ANWAR AHMAD, J.:-Both the aforesaid criminal appeals arise out of the same Sessions Trial No. 82 of 1999/10 of 1999 and hence they have been taken up together and are being disposed of by this common judgment. 2. Both the criminal appeals have been directed against the judgment of conviction and order of sentence dated 4.9.2003 passed by Shri Arun Kumar Srivastawa, 1st Additional Sessions Judge, Gaya, in Sessions Trial No. 82 of 1999/10 of 1999. 3. The learned Additional Sessions Judge has convicted the appellant Sanjeet Kumar for the offence under Sections 376 and 323 of the Indian Penal Code (in short, IPC) and sentenced to undergo R.I or 10 years with fine of Rs. 10,000/- for the offence under Section 376 IPC and in default of payment of fine has further been sentenced to undergo R.I. for two years and six months and further sentenced to undergo R.I. for six months for the offence under Section 323 IPC with the order to run both the sentences concurrently. 4. The learned Additional Sessions Judge has convicted the appellant Ishwar Prajapati for the offence under Section 201 IPC and sentenced to undergo R.I. for three years with a fine of Rs. 5,000/- and in default of payment of fine to undergo R.I. for a further period of nine months. 5. Mamta Kumari aged about 13 years, daughter of Dashrath Mistri of Village & P.S. Khaira in the district of Jamui iodged an FIR on 7.7.1998 at Bodh Gaya Police Station alleging therein that her elder sister Shakuntala Devi was married to Sanjeet Kumar of Village Mastipur, P.S. Bodh Gaya on 24.6.1998. On 25.6.1998 her sister went to her Sasural at Village Mastipur and she also accompanied her. Her brother-in-law Sanjeet Kumar was living in the house of Dr. P.C. Rai at village Pachhatti in two rooms on rent and was working there as photographer. It is alleged that on 2.7.1998 at 5. P.M. her brother-in-law came to village Mastipur and asked his wife to let her younger sister to go Pachhatti to cook meal. It is alleged that her sister herself wanted to go there but her brother-in-law forcibly took the informant to Village Pachhatti. The informant saw Lakhan Yadav and Mithilesh Yadav, friends of her brother-in-law, present there. On reaching there, her brother-in-law himself cooked chicken and rice. The informant and others took the meal. It is alleged that her sister herself wanted to go there but her brother-in-law forcibly took the informant to Village Pachhatti. The informant saw Lakhan Yadav and Mithilesh Yadav, friends of her brother-in-law, present there. On reaching there, her brother-in-law himself cooked chicken and rice. The informant and others took the meal. Thereafter the informant asked her brother-in-law to take her to Village Mastipur but he asked her to wait. The informant after a short while felt thrust and asked for water to her brother-in-law and he after taking a bottle from the fridge and a glass went to another room and thereafter gave a glass of water to her. The informant started drinking water and felt that the test was otherwise and hence she asked her brother-in-law as to what type of water he had given to her. Her brother-in-law told that water was good and asked her to drink. It is alleged that she drank some water and threw the remaining water. It is alleged that it was 11 O’ Clock in the night and she all of a sudden felt sleep. She lay down on the bed and she was in some sense. Thereafter her brother-in-law began to undress her whereupon she protested. It is alleged that her brother-in-law showed a knife and threatened to pierce the knife if she raised hulla. She became fearful and kept quiet. Thereafter her brother-in-law tied her face with a towel and thereafter unbuttoned her shirt and untied her skirt and made her naked. It is alleged that her brother-in-law also made himself naked and thereafter began to kiss and press her breast. She protested and thereupon her brother-in-law assaulted her with leg, fist and slaps causing injury below the left eye. Thereafter, it is alleged, her brother-in-law climbed over her and started to press his finger in her private part and thereafter she had no sense. It is alleged that a Video Camera was moving in the room. After 2-3 hours when she regained full sense, her brother-in-law asked her as to whether she would see cinema and placed the cassette in the V.C.R. and moved the same. She saw the entire film showing that her brother-in-law was doing bad acts with her. It is alleged that she remained silent and in the early morning she wept before Lakhan. She saw the entire film showing that her brother-in-law was doing bad acts with her. It is alleged that she remained silent and in the early morning she wept before Lakhan. It is alleged that Lakhan took out the cassette from the