sukh Bahadur and P.W. 8, Khadak Bahadur the two neighbours of the informant did not support the prosecution case and were declared hostile. P.W. 9, S.I. A.P. Gautam remained posted at reporting Police Out Post, Patel Naaar with S.1. Udal Sinah who investigated the crime and gave evidence to prove the steps taken during the Investigation and also the relevant documents which have mainly been referred in the earlier part of the judgment. 9. Dr. H.K. Sharma (C.W.l) was examined as' a court witness to prove his report, EX.C.-l which is to the effect that Km. Rajani may not be able to understand and reply properly to questions in evidence due to mental retardation and to certify that handicap certificate dated 21-4-1999 bearing no. 3011 had been Issued in the past. Here it need to be stated that Km. Rajani was produced in court on 22-3-2000 as Is evident from the judges note of the said date. Km. Rajani was able to disclose her name and that of her father but when further questions were put to her to record her further statement she went out of the court. It was then observed that she did not appear to be capable of giving answers to the questions. This was the reason that Km. Rajani was referred for medical examination and she was then examined by Dr. H.K. Sharma (C.W.l). 10. In defence accused examined Surendra Singh (D.W. 1) a Senior Clerk of the office of the Regional Transport Office, Dehradun to bring on record the fact that the above mentioned motorcycle was transferred in the name of one Sanjay Shah on 3-2-1994 and that the record of the transport authority did not show that the same was ever owned or possessed or registered in the name of any of these two accused. 11. Learned Sessions Judge made an appreciation of the evidence on record and placing reliance on the evidence of the prosecution accepted its case In toto and accordingly held both the accused guilty of the. 11. Learned Sessions Judge made an appreciation of the evidence on record and placing reliance on the evidence of the prosecution accepted its case In toto and accordingly held both the accused guilty of the. offences and both of them were convicted and sentenced as aforesaid. 12. Learned Senior Advocates appearing on behalf of both the accused raised several points to attach vulnerability to the judgment of the learned Additional Sessions Judge. They submitted that the entire allegations of the prosecution do not stand to reason mainly because it was highly improbable that the accused would have dared in the dead hours of the night to break open the shutters of the room occupied by the son and two daughters of the informant Suresh Lal with the intention of kidnapping Km. Sushma (P.W. 1) knowing it well that in the process of breaking open the shutters not only the occupants of the house but the neighbours would also wake up and they could very well be arrested red handed at the spot. They also urged that it was still further unbelievable that the accused having failed to attain their object of kidnapping Km. Sushma and having fled away from there would return after some time to make another attempt and this time would dare to knock even at the door of the informant's neighbour Sukh Bahadur where the informant and others have allegedly taken shelter and that in the totality of the circumstances of the case the evidence of the prosecution witnesses consisting of mainly the evidence of the witnesses of the fact Km. Sushma, Smt. Deveshwari and informant Suresh Lal has not been properly appraised and considered by the leamed Sessions Judge as a result of which incorrect inferences were drawn against the accused. It was then also submitted that the claim of the prosecution that after the initial events of the incident second mentally retarded daughter Km. Rajani was forgetfully left behind all alone and uncared in the room of the house of the informant and all the other family members went away to take shelter in the house of the neighbour Sukh Bahadur and it facilitated the accused to kidnap Km. Rajani was forgetfully left behind all alone and uncared in the room of the house of the informant and all the other family members went away to take shelter in the house of the neighbour Sukh Bahadur and it facilitated the accused to kidnap Km. Rajani and to take her on a motorcycle towards a tea garden to commit rape on her despite the fact that all the neighbours also were alarmed and present there in and around the place of the occurance. According to the learned Senior Counsel the medical evidence in regard to the rape being negative and there being no evidence of the alleged victim herself on record the allegation of the prosecution In that regard was also not legally proved and the learned Sessions Judge Illegally reached to the conclusion in favour of the prosecution on the basis of Inadmissible evidence of other witnesses. It was lastly urged that the accused were not liable to be convicted under the different counts and highly unreasonable and irrational view had been taken by the learned Additional Sessions Judge In awarding punishment on different Counts to the accused and that the judgment under appeal Is not fit to be maintained. 