JUDGMENT R.B. Misra, J. The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of criminal Procedure in reference to judgment dated 24.03.2005, passed by the Learned Additional Sessions Judge, Fast Track Court, Shimla, H.P. in Sessions trial No. 34-S/7 of 2004/03 acquitting the alleged accused/respondent under Sections 376, 302 and 201 of the Indian Penal Code, in reference to FIR No.84 of 2003 dated 26.7.2003. 2. The prosecution story, in brief, is that on 25.7.2003, at about 4.00 PM, complainant, brother of Smt.Reeta/(deceased) was informed by S/Sh.Dula Ram, Kewal Ram Sharma and Shyam Singh Jhinta that his sister had expired and her body was lying in a field. While lodging the report, complainant initially expressed suspicion that since accused Ram Lal in past had been beating Reeta and on one occasion, compromise was effected between accused Ram Lal and the deceased. As such, on the complaint, ASI Ramesh Kumar went to the spot and found the dead body of Reeta / (deceased) in an injured condition, under a tree, in the field of one Sh.Jeet Singh. There were injury marks particularly on the left eye, left ear and neck. On both the legs, there were cut marks and blood was oozing and on the back bluish marks were also appearing. The dead body of Reeta was sent to Civil Hospital, Nerwa, where postmortem was conducted. After investigation, the accused was charged for the aforesaid offence. After investigation, it was found that accused-respondent was found to have forcibly sexually assaulted the victim/deceased Reeta and had killed her by assaulting. 3. In order to prove its case, the prosecution examined as many as 19 prosecution witnesses. Whereas, the accused / respondent through his statement under Section 313 of Cr.P.C. has denied the prosecution case. 4. In order to adjudicate present criminal appeal, it is necessary to scrutinize the prosecution witnesses and material on record. PW.1 Sh.Balbir Singh, the brother of Reeta / deceased while supporting the prosecution case has stated that Rapat No.9 dated 25.7.2003 was lodged in respect of the death of Reeta. PW.1 has further stated that while he was going to the spot along with Virender and Sher Singh they observed mark of injuries and bruises on the body of deceased. Inquest reports (Ex.PB and Ex.PC) were prepared. PW.1 has further stated that while he was going to the spot along with Virender and Sher Singh they observed mark of injuries and bruises on the body of deceased. Inquest reports (Ex.PB and Ex.PC) were prepared. Many other persons had assembled on the spot including accused Ram Lal and husband of deceased Reeta was also present there. As per testimony of PW.1, the postmortem was conducted on 26.07.2003. 5. Sh.Joginder Singh (PW.2), student of +2, Government Senior Secondry School, Nerwa, has stated that at the time of incident he was staying in the house of accused Ram Lal. PW.2 also stated that accused Ram Lal used to live along with his wife. PW.2 has further stated that Reeta/(deceased) also used to live in the same house as she was the wife of Mohan Lal (brother of the accused). As stated by PW.2, on 25.07.2003, Reeta went to take fodder leaves and she hanged herself with rope, as while she was going from house she had taken rope and sickle. Initially PW.2 did not support the prosecution case. 6. Smt.Geeta (PW.3) the wife of accused Ram lal, initially also did not support the prosecution case by saying that Mohan Lal is younger brother of accused Ram Lal and Reeta was her Devrani, i.e., wife of younger brother of Mohan Lal. PW.3 has also stated that Reeta/(deceased) had two daughters and families of Mohan Lal and that of accused Ram Lal had been residing in the same house and Joginder Singh (PW.2) also used to reside in their house. PW.3 has further stated that on 25.07.2003, Reeta hanged herself, as her son had died and she had become mentally upset and for that reason she used to say that she would commit suicide by taking poison. On account of her such mental condition, she hanged herself. The aforesaid two witnesses Joginder Singh (PW.2) and Smt.Geeta (PW.3) did not support the prosecution case initially, however, subsequently on 4.8.2003 had gone to Judicial Magistrate concerned for giving their statements independently under Section 164 of Cr.P.C., which are useful and are totally in support of the prosecution, however, such statements would be dealt with in detail at later stage. 7. 7. Dr.J.S.Chandel, Medical Officer, the then Incharge, Civil Hospital, Nerwa, conducted the autopsy on 26.07.2003 on the body of Reeta/(deceased) and noticed as under:- “Physical findings: Height about 5” of medium sized physique, average built and wearing clothes black coloured wasket, printed Dupatta reddish in colour, reddish brown printed Salwar Kameez and red colour under wear. Post mortem changes during autopsy. 