V.C.R. and handed over the same to the wife of Dr. P.C. Rai. It is alleged that on her weeping the said cassette was handed over to her. Thereafter it is alleged that she alongwith Lakhan returned to Village Mastipur and disclosed the incident to her sister who asked her to keep quiet failing which her husband would kill both of them. Her sister further stated that her brother was coming today to whom they would narrate the incident. It is alleged that at about 3 P.M. her brother Anil Vishwakarma with Ishwar Prajapati came there. It is alleged that informant's sister narrated the incident to her brother and Ishwar Prajapati and handed over the cassette to Anil Vishwakarma, Ishwar Prajapati snatched the said casette from her brother saying that someone would snatch the same from him. It is alleged that Anil Vishwakarma made a telephone call and informed his family members at Village Khaira. It is said that on 4.7.1998 informant's other brothers Bijay Vishwakarma, Birendra Vishwakarma, father Dashrath Mistri, Jagdish Mistri and Shambhu Mistri came there and they all took the informant and her sister Shakuntala Devi and Sanjeet Kumar to Village Khaira. It is alleged that his brother wanted to see the cassette in the shop of Ishwar Prajapati who did not allow him to see the cassette and he and his brother Anant Kumar concealed the cassette. It is said that informant's brother-in-law and Ishwar Prajapati were-partners and they had purchased video camera in joint-ness and the said video camera remained with her brother-in-law. At the time of going, informant's brother took some cassettes and VCR from the house of her brother-in-law but the cassette which had recorded bad act was kept concealed by Ishwar Prajapati and his brother Anant Prajapati. It is alleged that on 7.7.1998 the police of Bodh Gaya came to the house of informant at Village Khaira and took her alongwith Anil Vishwakarma to Bodh Gaya Police Station where she lodged the case. It is alleged that on 7.7.1998 the police of Bodh Gaya came to the house of informant at Village Khaira and took her alongwith Anil Vishwakarma to Bodh Gaya Police Station where she lodged the case. It is alleged that her brother-in-law Sanjeet Kumar, Lakhan Yadav, Mithilesh Yadav, Ishwar Prajapati and his brother Anant Kumar under a conspiracy got bad acts committed, video cassette prepared and kept the cassette concealed. On the basis of this statement, a case under Sections 376, 323, 120B/34 IPC was registered against five accused persons. 6. Charge-sheet against four accused persons namely, Sanjeet Kumar, Mithilesh Yadav, Lakhan Yadav and Anant Kumar was submitted under Sections 376, 323, 120B I.P.C. keeping the investigation pending against Ishwar Prajapati. Subsequently, supplementary charge-sheet was submitted under Sections 376, 323, 292, 120B I.P.C. against Ishwar Prajapati, Cognizance of the offence was accordingly taken. 7. The defence case of the appellant Sanjeet Kumar as per his statement under Section 313 Cr.P.C. is that he was married after practising fraud in illegal manner and he was not ready to keep the girl and for that he was kidnapped, his property, V.C.R. Camera were looted away and he was assaulted and for that he filed a case and in defence this false case was instituted against him. 8. The defence case of appellant Ishwar Prajapati is that he was asked to give evidence but he refused and hence he was falsely implicated in this case. 9. Five persons namely, Sanjeet Kumar, Lakhan Yadav, Mithilesh Yadav, Ishwar Prajapati and Anant Kumar faced trial for the offence under Sections 376(g), 120B/34 and 201 IPC. Accused Sanjeet Kumar further faced trial for the offence under Section 323 IPC also. After trial, appellant Sanjeet Kumar and Ishwar Prajapati were convicted and sentenced as stated above whereas three accused namely, Lakhan Yadav, Mithilesh Yadav and Anant Kumar were acquitted. 10. Being aggrieved by and dissatisfied with the impugned judgment and order the present appeals have been filed to set aside the said judgment and order. 11. The prosecution has examined altogether 9 witnesses in this case to prove the case whereas no evidence, oral or documentary, has been adduced on behalf of the defence. 12. First of all I would like to discuss the evidence of the main witness Mamta Kumari, the victim, who has been examined as PW-5. 11. The prosecution has examined altogether 9 witnesses in this case to prove the case whereas no evidence, oral or documentary, has been adduced on behalf of the defence. 