Judgment Madhavendra Saran, J. 1. Cr. Appeal No. 311 of 2003 and Cr. Appeal No. 343 of 2003 arise out of the same judgment and as such for the sake of convenience these two appeals have been heard together and the order passed in Cr. Appeal No. 311 of 2003 shall govern both these two appeals. 2. These two appeals are directed against the judgment and order dated 9.5.2003 passed by Shri Alok Chandra Prasad, 7th Addl. Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 206/137 of 1997/2001, convicting and sentencing the appellants under sec. 376/34 of the Indian Penal Code (in short as the IPC) to undergo rigorous imprisonment for ten years with a fine of Rs. 10,000.00 each and in default of payment of fine to further undergo rigorous imprisonment for three years. The amount of fine if deposited shall be paid to the victim girl. 3. Shortly stated the prosecution case as disclosed in the written report of First informant Laxman Prasad Gupta resident of village Baradhi Tola, RS. Akodhi Gola, District Rohtas filed before the officers in-charge of Akodhi Gola Police station on 23.9.1996 is that his daughter Chanchal Kumari, aged about 15 years had gone at the place of her Mausha, Nathuni Sah on 4.9.1996 on the occasion of Krishna Janamasthami alongwith her brother Rajesh Kumar. In the said night informants neighbour Madhu Mian, Scooter Mechanic, kidnapped her for the purposes of marriage with the connivance of accused Sharafat Mian and Raju Mian. The informant further stated that delay in reporting the matter to the police occurred due to the time consumed in searching his daughter. The police on the basis of the written report of the informant registered Akodhigola RS. Case No. 66/96 dated 23.9.1996 and after investigation submitted charge-sheet against four persons including the two appellants namely Sharafat Mian and Raju Mian. After cognizance the case was committed to the Court of Session where charges under sections 366A, 366 and 376 IPC were framed against all the co-accused and the two appellants were also found guilty under sections 376/34 IPC and accordingly they were convicted and sentenced as mentioned above. 4. No witness on behalf of the appellants was examined during trial. No documentary evidence was also produced by them. 5. 4. No witness on behalf of the appellants was examined during trial. No documentary evidence was also produced by them. 5. The case of the defence as it appears from the trend of cross-examination of the prosecution witnesses is that the appellants have been falsely implicated in the case and the victim girl was a consenting party. 6. Altogether 11 witnesses have been examined on behalf of the prosecution and they are RW. 1 Nathuni Prasad, RW. 2 Rajesh Kumar, RW. 3 Sushma Kumari, RW. 4 Savitri Devi, RW. 5 Shanti Devi, RW. 6 Chanchal Kumari (victim), RW. 7 Laxman Prasad Gupta (informant), RW. 8 Dr. Sunila Singh, RW. 9 Md. Rafique Khan, RW. 10 Yunus Khan and RW. 11 Suleman Khan. RWs 10 and 11 are brothers from whose house the victim girl was recovered by the police. 7. As mentioned above it is the case of the prosecution in the written report, Exhibit-1, that Chanchal Kumari (RW. 6) was a minor girl aged about 15 years. Chanchal Kumari was examined in court on 21 April, 1998. She disclosed her age as 14 years and the court assessed her age as 14 to 15 years. The alleged occurrence as mentioned above took place on 23.9.1996 and therefore, she was examined as a prosecution witness after one year and seven months of the alleged occurrence. 8. Dr. Suneela Singh (RW. 8) was posted as Civil Assistant Surgeon in Bikramganj Hospital and on 25.9.1996 she examined Chanchal Kumari and found the following: (i) Secondary sex character well developed; (ii) No mark of violence was found . on her body; (iii) On internal examination her hymen was not found intact. Vagina was distensible. Uterus was retroverted normal size; (iv) Radiological examination of knee joint shows fusion of epiphysis of lower end of femur and upper end of Tibia and febula. She further stated that as per her findings recorded in the report, Exhibit-2, the age of the victim girl was in between 14 to 15 years. 9. P.W. 3 Sushila Kumari aged about 10 to 11 years has stated in court that the victim Chanchal Kumari is her elder sister who is elder to her by five years. The court assessed the age of P.W. 3 as 10 to 11 years and therefore, P.W. 6 Chanchal Kumari was a minor, aged about 15 to 16 years on the date of alleged occurrence. The court assessed the age of P.W. 3 as 10 to 11 years and therefore, P.W. 6 Chanchal Kumari was a minor, aged about 15 to 16 years on the date of alleged occurrence. P.W. 7, who is father of the victim girl has disclosed her age as 13 years. A suggestion was given to this witness that at the time of alleged occurrence, the victim was major one, which he has denied. Then no suggestion was given to P.W. 4, who is mother of the victim girl, that on the alleged date of occurrence Chanchal was a major girl. From what has been mentioned above, it is established that on the alleged date of occurrence Chanchal Kumari was a minor girl below the age of 18 years. Finding given by the trial court on this issue is also the same. 10. It is alleged that on 4.9.1996 Chanchal Kumari had gone