1. Contused lacerated wound 3” x ½” upon left side vertex. 2. Marbling present upon arms and upper chest. 3. Putrefaction present bloating of features present. 4. Lividity present and fixed. 5. Ova of flies seen upon the anterior abdominal wall overline area of putrefaction bullae two in number. External general appearance: Features blotted, putrefaction present right and left eyes closed. Bleeding from left eye (clotted blood present) and petechial haemorrhages in the skin of eye lids. Left nostrils bleeding present. Bleeding from mouth was present. External injuries: 1. C.L.W. left side vertex 3” x ½” skin deep. 2. Left knee joint dislocated. 3. Right knee joint grossly contused and abraded. 4. Superficial veins in the neck region, below the chin engorged, congested, abrogation present. 5. Abdomen bloated, greenish discolouration present. 6. Right clavicular area bruised and contused. 7. Both legs, thighs, contused and bruised and abraded. 8. Right and left foot contused and abraded grossly. 9. Inner thighs bruises present, multiple abrasions with blurred margins. (vital reaction present) vagina swollen. 10. Generalized signs of torture/violence present all over the body. Internal injuries: Scalp findings 3” x ½” left side vertex (already mentioned). Scalp area behind the ears-petechial haemmorrhages present. There was no fracture of any skull bones. Meninges, meningeal spaces & Cerebral vessels : normal. Brain findings normal. Neck Tongue swollen, bitten, bleeding present petechial haemorrhages present on the skin of eye lids, face and forehead. Hyoid bone not fractured. Trachea walls, hyperemic. Cervical spine not fractured. Keeping in view the medico legal autopsy on the body of Reeta/(deceased) and in view the reports of Chemical Examiner, in respect of viscera, PW.4 has opined that deceased might have been attacked from all side and after inflicting injuries upon all the parts / organ / system of the body, by hard blunt substance like Danda, fist and kick blows. PW.4 has also opined that injury which was found on the scalp on the dead body could be caused with Dandas. PW.4 has also opined that injury which was found on the scalp on the dead body could be caused with Dandas. Injuries in the internal organs (Abdomen) as found on the dead body could be caused due to kick blows. This internal injury was sufficient to cause death in ordinary course of nature as the usual blood loss by such injury was two liters which as such was sufficient enough to cause death. PW.4 had completely ruled out that the possibility of hanging by examining the ligature mark because it was dry and parchment like with ecchymosed area and arborization above it which is not in case of hanging. Further in case of hanging the area below the knot is usually spared of all injuries which was not in the present case. Taken into consideration the FSL report (Ex.PH) and after having considered the same, PW.4 has given his opinion/(Ex.PJ) as per his opinion sexual act (coitus) was performed upon the person of Reeta Devi/(deceased) before subjecting her to beating and violence. The semen stains as well as blood stains upon the clothes of the deceased and the postmortem findings noted on page 3 of the postmortem report (Ex.PF) are sufficient to prove that sexual act / coitus had been performed upon her. PW.4 has further opined that injuries No.2, 6 and 8 could have been caused with danda. PW.4 has also seen Jacket (Ex.P4), Dupatta (Ex.P5), Kameez (Ex.P6, Salwar (Ex.P7) and pair of shoe (Ex.P8), which were the same as he has taken into possession at the time of autopsy. PW.4 has also medically examined accused Ram Lal on 29.7.2003 at about 11.00 AM and issued MLC (Ex.PK) and found him capable of performing sexual intercourse. In cross-examination, PW.4 has also reiterated his opinion as indicated in his examination-in-chief and there is no apparent deviation or any contradiction noticed from cross-examination. 8. Sh.Ravinder Singh/(PW.5) prepared the scaled site plan (Ex.PM). Sh.Om Prakash (PW.6)prepared the Aks Tatima (Ex.PO) as well as Aks Tatima (Ex.PP) and also issued Jamabandi (Ex.PQ & Ex.PR). PW.6 has also visited the spot of occurrence, where body of deceased was lying. Head Constable Virender Kumar (PW.7) took the photographs on 25.07.2003 of deceased Reeta. PW.7 has also got postmortem conducted of the person of deceased Reeta on 26.07.2003. As stated by PW.7, he reached the spot on 25.07.2003, where Balbir (PW.1) was present. PW.6 has also visited the spot of occurrence, where body of deceased was lying. Head Constable Virender Kumar (PW.7) took the photographs on 25.07.2003 of deceased Reeta. PW.7 has also got postmortem conducted of the person of deceased Reeta on 26.07.2003. As stated by PW.7, he reached the spot on 25.07.2003, where Balbir (PW.1) was present. On the same day, dead body of Reeta was taken for postmortem examination. 