13. As against this, learned A.G.A. Supported the judgment of the learned Sessions Judge and argued that the findings of the learned Sessions Judge are based on proper and fair appraisal of the Supporting evidence of the prosecution on record and that there being no merit in this appeal the same Is liable to be dismissed. 14. It need to be stated that the occurrence of the case consists of two parts or in other words two separate events having a gap of about 5-7 minutes as is evident from the prosecution case as set up In the F.I.R., Ex. Ka. 1. So far as the first part Is concerned it relate to both the accused appearing at the house of the informant at about 12.30 A.M. in the night between 5/6-4-1999 where after they broke the door of the room in which P.W.1, Km. Sushma was sleeping With her brother Rajesh and younger Sister Km. Rajani and wanted to kidnap Km. Sushma. On alarm being raised informant Suresh Lal (P.W.3) and his Wife Smt. Deveshwari (P.W.2) sleeping in the adjoining room came out and helped in getting their daughter Km. Sushma released from the clutches of the accused. Sushma was sleeping With her brother Rajesh and younger Sister Km. Rajani and wanted to kidnap Km. Sushma. On alarm being raised informant Suresh Lal (P.W.3) and his Wife Smt. Deveshwari (P.W.2) sleeping in the adjoining room came out and helped in getting their daughter Km. Sushma released from the clutches of the accused. The accused failed In their attempt and fled away from there. In regard to this part of the prosecution case there is evidence of P. W. 1, P. W. 2 and P. W. 3 all of whom have supported the prosecution version by narrating as to how the event took place at that time and the accused were made to escape from the scene of the incident after getting unsuccessful in their attempt to kidnap P. W. 1, Km. Shushma. All these three witnesses were cross-examined at length but nothing of substance could be brought on record as may have assailed their reliability 'n regard to this incident Involving both the accused. At the time of the incident accused Rinkoo was even caught hold of by informant Suresh Lal but he was given teeth bite by the accused to secure his release and he then ran away from there along With companion accused David. Informant Suresh Lal was medically examined at 7.50 A.M. in the morning of the incident by Dr. Ajay Ghai (P.W. 4) and who prepared injury report, Ext. Ka. 7. The medical evidence prove that injuries were sustained on the left index finger of the Informant probably at the time of the incident and the medical eVidence on record thus corroborate the evidence of the informant and other witnesses that in the incident ,'nformant Suresh Lal sustained injuries at the hand of one of the accused Rinkoo. 15. After the incident informant and his family members took shelter .n the house of one of the neighbour Sukh Bahadur (P.W.7). As a result of the hue and cry and the alarm raised by the Informant other neighbours were also awakened. Another neighbour Khadak Bahadur, P. W. 8 was also there and he was also examined In the evidence by the prosecution. Both P.W. 7 and P.W. 8 did not support the prosecution case and were declared hostile. As a result of the hue and cry and the alarm raised by the Informant other neighbours were also awakened. Another neighbour Khadak Bahadur, P. W. 8 was also there and he was also examined In the evidence by the prosecution. Both P.W. 7 and P.W. 8 did not support the prosecution case and were declared hostile. Referring to this aspect of the matter :earned Senior Counsel argued that since the Independent Witnesses have not supported the prosecution case and corroborated the evidence of P. W. 1, P. W.2 and P. W. 3 It becomes clear that the defence claim was false or at any rate the evidence of the Interested wintesses was not sufficient to prove the allegations of the prosecution against the accused. It is well settled that the testimony of the interested and relative witness can not be rejected unless the evidence on careful scrutiny is found unreliable. As stated above, nothing of Significance could be brought on record from the cross-examination of P. W. 1, P. W. 2 and P. W. 3 to show that they were not the truthful witnesses and In a situation like this there was "no doubt that these witnesses have stood the test of cross-examination to sustain their reliability. The learned Additional Sessions Judge had made meticulous analysis of the evidence of these witnesses in regard to this part of the incident and reached to a conclusion that the evidence of the witnesses being credible and reliable prove beyond doubt that both the accused broke the door of the room of the house of the Informant In which Km. Sushma was