at the place of her Mausa Nathuni Sah on the occasion of Krishna Janamasthami alongwith her brother Rajesh Kumar and from there she became traceless. P.W. 1 Nathuni Prasad is the Mausa of the victim girl. He has stated that on 4.9.1996 the alleged occurrence took place. It was the day of Krishna Janamasthami and the son of his Sarhu, Rajesh (P.W. 2) came to his house alongwith his sister Chanchal. Rajesh returned back to Dehri leaving his sister by Bus. In the evening he alongwith his wife sat for Pooja and the same was over at about 10 pm. Thereafter he did not find Chanchal present in the house. He thought that she might have gone at the place of her maternal aunt whose house situates in Brarhigola. He went there but did not find Chanchal present. Thereafter he participated in the Pooja ceremony and next day in the morning he received telephonic message from the informant Laxman to sent back Chanchal. Then he informed him about her non-availability. In cross-examination this witness has admitted that since last 5 to 7 years Chanchal had been visiting his house. 11. P.W. 2 Rajesh Kumar is brother of the victim girl. He has admitted that on the occasion of Krishna Janamasthami he had gone at the place of his Mausa alongwith Chanchal Kumari. He left his sister at the place of his Mausa and returned to Dehri. 11. P.W. 2 Rajesh Kumar is brother of the victim girl. He has admitted that on the occasion of Krishna Janamasthami he had gone at the place of his Mausa alongwith Chanchal Kumari. He left his sister at the place of his Mausa and returned to Dehri. He has further admitted that in the morning when his father asked his Mausa on telephone to send back Chanchal then his Mausa informed that Chanchal was missing since previous night and in spite of search she could not be traced out. This witness has further stated that accused Madhu Mian had told his younger sister Sushma to arrange Rs. 15,000.00 otherwise she would not get back Chanchal. Chanchal was recovered by the police from village Bhediya within the district of Aurangabad. After recovery Chanchal returned back home and informed that accused Madhu Mian, Sharafat Mian, Raju Mian and Azim @ Reyaz took her away by injecting tranquilizer and played with her modesty violently. 12. P.W. 7 is father of victim girl. He has stated that his whole family was invited by Sarhu on the occasion of Krishna Janamastami. On 4.9.1996 his daughter Chanchal and Rajesh went to Brarhigola at the place of their Mausa. He was unwell and so he could not go with them. He has further stated that in the morning through telephone he requested his Sarhu for sending back Chanchal and then he was informed that Chanchal was missing since night itself. This witness has further stated that 18 to 19 days thereafter it was found that Madhu Mian was demanding Rs. 15,000.00 in lieu of his daughter. This information was given to him by his younger daughter Sushma and thereafter as per information furnished by accused Madhu Mian, Chanchal Kumari was recovered from the house situate in village Bhediya. Chanchal Kumari on return disclosed that Madhu Mian and Reyaz Mian both came to Brarhigola on Scooter. They met her in the way when she was going to the house of maternal aunt. Madhu Mian told her that he was sent by her mother as condition of her father was serious. Then she sat behind Madhu Mian on the Scooter and behind her Reyaz Mian also sat down. They met her in the way when she was going to the house of maternal aunt. Madhu Mian told her that he was sent by her mother as condition of her father was serious. Then she sat behind Madhu Mian on the Scooter and behind her Reyaz Mian also sat down. In the way a handkerchief was put on her nose and thereafter she became unconscious and in the morning when she regained consciousness she found herself at an unknown place where Reyaz Mian and a lady was present. When she started weeping Reyaz started assaulting her. She further informed that on the next day Madhu Mian, Reyaz Mian, Sharafat Mian and Raju Mian committed rape on her forcibly. Whenever she tried to weep a tranquilizer was injected to her. In cross-examination this witness has admitted that the accused persons were known to his family members from before as they were running a shop near his shop. He has also admitted that in search of his daughter he went to different places. 13. RW. 4 Savitri Devi is mother of victim girl. She has also stated that on the date of alleged occurrence his daughter Chanchal alongwith Rajesh had gone at the place of her Mausa and next day in the morning through telephone Nathuni Prasad was requested to send back Chanchal and then he informed about missing of Chanchal. Thereafter her husband went there and other places in search of Chanchal but she was not traced out. the Police was informed. She has further stated that one day Madhu Mian told Sushma to provide Rs. 15,000.00 and then he will bring back Chanchal. Thereafter Chanchal was recovered by the police from village Bhediya. Chanchal on return disclosed the entire incident. 