9. Sh.Sohan Lal (PW.8) stated that accused Ram Lal was summoned by at Police Station, where he told that if he was taken to the spot, he could tell the place where he raped Reeta/(deceased). His statement (Ex.PS) was recorded which was signed by PW.8 and also by PW.7 as well as by accused Ram Lal. As per version of PW.8, accused Ram Lal also told that he could take the police to the place where he had kept the clothes of Reeta/(deceased) and his own clothes and he could also get the same recovered. He had also told about the place where he had kept the danda, i.e., in the bathroom of his house. The same was reduced into writing as Ex.PT, which was signed by PW.7, PW.8 as well as the accused. In reference to disclosure statement of Ram Lal, he was taken by the police to village Dhyandli and the place where he had raped the deceased. Clothes of deceased viz. shirt, salwar and danda were also recovered vide memo Ex.PV. The accused has also taken out his underwear and T-shirt, which were separately sealed and taken into possession vide Fards (Ex.PW and Ex.PX). PW.8 has also supported the prosecution case by saying that all recovered articles were sealed with different seals. PW.8 has however denied in cross-examination that danda was already brought on the spot by the police. We also notice Ex.PH i.e. Chemical report indicates that human blood and semen were found on dupatta of deceased. Blood spot was also found on salwar and semen was also found on the spot. 10. Narnider Singh/(PW.9) has recorded Rapat No.9 dated 27.07.2003, which was received at Police Station, Chopal, through HHC Bir Singh. In that respect FIR (Ex.PAA) was registered. Head Constable Narvir Singh (PW.10) received the different parcels through different police personnel. Constable Inder Singh (PW.11) took the sealed parcel to FSL, Bharari vide R.C. No.87/03 without any tampering. 10. Narnider Singh/(PW.9) has recorded Rapat No.9 dated 27.07.2003, which was received at Police Station, Chopal, through HHC Bir Singh. In that respect FIR (Ex.PAA) was registered. Head Constable Narvir Singh (PW.10) received the different parcels through different police personnel. Constable Inder Singh (PW.11) took the sealed parcel to FSL, Bharari vide R.C. No.87/03 without any tampering. HHC Bir Singh (PW.12), who took the viscera sealed with seal ‘T’ for examination. Constable Shishu Pal (PW.13) brought the original Rojnamcha (Ex.PA). Constable Shyam Lal (PW.14) has stated that on 4.8.2003 M.C.Shishu Pal handed over to him one sealed parcel with seal ‘T’, which he took to Police Station, Chopal and handed over the same to MHC Narbir Singh. Lady Constable Balmu (PW.15) helped in postmortem examination of the dead body. ASI Ramesh Thakur (PW.16) has stated that on 25.7.2003 at about 6.05 PM, Balbir Singh (PW.1) along with Mohan Lal came to the Police Station and lodged a report that Ram Lal had murdered Reeta, sister of Balbir. That report was entered in Rapat Rojnamcha at Sr.No.9 dated 25.7.2003 and the same was sent to Police Station, Chopal through HHC Bir Singh for registration of the case. Thereafter, PW.16 left for the spot along with H.C. Virender, Constables Shyam Lal and Balbir Singh as well as Mohan Lal. PW.16 interrogated accused Ram Lal and Mohan Lal on 26.7.2003 and handed over the case file to SHO Asha Ram. PW.16, however, on reaching the spot after observing the dead body of the deceased noticed injuries on her neck. PW.16 further reiterated the proceedings initiated during the investigation. 11. S.I.Asha Ram (PW.17) stated that on 25.7.2003, telephonic information was received at Police Station from Police Post, Nerwa that dead body of Reeta had been found at Dhyandli. PW.17 has stated that he took the file from ASI Ramesh and went to the spot for further investigation. Keeping in view the statements of witnesses and after visiting the spot as well as collecting sufficient evidences, accused Ram Lal was arrested at 8.30 PM on 26.07.2003. On 27.07.2003, accused Ram Lal was produced before learned Judicial Magistrate, 1st Class, Chopal and his police remand was obtained. On 28.7.2003, at Police Post, Nerwa, PW.17 recorded the disclosure statement made by the accused. As per first statement of accused, he indicated to give Nishandehi of the place, where