12. First of all I would like to discuss the evidence of the main witness Mamta Kumari, the victim, who has been examined as PW-5. She stated that on 24.6.98 her elder sister Shakuntala Devi was married to sanjeet Kumar of Bodh Gaya. On 25.6.98 Bidaee of her sister took place and she also accompanied her sister to Bodh Gaya. She stated that Sanjeet Kumar was living in the two rooms in the house of Dr. P.C. Rai on rent in Village Pachhatti and was working as photographer. Ishwar Prajapati acted as a middle man in the marriage. She stated that on 2.7.98 she alongwith her sister was in the house of her brother-in-law at village Mastipur. Her brother-in-law asked her to go to Bodh Gaya for cooking but her sister protested and said that she would herself prepare the food but appellant Sanjeet Kumar forcibly took her to Bodh Gaya saying that some guests had come and hence food was to be prepared. She stated that when she reached Pachhatti, she found no guest. She stated that Sanjeet Kumar himself prepared the meal of chicken and rice. She took the meal and asked for water from her brother-in-law who took a bottle from the fridge and went to another room with bottle and a glass and thereafter offered a glass of water to her. She drank some water but taste of water was not good and hence she threw remaining water. After taking water she started feeling intoxicated and she lay down on the bed in the room Sanjeet Kumar came there and began to undress her. She protested and in spite of that Sanjeet Kumar made her naked. She further stated that Sanjeet Kumar forcibly committed rape on her but she protested and for that Sanjeet Kumar assaulted her with leg, fist and slap and she received injury below the left eye. She stated that Sanjeet Kumar made her naked and also made himself naked and started to kiss her, press her beast, entered his finger in her private part and thereafter his penis. She stated that thereafter she lost her sense. She stated that Sanjeet Kumar made her naked and also made himself naked and started to kiss her, press her beast, entered his finger in her private part and thereafter his penis. She stated that thereafter she lost her sense. After two or three hours she regained her sense and saw a video camera moving there in the room. Sanjeet Kumar asked her as to whether she would see the film and fitted a cassette in the VCR and showed the entire picture of the commission of rape by Sanjeet Kumar upon her. Thereafter Sanjeet took out the cassette from the VCR and kept the same with him and slept. She stated that she took the cassette and handed over the same to the wife of Dr. P.C. Rai. She stated that she asked about the way of mastipur from a boy and thereafter she went to his sister at Mastipur She narrated the incident of bad acts committed upon her by Sanjeet Kumar to her sister who asked her to keep quiet otherwise Sanjeet would kill both of them. Thereafter she stated that she and her sister came back to Pachhatti. On the same day her brother alongwith Ishwar Prajapati came to Pachhatti from Village Khaira. She stated that she disclosed the incident to her brother Anil Vishwakarma. She brought the cassette from the wife of Dr. RC. Rai and handed over the same to her brother from whom Ishwar Prajapati snatched the cassette saying that someone would take it away. Thereafter her brother Anil Vishwakarma made a phone call to Jamui whereupon on 4.7.98 her another brother Birendra Vishwakarma, father Dashrath Mistri, Jagdish Prajapati and Shambhu Modi came to Pachhatti. They started to take her and her sister to Pachhatti and Sanjeet Kumar also accompanied them. Thereafter they reached home at Village Khaira. She further stated that on 7.7.98 police of Bodh Gaya came there and took her alongwith her brother Anil Vishwakarma, Birendra Vishwakarma and Sanjeet Kumar to Bodh Gaya where on that day she gave her statement i.e. Fardbeyan (Ext. 1). Thereafter she was medically checked up and she also gave statement in the court (Ext. 2). 13. PW-1 is Anil Vishwakarma, brother of the informant. He narrated the entire occurrence as learnt from his sister Mamta Kumari. He has proved his signature and also the signature of his sister Mamta Kumari on the FIR. 1). Thereafter she was medically checked up and she also gave statement in the court (Ext. 2). 13. PW-1 is Anil Vishwakarma, brother of the informant. He narrated the entire occurrence as learnt from his sister Mamta Kumari. He has proved his signature and also the signature of his sister Mamta Kumari on the FIR. He further stated fifteen days of the occurrence to the police. He stated that the said cassette was obtained by Jagdish Mistri from his son-in-law Ishwar Prajapati, the appellant, and handed over the same to him. He stated that he prepared a duplicate copy of the said cassette by mechanical process and handed over the original cassette to the I.O. but the cassette produced by the I.O. was not the said cassette which he handed over. 14. PW-2 is Birendra Vishwakarma, another brother of the informant. He has supported the occurrence as learnt from his sister Mamta Kumari. 