sleeping with her younger" sister and brother and they made an attempt to kidnap her In the mid night of 5/6.4-1999. "" 16. As regards the second part of the occurrence Is concerned It appear highly Improbable and does not stand to reason that the attempt to kidnap Km. Sushma having been aborted and the informant prudently decided to take shelter with his family members in the house of a neghbeur Sukh Bahadur (P. W. 7), one of the daughter Km. Rajani who is mentally retarded and handicapped was forgetfully left behind In her sleep in one of the room of the house of the Informant and she was after about 5-7 minutes was kidnapped by these accused who returned on a motorcycle. Rajani who is mentally retarded and handicapped was forgetfully left behind In her sleep in one of the room of the house of the Informant and she was after about 5-7 minutes was kidnapped by these accused who returned on a motorcycle. According to the prosecution the accused first of all entered In the room occupied by the three children of the Informant" by breaking open the door of the room and according to the evidence of P.W. 1, P.W. 2 and P.W. 3 hue and cry and alarm had then been raised by the Inmates. It Is unbelievable that when the accused started breaking the door of the room Km. Sushma and her brother Rajesh only were able to woke up and Km. Rajani continued to remain sleeping undisturbed. It Is further unbelievable that she would continue to sleep even when the Informant and his wife entered In the room on hearing the hue and cry and the alarm and made an attempt to apprehend the accused at the spot Itself. Accused Rinkoo was caught hold of by the Informant Suresh Lal but he managed to release himself by giving a teeth bite on the finger of the informant and In this process also lot of noise and disturbance must have been caused in" the room making It Impossible for Km. Rajni to continue to remain undisturbed In her sleep. Km. Rajani In every circumstance was also to wake up to be able to accompany the other family members leaving that place to take "shelter in the house of a neighbour. Considering these broad features of the case and peculiar aspects of the matter we are not inclined to place"even the least reliance on the evidence of P. W. 1, P. W. 2 and P. W. 3 that Km. Rajanl was left "behind in her sleep In the" room of the house of the informant and these witnesses and Rajesh went away to hide themselves In safety In the house of Sukh Bahadur. Theclall'11 of these witnesses that they forgot to take Km. Rajani with them is totally false and unacceptable. Km. Rajani is mentally retarded and Is a handicapped person. A person is supposed to act In a normal fashion expected of a prudent person. Theclall'11 of these witnesses that they forgot to take Km. Rajani with them is totally false and unacceptable. Km. Rajani is mentally retarded and Is a handicapped person. A person is supposed to act In a normal fashion expected of a prudent person. All the three witnesses P. W. 1, P. W. 2 and P. W. 3 being persons of ordinary and normal mental faculties were expected to act prudently and thus not to leave behind the handicapped and mentally retarded Km. Rajani high and dry all alone and uncared In the room of the house after the initial Incident and the attempt of kidnapping having already taken place and to be conscious of their own safety only. Learned Additional Sessions Judge took up the evidence of these witnesses but did not consider their evidence in the above perspective and a very glaring aspect of the case and merely went by the claim of the witnesses to come to conclusion that Km. Rajani was left behind all alone in the room of the house raided later on after about 5 or 7 minutes .by these accused to kidnap her from there for committing rape on her. In our considered view the approach of the learned Sessions Judge was not at all rational and legally justified and the evidence of these witnesses should not have been acted upon to conclude that Km. Rajani was all alone and uncared for in the room of the house of the informant. 17. It was also the case of the prosecution that after the accused kidnapped Km. Rajani she was taken to a tea estate known as Arcadia Tea Estate on a motorcycle bearing registration No. U.P. 07A-5396. It is in the evidence of these witnesses that before kidnapping the accused started striking bricks on the shutters of the house of Sukh Bahadur where the informant and his family members have taken shelter, perhaps to make another attempt to kidnap Km. Sushma. Knowing it very well that lot of noise and alarm was raised in the earlier incident and every one in the locality was awakened and also on account of the informant and his family members taking shelter in the house of a neighbour Sukh Bahadur. Sushma. Knowing it very well that lot of noise and alarm was raised in the earlier incident and every one in the locality was awakened and also on account of the informant and