he sexually assaulted the deceased and gave her beatings. On 27.07.2003, accused Ram Lal was produced before learned Judicial Magistrate, 1st Class, Chopal and his police remand was obtained. On 28.7.2003, at Police Post, Nerwa, PW.17 recorded the disclosure statement made by the accused. As per first statement of accused, he indicated to give Nishandehi of the place, where he sexually assaulted the deceased and gave her beatings. As per second disclosure statement of the accused, PW.17 recovered the apparels of the deceased and also the danda by which beatings were given to the deceased. Accused guided the police and took the police officials to the spot, where he had raped the deceased and had given her beatings, in the presence of witnesses. Accordingly, PW.17 prepared Fard Nishandehi (Ex.PU), which was signed by witnesses Sohan Singh and Virender. Site Plan Nishandehi (Ex.PJJ) was also prepared by PW.17. Salwar (Ex.P40), Shirt (Ex.P41) and danda (Ex.P2) were also recovered in presence of witnesses Sohan Singh and Virender. The investigation of the case was made by PW.17. PW.17, in cross-examination, has stated that when he visited the spot on 28.7.2003, he noticed that the children and mother-in-law of Reeta were also present in the house of accused Ram Lal. PW.17 has denied that the police officials gave severe beatings to Geeta, Joginder and thereafter got their statements under Section 161 Cr.P.C. recorded as desired by police. PW.17 has also denied that he had recorded the statement (Ex.DB) of Smt.Geeta, portion A to A of his own and that the same was not given by Geeta. Similarly, PW.17 recorded portion A to A of the statement (Ex.DA) of Joginder. PW.17 has denied the suggestion that he had ever told them, that if they will not make statement in such a manner before the Magistrate, in tune with the version allegedly made by them under Section 161 Cr.P.C., they will be beaten. PW.17 has also denied the suggestion that both PW.2 and PW.3 were given severe beatings outside the Court. However, PW.17 had very categorically stated that on 4.8.2003 the above said witnesses had gone to the Court themselves and they made their statements before learned JMIC, without any pressure. PW.17 has also stated that statements of other small children were not recorded as they were minor. PW.17 again reiterated that on 26.7.2003, at about 8.30 PM, he arrested accused Ram Lal in village Dhyandli. PW.17 has also stated that statements of other small children were not recorded as they were minor. PW.17 again reiterated that on 26.7.2003, at about 8.30 PM, he arrested accused Ram Lal in village Dhyandli. PW.17 also stated in cross-examination that it is correct that when rape is committed on a woman, injuries are likely to be suffered by that person during the course of struggle. Self stated that sometimes the injuries may not come. 12. Dr.Rajesh Kumar (PW.18) opened the parcel, out of which salwar and kameez (Ex.PA/1) of a lady were found and on examination PW.18 noticed that shirt was torn on the right arm pit. In opinion of PW.18, such tearing could have been occurred if the shirt had been subjected to certain force. In that respect a detailed report (Ex.POO) was issued by him. 13. Sh.Hans Raj (PW.19), Judicial Magistrate, in support of the prosecution case, has stated that he remained posted as JMIC, Chopal from the year 2001 till 5.8.2003. On 4.8.2003, at about 12 noon, Smt.Geeta (PW.3) and Sh.Joginder Singh (PW.2) were produced in the Court for recording their statements under Section 164 of Cr.P.C. The police officials accompanying them were asked to go outside the Court. PW.19 has also stated that on making enquiry after apprising both PW.2 and PW.3 about the requirement of Sections 164 Cr.P.C. and before recording their statement PW.19 had also completed the formalities as required under Section 164 Cr.P.C. in following format:- “I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. (Signed) A.B. Magistrate.” After recording such statement in the light of requirement of Section 164 of Cr.P.C., Sh.Hans Raj (PW.19) recorded the statement (Ex.PSS) marked as ‘X’ of Sh.Joginder Singh (PW.2) as below:- “ As per statement of Sh.Joginder Singh (PW.2), he has been studying in 10+1 and Roopi Devi is his maternal grandmother. For the last 1 ½ month, he had been residing in Dhyandli village. Ram Lal (accused) and Mohan Lal were his uncle and Geeta and Reeta are his Aunts. For the last 1 ½ month, he had been residing in Dhyandli village. Ram Lal (accused) and Mohan Lal were his uncle and Geeta and Reeta are his Aunts. On 24.7.2003, when he came from school, Reeta, Geeta aunts and Ram Lal uncle were in the