14. P.W. 6 Chanchal Kumari is the victim of this case. She has admitted that on the occasion of Krishna Janamasthami she had gone at the place of her Mausa alongwith her brother Rajesh. Her brother Rajesh returned back to Dehh after leaving her there. When her Mausa and Mausi at 8.00 p.m. sat fa Pooja, she started going to the house of her maternal aunt. Accused Madhu Mian and Reyaz Mian met her in the way. They informed that condition of her father was serious and hence she sat on their Scooter without informing any person. When her Mausa and Mausi at 8.00 p.m. sat fa Pooja, she started going to the house of her maternal aunt. Accused Madhu Mian and Reyaz Mian met her in the way. They informed that condition of her father was serious and hence she sat on their Scooter without informing any person. When the Scooter was moving, accused Reyaz Mian put a handkerchief on her nose due to which she became senseless. She regained senses on the next day and found herself at an unknown place where she found Reyaz Mian, Madhu Mian alongwith two persons and a lady. Madhu returned to Dehri but Reyaz stayed there alongwith said lady. On the next day Madhu Mian, Sharafat Mian and Raju Mian came back there and when she asked Sharafat Mian to send her back to her father, he asked her to stay there and threatened to kill her in case she tried to run away. Her signature was taken on plain paper and thereafter all the four accused raped her brutally. She has further stated that 16 to 17 days thereafter the police arrived alongwith Madhu Mian and arrested accused Reyaz Mian and recovered her. After the raid she could know that she was kept confined in the house of Yunus Mian. In cross-examination this witness has said that since childhood she was known to Madhu Mian and Reyaz Mian. She has no enmity with the family of accused persons. When she sat on the Scooter she did not suspect any foul play. Her signature was taken on 4 to 5 plain papers and when she refused to sign she was assaulted and threatened. P.Ws. 10 and 11 are the two brothers from whose house victim girl was recovered. They admitted that the victim girl and Reyaz were recovered from their house. P.W. 10 has admitted that accused Reyaz is the brother of his brother in law. 15. RW. 5 Shanti Devi is Mausi of victim girl. She has supported the prosecution case that on the day of Krishna Janamasthami Chanchal and Reyaz had come to her house. Rejesh went away but Chanchal stayed in the house. She sat for Pooja alongwith her husband and when Pooja was over, they did not find Chanchal in the house. Next day in the morning they informed Chanchals father about her missing from the house. 16. RW. Rejesh went away but Chanchal stayed in the house. She sat for Pooja alongwith her husband and when Pooja was over, they did not find Chanchal in the house. Next day in the morning they informed Chanchals father about her missing from the house. 16. RW. 3 Sushma Kumari has admitted that accused Madhu Mian asked her to provide Rs. 15,000.00 from her parents and then he will bring back Chanchal. 17. Learned counsel appearing for the appellants has argued that much prior to the alleged occurrence love affair was going on between Reyaz Mian and the victim girl and the victim girl was a consenting party to the whole episode. He argued that the informant has falsely implicated the appellants in this case. In the present case what I find that victim girl below the age of 16 years was taken away on wrong pretext to another place and kept confined for a long period. Even if the victim girl had consented to accompany them that would not amount to discretion if once it is proved that she was below the age of majority, the question of consent did not arise at all. 18. Learned counsel further argued that RWs. 10 and 11 from whose house the victim girl was recovered had not named or identified the appellants as one of them who had come to their house during the period of stay of RW. 6 at their house. It is now admitted position that the victim girl was recovered alongwith Reyaz Mian by the Police from the house of RWs. 10 and 11. It also appears from the evidence that the said recovery by the police was made in presence of accused Madhu Mian. RWs. 10 and 11 however, have tried to explain that the girl was brought to their house on the alleged date of recovery. As mentioned above it has come in the evidence of prosecution witnesses that accused Madhu Mian asked RW. 3 to get him paid Rs. 15,000.00 through her father and mother and then he will bring back her sister Chanchal. After the said information the police at the instance of accused Madhu Mian recovered the victim girl from the house of RWs. 10 and 11. It is admitted position that RWs. 10 and 11 are relatives of co-accused Reyaz Mian, therefore, their evidence has to be examined with care and caution. After the said information the police at the instance of accused Madhu Mian recovered the victim girl from the house of RWs. 10 and 11. It is admitted position that RWs. 10 and 11 are relatives of co-accused Reyaz Mian, therefore, their evidence has to be examined with care and caution. The mere fact that these witnesses did not name the appellants as the persons who had come to their house during the period of stay of the victim is not sufficient to show that the appellants did not participate in the alleged occurrence. It is also not clear that as to why RWs. 10 and 11 were made prosecution witnesses. In this connection it is