15. PW-3 is Ganga Sharan Ram Tripathi, Judicial Magistrate who recorded the statement of the victim Mamta Kumari under Section 164 Cr.P.C. (Ext. 2). 16. PW-4 is Dr. Meena Kumari who examined the victim Mamta Kumari. She assessed the age of Mamta Kumari as 14 years. She found two abrasions, one on the left side of the face and another on the left below joint. She opined that Mamta was subjected to rape. She has proved her medical report (Ext. 3) and also supplementary report (Ext. 3/1). 17. PW-6 is Anil Prasad Sinha, SI of Police. He stated that he filed supplementary charge-sheet against appellant Ishwar Prajapati. 18. PW-7 is Pramod Kumar Singh, Dy. S.P. He stated that he supervised the case and in that course the alongwith the I.O. Ashok Kumar Sinha happened to see the film on the cassette and saw the appellant Sanjeet Kumar undressing Mamta, assaulting her and committing rape upon her. 19. PW-8 is Ashok Kumar Sinha, the then O/C of Bodh Gaya P.S. He stated that he recorded the statement of the victim Mamta Kumari (Ext. 1) and drew the formal FIR (Ext. 4). He stated that he inspected the P.O. and has given the details thereof. He stated that he sent the victim to Lady Elgin Hospital, Gaya for examination. He has proved the forwarding report (Ext. 5). He obtained medical report. He stated that on 11.8.98 Anil Vishwakarma handed over the cassette to him and he alongwith Dy. 4). He stated that he inspected the P.O. and has given the details thereof. He stated that he sent the victim to Lady Elgin Hospital, Gaya for examination. He has proved the forwarding report (Ext. 5). He obtained medical report. He stated that on 11.8.98 Anil Vishwakarma handed over the cassette to him and he alongwith Dy. S.P. and others saw the cassette on the VCR. He stated that he seized 36 cassettes from the P.O. and kept the same in Malkhana. 20. PW-9 is Vijay Kumar Singh, ASI and Incharge of Bodh Gaya Police Station. He stated that the seized cassettes were, called from the Court of CJM but the alleged cassettes were not available and Malkhana register did not show the entry of the said cassettes. He stated that he sent a report to the Public Prosecutor (Ext.6) accordingly. 21. The learned lawyer for the prosecution submitted that as per the evidence of the victim Mamta corroborated by the evidence of her two brothers, medical evidence and the evidence of I.Os., the case stands proved beyond all reasonable doubts and hence both the appeals are fit to be dismissed. 22. The learned lawyer for the appellants on the other hand submitted that prosecution has failed to prove this case. He submitted that the cassette in question has not been illegally brought on record and hence whatever cassette has been produced they cannot be taken into consideration. He further submitted that as the cassette in question has not been illegally brought on record, hence, the evidence of the witnesses including the evidence of police officers are fit to be thrown out and are not worth consideration. There appears substance in this submission of the learned lawyer for the appellants and I do agree that the cassette in question which was not brought on record could not be taken into consideration and hence evidence adduced on that cassette is not worth reliance. 23. The appellant Sanjeet Kumar in his statement under section 313 Cr. P.C. advanced his defence case that he was married after practising fraud upon him in an illegal manner and hence he was not ready to keep the girl. In course of trial, learned defence lawyer has not put any question on this point to any of the witnesses. The appellant Sanjeet Kumar in his statement under Section 313 Cr. P.C. advanced his defence case that he was married after practising fraud upon him in an illegal manner and hence he was not ready to keep the girl. In course of trial, learned defence lawyer has not put any question on this point to any of the witnesses. The appellant Sanjeet Kumar in his statement under Section 313 Cr. P.C. further advanced his case that he was kidnapped, assaulted and his property was looted away because he was not ready to keep the girl. No question on such defence case had been asked by the defence to any witness. Of course, suggestion was given to the prosecution witness that Sanjeet Kumar was taken away by his brother-in-law Anil Vishwakarma and others without any knowledge of her mother and hence her mother filed a case of kidnapping. The appellant Sanjeet Kumar in his statement under Section 313 Cr. P.C. stated that it was he who filed a case of kidnapping whereas as per the suggestion and also the evidence of PW-8 Ashok Kumar Sinha, the then O/C of Bodh Gaya P.S., his mother Ranmaniya Devi filed the case of kidnapping before the Bodh Gaya P.S. being Bodh Gaya P.S. Case No. 56/98 under Section 364 and allied Sections of the Indian Penal Code. 24. In the facts and circumstances of the case, the evidence and the statement of appellant Sanjeet Kumar under Section 313 Cr. P.C. I am of the view that defence case cannot be accepted. 