house. Geeta aunty prepared food the same was taken by them. PW.2 has further stated that his uncle Mohan Lal was away from the house for the last 3-4 days. At about 10.00 AM, PW.2, Reeta aunt and her children, namely, Punam and Kaku, slept in the room of Reeta aunty and Geeta aunty and Ram Lal uncle slept in another room along with their children. PW.2 has further stated that door had not been bolted from inside. At about 11/12.00 PM (mid night), his uncle Ram Lal opened the door of their room and entered in the room and spontaneously caught hold of Reeta aunty from her arm and dragged her outside the room. On this, PW.2 got up, but Ram Lal bolted the door from outside. Reeta aunty was crying for help by saying that “DIDI MUJHE BACHAO”. PW.2 tried to open the door, but he could not open the same despite efforts having been made by him. After sometime, PW.2 stopped hearing such cries. Thereafter, PW.2 remained on the cot and slept after words. At about 7.00, when PW.2 woke up, he did not find his aunt Reeta on her bed. Thereafter, PW.2 washed his face and started doing the home work. By the time, Mohan Lal, uncle of PW.2 came to the home. After taking bath and food, while PW.2 dressing himself to go to school, at the same time his aunt Geeta went to nullah in order to fetch the water. When PW.2 was going to school, his aunt Geeta called him to come quickly. On this, PW.2 went towards the field and saw his aunt Reeta hanging. PW.2 has further stated that they thought that she might have alive and immediately got her down but she was dead. Thereafter, they called the villagers, who came on the spot followed by Mohan Lal. PW.2 has further stated that during night hours his uncle had beaten to Reeta aunt and such statement was recorded by PW.2 without any pressure and such statement was given voluntarily”. Thereafter, they called the villagers, who came on the spot followed by Mohan Lal. PW.2 has further stated that during night hours his uncle had beaten to Reeta aunt and such statement was recorded by PW.2 without any pressure and such statement was given voluntarily”. Similarly, PW.19 had also recorded the statement of Smt.Geeta Devi (PW.3), who has given her statement to the following effect:- “PW.3 Stated that she belonged to Dhyandli village and she was married to Ram Lal about 6 years back and two children were born out of such wedlock and the age of her younger child was two months. Reeta Devi was her Devrani, who was married about 12 years back to her Devar Mohan Lal. Reeta has also two daughters and her husband as well as husband of Reeta was also Mason. On 24.7.2003 PW.3 and her Devrani had been hoeing the maize in the fields throughout the day. At about 5.00 PM they came back home and prepared food etc. on that day husband of PW.3 was present at the house. Smt. Geeta Devi further deposed that husband of Reeta was in Baghana village, who came at about 8.00 PM. They had their dinner at about 8.00 PM and thereafter, Reeta, her two daughters and Joginder slept in the room of Reeta and PW.3, her husband as well as her children slept in her own room. At about 11.00 PM, her husband Ram Lal got up and after opening the door went outside. PW.3 also got up and wanted to go outside, but the door was closed from outside. After sometime, PW.3 heard the cries of Reeta from outside, she was saying that “DIDI MUJHE CHHURAO” Reeta was also saying that her husband (Ram Lal) had caught hold of her. PW.3 asked Reeta to unbolt the door on that she replied that she could not open the same because Ram Lal had caught hold of her. After sometime, PW.3 stopped hearing the cries of Reeta and she out of fear had been staying in the room. Thereafter, about 3.00 AM, Ram Lal came and opened the door from outside and after coming inside the room had slept. PW.3 asked her husband (Ram Lal) as to why Reeta was crying he replied her to keep quiet otherwise she will be beaten. Thereafter, about 3.00 AM, Ram Lal came and opened the door from outside and after coming inside the room had slept. PW.3 asked her husband (Ram Lal) as to why Reeta was crying he replied her to keep quiet otherwise she will be beaten. PW.3 out of fear kept quiet because since past also he had been beating her and made her lie on the bed with him. At about 6.00 AM, PW.3 woke up and prepared tea and at that time her Devar Mohan Lal also came. Thereafter, PW.3 offered tea to Mohan Lal and Ram lal and after that Mohan Lal slept and Ram Lal left for his work. PW.3 has further deposed that while her husband was going she again asked him about Reeta and he after being perplexed replied Geeta to keep quiet, otherwise she will be beaten. Accused Ram Lal told her