relevant to mention here that Sec.165 Cr.P.C. provides general power of search on the chance that something might be found. In order to ensure that the search is conducted fairly the law makes it obligatory that at the time of search two independent and reliable witnesses of the locality should be present. After preparation of seizure memo a copy of the same shall be given to the owner or the occupier of the place searched. Therefore, RWs. 10 and 11 whose house was searched should only have been given a copy of search and seizure memo. From the evidence on record and linking chain of circumstances, it is established that soon after kidnapping the victim girl was taken to the house of RWs. 10 and 11 and kept there till her recovery by the police. The victim girl (RW. 6) as mentioned above has narrated the circumstances under which she was raped by all the four accused including the appellants. 19. Learned counsel then argued that there is abnormal delay in lodging the F.I.R. and in face of serious contradictions appearing in the evidence of the prosecutrix the appellants deserve benefit of doubt. In support of his contention, learned counsel placed reliance on a decision of this Court given in the case of Shanker Shambhu Sah vs. The State of Bihar, reported in 2004(4) PLJR 755 . It is settled view that mere delay in filing First Information Report is no ground to doubt the prosecution case. There may be various reasons for filing F.I.R. after some delay. It is settled view that mere delay in filing First Information Report is no ground to doubt the prosecution case. There may be various reasons for filing F.I.R. after some delay. In the present case, the informant has offered explanation for delay and the same appears to be satisfactory for the simple reason that courts cannot overlook the fact that in sexual offences delay in lodging the F.I.R. can be due to variety of reasons particularly the reluctance of the informant and his family members to go to police station to complain about the incident which concerns the honour of the family. It is settled principle that in case of rape conviction can be recorded on the sole evidence of the prosecutrix where her evidence is found to be reliable. The prosecutrix admittedly is a minor girl. Soon after return from the custody of the accused persons she narrated the incident to her father, mother, brother and other family members as to how she was ravished by the appellants and other accused. There is nothing in the evidence to show that her family has any enmity with the appellants. The doctor has found her vagina distensible. The absence of injury on prosecutrix shows that she did not resist but absence of injury is not by itself sufficient to hold that she was a consenting party. It is the evidence of the prosecutrix that she was assaulted also by the accused persons. Therefore, it cannot be ruled out that for fear of being assaulted she had not resisted. Moreover the accused were four in number and the prosecutrix being a girl below the age of 16 years was not expected to offer resistence as would cause injuries to her body. 20. Appellants counsel then argued that the prosecution intentionally did not examine the Investigating Officer so that vital contradictions on material point of naming the appellants with the allegation of rape was not alleged before the Police in the statement of victim girl and for the first time the tutored evidece of P.W. 6 was made in court. It is true that in the present case the Investigating Officer was not examined. It is true that in the present case the Investigating Officer was not examined. It is correct to say that as a principle it cannot be said that non-examination of Investigating Officer will always be fatal to the case of the prosecution but when the attention of rosecution witness is drawn towards contradictions in their evidence and their statement made before the Investigating Officer, in that non-examination of Investigating Officer without sufficient reason will certainly cause prejudice to the appellants. Now in the present case it is proved that the victim girl was recovered from the house of RWs. 10 and 11. She remained in their house for many days. I have mentioned above that RWs. 10 and 11 whose house was searched should only have been given a copy of search and seizure memo. It is not clear as to why these two persons were made prosecution witnesses. Subsection 2 of Sec.172 Cr.P.C. empowers a court to send for the case diary of the case under trial which may also use the diary, but only for the purpose of aid the court in trial and not as evidence in the case. This provision makes it clear as to what extent the case diary may be used by a court in a trial but limitation is that it cannot be used as evidence. So when attention of witnesses has been drawn towards their previous statement then the Investigating Officer if he is brought in court will affirm only what he had noted in the case diary. He cannot add or subtract from that. In the above background it is now necessary to examine the case diary to ascertain as to how the matter proceeded during investigation. As mentioned above the case was registered at the Police Station on 23.9.1996 at 16.15 hours. It appears that on the same day