his family members taking shelter in the house of a neighbour Sukh Bahadur. In a situation like this it was highly improbable that the accused would act in such a dare devil manner and would make another attempt of kidnapping of Km. Sushma by loudly knocking at the door of Sukh Bahadur. Site-plan, Ex. Ka.13 indicate that there are residential houses In the locality and it is in the evidence of P. W. 1, P. W. 2 and P. W. 3 that besides the family members, Sukh Bahadur, Ram Bahadur and Khadak Bahadur were also there when the accused started knocking the door of the house of Sukh Bahadur and further that these neighbours also went in search of Km. Rajani after she had allegedly been kidnapped by the accused. We are not inclined to place reliance on the evidence of these witnesses that the accused came there again after 5-7 minutes and were successful in kidnapping Km. Rajani and to take her from there to a tea estate on a motorcycle. 18. It Is also the prosecution case that Km. Rajani on being searched was found coming from the side of the tea garden and at that time she was all naked and was bleeding from her private part. It was claimed in the EI. R. that both the accused committed rape on her. The written E.I.R., Ex. Ka. 1 is detailed one but it does not contain any reference that the signs and gestures of Km. Rajani indicated that she was raped by the two accused. Informant Suresh Lal, P.W. 3 does not speak of any signs and gestures made to him by Km. Rajani. P.W. 1, Km. Sushma and P.W. 2, Smt. Deveshwari however claimed that Km. Rajani by signs and gestures gave out to them that she had been raped by both the accused in the tea estate. According to the evidence of these witnesses although Km. Rajani. P.W. 1, Km. Sushma and P.W. 2, Smt. Deveshwari however claimed that Km. Rajani by signs and gestures gave out to them that she had been raped by both the accused in the tea estate. According to the evidence of these witnesses although Km. Rajani was unable to speak and herself tell as to what happened with her on account of her mental incapacity but she was able to make it intelligible by signs and gestures as to what happened with her physically and as to how, by whom and by how many persons she was ravished at particular time and place. Considering this aspect of the matter learned Senior Counsel for the accused referring to Section 119 of the Indian Evidence Act, 1972 submitted that the allegation against the accused could have only been proved by the evidence of Km. Rajani alone and that the evidence of P. W. 1 and P. W. 2 was not at all admissible to prove as to what happened with Km. Rajani because their evidence being hearsay and also because the learned Session Judge not aware as to what signs and gestures were made by Km. Rajani to P. W. 1 and P.W. 2 to Indicate Illegal acts committed against the victim. Section 119 of the Indian Evidence Act reads as below:- "119. Dumb witnesses:- A witness who Is unable to speak may give his evidence In any other manner In which he can make It intelligible, as by writing or by signs; but such writing must be written and the signs made In open court. Evidence so given shall be deemed to be oral evidence." 19. The above section provide a mode In which a witness ,who' is unable to speak may give his evidence and evidence so given shall be deemed to be the oral evidence in the case. If Km. Rajani could have made signs and gestures to P.W. 1 and P.W. 2 to make It intelligible as to what happened.,to her at the hands of the accused she could have very well given her evidence in the court also as contemplated by the above' provision but she did not avail the benefit of this provision despite having appeared before the Additional Sessions Judge and even being able to tell with difficulty her name and that of her father as referred In the earlier part of the judgment. It does not stand to reason as to why she went away from the court room without giving further evidence by signs and gestures, but at any rate in the peculiar aspects of the case we are inclined to find favour with the argument of the learned Senior Counsel that Km. Rajani refrained from availing the benefit of above legal provision arid to give evidence in the manner as provided to prove the allegations of rape etc against the accused and in the totality of the circumstances of the case the inadmissible evidence of P.W. 1 and P.W. 2 was not a legal substitute for the evidence of Km. Rajani. Learned Sessions Judge failed to take this important aspect in to consideration and merely placed implicit reliance on the, evidence of P. W. 1 and P. W. 2 to find favour with the case of the prosecution in regard to the second part of the occurrence of the case. ' 20. So far as the circumstantial evidence of the incident is concerned, we are of the considered view that the above Incriminating facts and circumstances against the prosecution run counter to the claim that Km. Rajani was, kidnapped