not to talk about Reeta to anybody otherwise she will be beaten. Thereafter, PW.3 went to fetch the water in Koti nullah and when she was returning back after taking water, she observed that dead body of Reeta was hanging with rope on the tree in the field of Jeet Singh. Out of fear, PW.3 called Joginder (PW.2), who came running and thereafter probably the dead body was taken on the ground with an expectation that she might be alive. PW.3 took the body of Reeta on her laps and gave calls to the villagers and after hearing her calls, Jeet Singh, Ramesh, Sohan Lal and Mohan Lal (husband of deceased) came to the spot. The villagers have also given call to her husband to come back. Thereafter, PW.3 left for her house to see her children. PW.3 has further deposed that Reeta was killed by her husband. Subsequently, accused Ram Lal was saying that he had seen Reeta with someone. PW.3 has further deposed that such statement was voluntary given before PW.19. 14. The statement of PW-2 (Joginder Singh) and PW-3 (Gita Devi) was recorded under Section 164 Cr.P.C. on 4.8.2003 by PW-19 / Shri Hans Raj (Judicial Magistrate) where true story was revealed indicating that accused / respondent was the real culprit who has sexually assaulted the victim, brutally assaulted her and had hanged her. However, while deposing on 29.7.2004 before the Court, both have resiled from their statements made on 4.8.2003 before PW-19 / Shri Hans Raj (Judicial Magistrate). However, while deposing on 29.7.2004 before the Court, both have resiled from their statements made on 4.8.2003 before PW-19 / Shri Hans Raj (Judicial Magistrate). The Judicial Magistrate (Shri Hans Raj) / PW-19, through his statement, has very categorically stated that the statements of PW-2 and PW-3 were recorded without any pressure and not in the presence of Police and after recording their statements, the contents thereof were read over to them and before recording their statements, formalities, as required under Section 164 Cr.P.C., were completed and PW-2 and PW-3 were made aware of the affect of such statement recorded, whereas, PW-2 (Joginder Singh) through his statement dated 29.7.2004 has simply denied the contents and manner of recording the statement, thereof by stating that the statement dated 4.8.2003 was recorded under pressure and the contents thereof were not read over to him and only he has put his signature and subsequently has stated that his signatures were obtained on blank paper. In the facts and circumstances, it cannot be believed that PW-19 Hans Raj, being a Judicial Magistrate, will record statement of PW-2 incorrectly. PW-2 (Joginder Singh) was related and was residing in the house of accused / respondent Ram Lal, as such, there was every possibility that he could have resiled under pressure subsequently while making his statement on 29.7.2004 before the Court. PW-3 / Geeta Devi, wife of accused Ram Lal, though had resiled from her statement dated 4.8.2003 recorded by PW-19 but through her statement she has stated that she had put signature and PW-19 has asked her on 4.8.203 as to whether there was any pressure on her to make statement and PW-3 told PW-19 that police had pressurized her to give statement. Tt was also stated by PW-3 that PW-19 has apprised her that whatever she would state that would be without fear or pressure and after having told so, PW-19 proceeded to record the statement and after the statement was recorded she had put her signature. Tt was also stated by PW-3 that PW-19 has apprised her that whatever she would state that would be without fear or pressure and after having told so, PW-19 proceeded to record the statement and after the statement was recorded she had put her signature. PW-3, is the wife of accused / respondent, therefore, there was every possibility that she could have resiled from her statement dated 4.8.2003 given before PW-19 to protect her husband and there is no occasion to disbelieve the testimony of PW-19, as nothing is on the record to reveal that PW19, being a Judicial Magistrate, could have recorded the statement of PW-2 and PW-3 with ill motive, as such, it could safely be inferred that PW-2 and PW-3, being interested and related witnesses, could have resiled from the statements dated 4.8.2003 to protect the accused. Therefore, in the facts and circumstances, the statements of PW-2 and PW-3, recorded under Section 164 Cr.P.C. before PW19, be treated as the true disclosure of incident and their testimony dated 29.7.2004 before the Court, could not be treated as trustworthy. 