25. The learned lawyer for the appellants submitted that the occurrence is said to have taken place on 2.7.98 whereas the case was lodged on 7.7.98 i.e. after the inordinate delay of five days. So he submitted that the case becomes doubtful. Of course, there is delay of five days in lodging the FIR but the delay in my opinion stands explained inasmuch as the informant as per the evidence did not intend to lodge any case but when the police of Bodh Gaya reached the house of the informant and disclosed that a case of kidnapping has been filed, thereupon the present case was filed. 26. The learned lawyer for the appellants submitted that witnesses who have examined are close relations and no independent witness has been examined. He submitted that important witnesses such as Shakuntala Devi, elder sister of the victim and wife of appellant Sanjeet Kumar, Dr. PC. 26. The learned lawyer for the appellants submitted that witnesses who have examined are close relations and no independent witness has been examined. He submitted that important witnesses such as Shakuntala Devi, elder sister of the victim and wife of appellant Sanjeet Kumar, Dr. PC. Rai and his wife, Paras Nath Mistri, Uma Devi, L.M. Das, Police Officer who went to Village Khaira and informed the case of kidnapping and brought the informant and others to Bodh Gaya have not been examined. He submitted that no explanation has been given as to why these witnesses were withheld and hence he submitted that their non-examination is not only fatal to the prosecution case but the whole case stands vitiated. In support of his contention he referred to some decisions such as AIR 1971 SC 1586 , AIR 1954 SC 51 and 1998(2) PLJR 434. 27. Of course some material witnesses have not been examined in this case but in my opinion, their non-examination is not brought on record. The evidence of the victim Mamta Kumari, PW-5, is quite natural, consistent and convincing and in my opinion, her statement alone proves the case. In this case, apart from the evidence of victim, her two brothers Anil Vishwakarma (PW-1) and Birendra Vishwakarma (PW-2) have corroborated the statement of the victim. Not only this, the medical evidence also corroborates the case. So, I find and hold that prosecution has proved the case beyond the shadow of reasonable doubts. 28. As discussed above, I find and hold that the offence alleged to have been committed by the appellant Sanjeet Kumar stands proved beyond all reasonable doubts. 29. So far appellant Ishwar Prajapati is concerned, he has been convicted under Section 201 IPC for causing disappearance of evidence. As per the evidence on the record, the appellant Ishwar Prajapati is said to have taken the cassette in question from Anil Vishwakarma, brother of the victim and did not handover the said cassette on demand. 29. So far appellant Ishwar Prajapati is concerned, he has been convicted under Section 201 IPC for causing disappearance of evidence. As per the evidence on the record, the appellant Ishwar Prajapati is said to have taken the cassette in question from Anil Vishwakarma, brother of the victim and did not handover the said cassette on demand. As per the evidence on the record, Jagdish Mistri, father-in-law Ishwar Prajapati and handed, over the same to Anil Vishwakarma, brother of the victim and Anil Vishwakarma handed over the same to the I.O. It is said that some portion of the cassette was damaged or erased by the appellant Ishwar Prajapati but the said cassette was not legally brought on record and hence it is difficult to say that the appellant Ishwar Prajapati damaged or erased some portion of the cassette. 30. As discussed above, I find and hold that the prosecution has not succeeded to prove that the appellant Ishwar Prajapati caused disappearance of evidence by damaging or erasing some portions of the cassette in question. 31. In the result, Cr. Appeal No. 498 of 2003 is dismissed. The Conviction and sentence passed by the learned Additional Sessions Judge against the appellant Sanjeet Kumar is upheld. So far Cr. Appeal No. 448 of 2003 is concerned, this appeal is allowed. The conviction and sentence passed by the learned Additional Sessions Judge against the appellant Ishwar Prajapati is set aside. The appellant Ishwar Prajapati is set at liberty and he is discharged from the liability of his bail bonds.