by the accused and was taken to tea estate. Her medical examination as proved by Dr. Archana Srivastava (P.W.6) and referred in the earlier part of the judgment also does not admit of inference that Km. Rajani 'was ravished. There was no mark of injury on any part of the body of the said victim, and the hymen was found old torn. According to the medical officer there was bleeding on account of menstruation but the learned Sessions Judge on the basis' of mere surmise and conjecture Inferred that the bleeding was the result of rape on her. The learned Sessions Judge also went on to observe that for offence of rape penetration of male organ is not necessary and that the bleeding conclusively proved that the victim was raped by the two accused. In our view the Inference drawn was not at all justified from the facts, circumstances and the medical evidence on record and particularly in view of the absence of positive opinion of rape by the medical officer. It may be pointed out here that spermatozoa were not found in the vaginal smear taken by the medical officer. In our view the Inference drawn was not at all justified from the facts, circumstances and the medical evidence on record and particularly in view of the absence of positive opinion of rape by the medical officer. It may be pointed out here that spermatozoa were not found in the vaginal smear taken by the medical officer. In these circumstances It was highly Improbable and incorrect on the part of the learned Sessions Judge to reach to the conclusion as stated above. 21. Both the accused were arrested on 6-4-1999, in the afternoon of the day of the occurrence at about 2 P.M. and according to the evidence of P.W. 9, their underwears were attached at that time vide memos, Ext. Ka. 5 and Ext. Ka. 6. It was mentioned in these memos that the underwears were stained with blood and semen and these were sent to chemical examiner along with the bloodstained Salwar allegedly seized from the scene of the incident. Expert's report, Ext. Ka. 20 was tendered in evidence and as per It Salwar and the two underwears were found stained with human blood; spermatozoa were found on these Items and further that on one of the underwear and Salwar the blood was classified as belonging to group- B. The classification of the spermatozoa was however not positive. The Impact of the expert report need to be considered in the background of the other prosecution evidence relating to the arrest of the two accused. As stated above according to the prosecution the arrest was made at about 2 P.M. on 6-4-1999 in the presence of the Informant Suresh La!. Suresh Lal gave out In the first Instance that the accused were arrested on .,.. April, 1999 but later on claimed that they were arrested next day of the incident and further that they were arrested in the morning hours and that at the time of the arrest their underwears were attached and memorandums, Ext. Ka. 5 and Ext. Ka. 6 were then prepared. Subsequently he gave out that the accused were not arrested In his presence but he had merely shown the house of accused David to the Sub Inspector of Police and at that time the accused were not present there in the house. The evidence of the witness thus make the claim of the prosecution about the arrest of both the accused doubtful. The evidence of the witness thus make the claim of the prosecution about the arrest of both the accused doubtful. It therefore, become highly suspicious as to how and in what manner the two under wears were attached to be sent for chemical examination. Even otherwise It does not appear probable that the two accused continued to put on blood and semen stained under wears till 2 P.M. the time of their alleged arrest. In the attending circumstances of the case and the other factors referred above the possibility cannot be ruled out that these underwears were falsely planted on the accused and were sent for expert report to create evidence against the accused. Here it also need to be mentioned that according to the prosecution Salwar of Km. Rajani was retrieved by the Investigating officer from the tea estate where the rape was allegedly committed on the victim. It is In the evidence of P.W. 1, P.W. 2 and P.W. 3 that Km. Rajani was seen coming all naked from the side of tea garden and she was provided another pair of clothes. However the informant was conscious enough to pick up the abandoned motorcycle bearing registration no. U.P. 07-A-5396 from the alleged scene of the incident with the help of his son to be brought to the Pollee out post at the time of lodging of the F.I.R. It is highly surprising that at that time Salwar of the victim was not seen and taken from there by the informant and others and Instead another pair of clothes was provided to Km. Rajani and the Salwar was left unnoticed there to be seized later on the by the Investigating officer. Considering the manner in which the things went on and the manner In which the Salwar