15. We also take note of the fact that in view of testimony of PW.3, her husband Ram Lal had been torturing her / beating her and on relevant day he was in the house. In view of testimony of PW.2 and PW.3, on the fateful day, accused was sleeping along with his children and wife Smt.Geeta Devi (PW.3) in the room. PW.3 has consistently and coherently narrated that at about 11.00 PM, he came out of the room and locked the room from outside and entered in the room of Reeta Devi. PW.3 has further stated that her husband spontaneously caught hold of Reeta Devi from her arm and dragged her outside the room. The cries of Reeta were also heard by PW.2 and PW.3. In view of testimony of PW.3, when accused Ram Lal returned back in night at about 3.00 AM, PW.3 asked her husband about the cries of Reeta, she was told by the accused to keep quiet, otherwise she will be beaten, therefore, out of fear she kept silent. PW.3 has further stated that while her husband was going to his work, she asked him about Reeta, but again her husband told her to keep quiet and threatened her with dire consequences. Accused Ram Lal was also habitual of torturing the family members. PW.3 has further stated that while her husband was going to his work, she asked him about Reeta, but again her husband told her to keep quiet and threatened her with dire consequences. Accused Ram Lal was also habitual of torturing the family members. Joginder Singh (PW.2) has also admitted this fact that accused was in habit of beating. We further note, if accused Ram Lal was innocent, unaware of the incident, then on asking by PW.3 i.e. his wife, in a natural course the accused could have been perturbed and could have helped in searching Reeta and could have rendered all possible help in rescuing Reeta or in natural course he could have co-operated with others to take Reeta for medical treatment in absence of Mohan Lal i.e. husband of Reeta/(deceased). But unusual or peculiar behaviour of accused also indicate that he was culprit, who had not only sexually assaulted but mercilessly beaten Reeta/(deceased) and thereafter hanged her from the tree. Ex.PJ reveals that Reeta/(deceased) was sexually assaulted and recovery of danda at the instance of accused Ram Lal as well as the opinion of Dr.J.S.Chalal, regarding injuries on the person of Reeta is also corroborative of the fact that the deceased might have been attacked from all sides and inflicting injuries were inflicted on all the parts / organ system of the body by hard blunt substance like danda, fist and kick blows. PW.4 has further opined that sexual act was performed upon the person of Smt.Reeta Devi before subjecting her to beating and violence. The recovery of undergarments of Reeta/(deceased) was also indicating semen and blood stains. In our considered view, though initially Sh.Joginder Singh (PW.2) and Smt.Geeta Devi (PW.3) out of fear not might have disclosed the true facts, however, in consonance to their conscience they have voluntarily went to get their statements recorded before Judicial Magistrate and had got their statements recorded revealing true facts of the incident. PW.19 after taking all necessary precautions required under the law more specifically as required under Section 164 Cr.P.C. recorded the statements of PW.2 and PW.3. In our considered view, there is no occasion that statements of PW.2 and PW.3 recorded by Judicial Magistrate by observing all necessary precautions would not be reliable, rather the same could be acted upon keeping in view the facts and circumstances of the present case. 16. In our considered view, there is no occasion that statements of PW.2 and PW.3 recorded by Judicial Magistrate by observing all necessary precautions would not be reliable, rather the same could be acted upon keeping in view the facts and circumstances of the present case. 16. In the aforesaid facts and circumstances, the learned Additional Sessions Judge has not made proper and correct appraisal of the prosecution witnesses, medical evidence as well as material on record, as such, the finding arrived by learned Additional Sessions Judge is not legally correct, therefore, the judgment dated 24.3.2005 passed by the learned Additional Sessions Judge, Fast Track Court, Shimla, in Sessions Trial No.34-S/7 of 2004/03, is set aside. We hold the accused-respondent guilty of offence punishable under Sections 376 and 302 of IPC and accordingly, accused being convicted and sentenced for the aforesaid offences. Criminal Appeal of the State Government, is accordingly allowed. However, after convicting the accused / respondent for the aforesaid offences, he has to be heard on quantum of sentence. As such, non-bailable warrants be issued against accused / respondent to procure his presence. List on 30th October, 2012.