informant Laxman Prasad Gupta was further examined by the Investigating Officer. On the same day after 17.00 hours the Investigating Officer examined witness Nathuni Prasad Gupta (RW. 1), Shanti Devi (P.W. 5), Savitri Devi (P.W. 4), Sushma Kumari (P.W. 3), Rajesh Kumar (P.W. 2). On 24.9.1996 at 15.00 hours the Investigating Officer recorded the statement of co-accused Madhu Mian and thereafter on 25.9.1996 raided the house of Yunus Khan and recovered the victim girl. 1), Shanti Devi (P.W. 5), Savitri Devi (P.W. 4), Sushma Kumari (P.W. 3), Rajesh Kumar (P.W. 2). On 24.9.1996 at 15.00 hours the Investigating Officer recorded the statement of co-accused Madhu Mian and thereafter on 25.9.1996 raided the house of Yunus Khan and recovered the victim girl. Thereafter he recorded the statement of Yunus Khan (P.W. 10) and Suleman Khan (P.W. 11), prepared the seizure memo and returned back to Police Station. On the same day i.e. 25.9.1996 he sent the victim girl for medical examination with requisition in which one of the questions put was whether the victim girl has been raped. It appears that thereafter the statement of victim girl (P.W. 6) was recorded by the Investigating Officer. Now no question was put to the victim girl whether she has been raped also. It further appears from the case diary that after 5.10.1996 the supervision note of D.S.R Headquarter was received in which he found the case to be true under sections 366/366A/376 I.P.C. It appears that sometime before 1.11.1996 the Investigating Officer was put under suspension and further investigation was handed over to Md. Rafique Khan, Officer Incharge of Akhorigola Police Station. The second Investigating Officer after concluding the investigation submitted chargesheet under sections 366, 366A and 376/34 I.PC. It is not clear from the case diary as to why no question regarding commission of rape was put to the prosecutrix. The Investigating Officer in the present case had not taken the care expected of them. There is no doubt that the investigation in the present case was casual and defective. In case of defective investigation, the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused solely on account of the defect; in the words of the Apex Court to do so would tantamount to playing into the hands of the Investigating Officer, if the investigation is designedly defective, {AIR Supreme Court 1995 page 2472-Karnel Singh vs. The State of M.P.). 21. In the case of State of Maharashtra vs. Chandraprakash Kewalchand Jain (AIR 1990 Supreme Court 658) it has been observed as following: "16. A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under S. 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to S. 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy, if the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a. strong motive to falsely involye the person charged, the Court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness." 22. I have mentioned above as to how the case was investigated by the Investigating Officer. The prosecutrix had no control over the Investigating Agency. It has come in the evidence of RW. The degree of proof required must not be higher than is expected of an injured witness." 22. I have mentioned above as to how the case was investigated by the Investigating Officer. The prosecutrix had no control over the Investigating Agency. It has come in the evidence of RW. 6 that during her period of stay in the house of RWs. 10 and 11 the two appellants visited the house. The victim girl requested the appellant Sharafat Mian to take her to her fathers house. He threatened her that if she will raise alarm she will be killed.-She has further stated that thereafter she was brutally ravished by all the accused including the appellants. The evidence of RW. 6 is very clear, cogent and creditworthy. The court can separate truth from falsehood and the negligence of Investigating Officer couid not affect the credibility of statement of prosecutrix. Her testimony suffers from no infirmity or blemish whatsoever. Moreover there is nothing on record to show as to why it couid be said that the victim tried to foist a false case. 23. Each case has to be judged on its own fact. The main question is whether the story disclosed by the witnesses in the present case can be believed or not. The trial court which had the benefit of watching the demeanour of the witnesses is the best judge. The story disclosed by RW. 6 after recovery as mentioned above has been supported by her family members. The trial court has accepted the evidence. There is no reason why they would give false evidence. 24. In the above facts and circumstances, I see no reason to interfere with the findings recorded by the trial court. 25. Now coming to the question of sentence, I find that the two appellants are facing this case since the year 1996. They are in custody since last three to four years. I am therefore, of the opinion that the ends of justice will be met if the sentence awarded to the appellants is reduced to seven years rigorous imprisonment with a fine of Rs. 2,000.00 each and in default of payment of fine to further undergo rigorous imprisonment, for six months. 26. With the above modification in the sentence, these two appeals are dismissed.