was later on allegedly seized from the tea garden also create suspicion In the claim that the same was stained with spermatozoa at the time of commission of any rape on the victim. Considering the manner in which the things went on and the manner In which the Salwar was later on allegedly seized from the tea garden also create suspicion In the claim that the same was stained with spermatozoa at the time of commission of any rape on the victim. This aspect of the matter also need to be considered In the face of the fact that the vaginal smear taken by the medical officer did not confirm presence of spermatozoa and It is surprising as to how the spermatozoa were to be found on the semen stains of the Salwar by the expert when the prosecution Intended to show that the Salwar had probably been removed from the person of the victim Km. Rajani at the time of alleged commission of rape on her. This again show that no credibility could have been attached to the result of the chemical examination of the above items and more particularly the underwears of the accused to connect them with the offence of rape allegedly committed on Km. Rajani. 22. Accordino to the prosecution the accused at the place of the occurrence on the above motorcycle and took Km. Rajani on It to the tea garden to commit rape on her and that the motorcycle was then abandoned there by them to be later on retrieved by the informant from the place of the occurrence. During the investigation the technical examination of the motorcycle was not done and there is nothing on record to corroborate the evidence of P.W. 1, P.W. 2 and P.W. 3, a senior clerk of the R.T.A. office proved that the motorcycle was registered In the name of one Sanjay Shah. No evidence was collected to show that the motorcycle was stolen or In any other way taken away from the registered owner by some one else or the accused and therefore its possession and ownership could not have been attributed to these accused. Surprisingly enough the motorcycle was not materially exhibited and it appear that to give weightage to the concocted version about the second part of the occurrence the motorcycle was also falsely planted and It was attempted to show that the accused came there at the house of the informant on this motorcycle, took away Km. Rajani on it and then abandoned it in the tea garden after allegedly committing rape on Km. Rajani. Rajani on it and then abandoned it in the tea garden after allegedly committing rape on Km. Rajani. The facts and circumstances of the case and the evidence on record were not at all convincing In regard to the above claim of the prosecution and it could not have safely been accepted that the motorcycle was used by the accused during the commission of the crime. The learned Additional Sessions Judge failed to consider these aspects of the matter in proper perspective and merely went on by the evidence of P.W. 1, P.W. 2 and P.W. 3 to saddle the accused with the responsibility of committing the crimes as against Km. Rajani also. Therefore, the accused could not have been held guilty of the offences under Sections 363/366/506/ 376 I.P.C. In relation to alleged victim Km. Rajani and further that it could not have been directed that she be paid compensation out of the fine to be realized. 23. For the reasons aforesaid the accused could have only been held guilty and convicted for commission of the offences under Section 452 I.P.C. and Section 363 read with Section 511 I.P.C. for having committed house' trespass and making an attempt to kidnap Km. Sushma. The accused In view of the discussion made above are entitled to be held not guilty and to be acquitted on the other counts. In short, the judgment of the learned Additional Sessions Judge dated 30-8-2000 Is to be modified accordingly. 24. In view of the above the appeal is partly allowed and the judgment dated 30-8-2000 under appeal is partly set aside and modified to the extent that both the accused Rinkoo @ Ritesh and David @ Diwakar are acquitted of the charges under Sections 363/366/506/376 I.P.C. and whereas their conviction and sentence to R.I. for three years and fine of Rs. 5,000/- each under Section 452 I.P.C. and R.I;"for three years and fine of Rs. 5,000/- each under Section 363/511 I.P.C. are hereby maintained. In default of payment of fine the accused shall further undergo R.I. for a period of 1/3"' of the period of sentence awarded on both these counts and the sentences were to run concurrently. 25. The accused are in jail since 6-4-1999 and they have thus undergone the sentences awarded. They shall be released forthwith if not wanted in connection with any other case. 26. 25. The accused are in jail since 6-4-1999 and they have thus undergone the sentences awarded. They shall be released forthwith if not wanted in connection with any other case. 26. Let the record be sent back to the court concerned for compliance, to be reported to the court In two months.