JUDGMENT 1. - The subject matter of challenge is the judgment and order dated 23.10.1989 passed in Sessions Case No. 20/1987 by the learned Additional Sessions Judge No. 2, Alwar convicting the appellants under Sections 366 & 376 of the Indian Penal Code (hereafter referred to as 'IPC') and sentencing them to undergo rigorous imprisonment for five years and a fine of Rs. 100/- each for the first offence and to suffer seven years' rigorous imprisonment and pay a fine of Rs. 100/- each for the second offence. In default in payment of fine, the appellants were directed to undergo rigorous imprisonment for further six months on both counts. 2. I have heard Mr. Amit Soni, learned counsel for the appellants and Mr. N.R. Saran, Public Prosecutor, Rajasthan. 3. The prosecution case traces back to 22.4.1987 when, at about 10:40 p.m. one Hussaina (PW-3) lodged a verbal report with the Alwar Police Station alleging that while he was taking the victim on his rickshaw from SMD junction towards the railway station, they were intercepted by a car which came from behind, for which he had to stop his rickshaw. It was alleged further that thereafter, four persons came out from the car, and by force, dragged the victim into it and sped away therefrom. It was stated further that at that time, some home-guards were on duty nearby, to whom he first reported about the incident, on which they though tried to stop the car, they failed. 4. On the basis of this verbal report, the Alwar Police Station recorded the same and acted on it as a first information report (Ex.P-2) and lodged a case under Section 365 and 366 IPC. On the completion of the investigation, a charge-sheet was laid against the accused-appellants and one Harpal Singh under Sections 365, 366 & 376 IPC and a report was also submitted against another co-accused, named Rudrabhan, under Section 169 of the Cr.P.C. He was later on discharged and the accused- appellants along with Harpal Singh were made to stand trial under Sections 365, 366 & 376 IPC who, on being confronted with the charge to that effect, claimed to be innocent and denied the same. 5. In the trial, the prosecution examined 18 witnesses, including the prosecutrix Vijay Laxmi, PW-1; Dr.Prahlad Swaroop Agarwal, PW-16; Dr. 5. In the trial, the prosecution examined 18 witnesses, including the prosecutrix Vijay Laxmi, PW-1; Dr.Prahlad Swaroop Agarwal, PW-16; Dr. Deshbandhu Gupta PW-15; Shri Brij Mohan Gupta, PW-17, the learned judicial magistrate, who conducted the Test Identification Parade (hereafter referred to as 'the TIP'); the investigating officer, Shri Giriraj Prasad Sharma, PW-18. A host of documents including the TIP report Ex.P-1, the FIR (Ex.P-16), the medical examination report of the prosecutrix Ex.P-15, the seizure list Ex.P-7 and Ex.P-8 of the Ambassador car bearing registration No. DLK 7868 and its front seat cover respectively and the Forensic Science Laboratory Report Ex.P-20 was proved. After recording of the evidence of the prosecution witnesses, statement of the accused persons were recorded under Section 313 Cr.P.C. and they, when confronted with the charge and materials against them, denied the correctness thereof. They however, declined to adduce any evidence. The learned trial court, as referred to here in above, on a consideration of the evidence on record, oral and documentary, convicted the appellants under Sections 366 & 376 IPC and sentenced them as above. It however, acquitted co-accused Harpal Singh for want of proper identification. 6. Before adverting to the rival arguments, it would be appropriate to refer to the brief summary of the relevant evidence as adduced by the prosecution in support of the charge. 7. The victim Vijay Laxmi, PW-1 stated that she had come to Alwar at about 6:00 p.m. in the evening of the occurrence and thereafter she had been searching the house of her brother-in-law in a rickshaw, when goons dragged her out of the rickshaw and took her in a car in which they were travelling and tied up her hands and feet. The witness stated that she raised alarm, but to no avail. She alleged that thereafter inside the car, successively, three persons committed forcible sexual intercourse with her. In the court, she identified the appellants to be two of such miscreants. According to her, her violators detained her till the next day and during that period she was kept inside the car, for which she eventually lost her consciousness. She deposed that after she regained her senses, her abductors left her near an ice factory. She claimed that her rickshaw-wala tried to save her, and in the process, was assaulted by the miscreants. She deposed that after she regained her senses, her abductors left her near an ice factory. She claimed that her rickshaw-wala tried to save her, and in the process, was assaulted by the miscreants. She claimed to have identified the appellants during the TIP and also put her signature on the TIP report (Ex.P-1). In cross-examination, this witness failed to recollect as to whether she had stated before the police that due to lack of sufficient light, she could not identify the offenders. She stated that on the next day in the evening, she was recovered by the police from the hospital. However, she denied to have been proceeding towards railway station at the time of the incident, but asserted that she had asked the rickshaw-wala to take her thereto. She admitted to have been subjected to medical examination. She also admitted to have seen the accused persons on the dock for the first time in jail after the incident. According to her, she was taken on the front seat of the car along with the driver, and that, there were three persons on the rear seat. She stated that at the time of the TIP, there were 60-70 persons, amongst whom, the accused persons had been made to stand. According to her, the police did not show to her the photographs of the accused persons before the TIP. In course of the cross-examination, this witness stated that she was married, but had been divorced by her husband and she was thus, leaving separately. She disclosed further that she had come to Alwar along with her sister, brother-in-law, and her nephew. She admitted that at the time of the incident, there was no street light and the place was dark. She stated that after having been released by her abductors, she went straight to the hospital from where the police recovered her. 8. The statement of PW-2 Jagdish Prasad, PW-4 Nandkishore, PW-5 Lichhu Singh, PW-6 Kailash Chandra and PW-7 Ghanshyam is the same. They had stated that at the relevant point of time, they were on duty and about 12:30 a.m. that night, the girl was taken by the occupants of a car DLK 7868, and that, then she was screaming. They stated that they unsuccessfully tried to intercept the car, where after one rickshaw-wala stated that the girl had been dragged away from his rickshaw. They stated that they unsuccessfully tried to intercept the car, where after one rickshaw-wala stated that the girl had been dragged away from his rickshaw. PW-3 Hussaina on whose verbal report, the FIR was lodged however, turned hostile, and not only he denied to have lodged the FIR, but also asserted that he had not taken out his rickshaw that night. He expressed total ignorance about the incident. PW-7 Ghanshyam and PW-8 Suresh are the seizure witnesses of the ambassador car and front seat cover thereof. The evidence of PW-9 Surendra Kumar, PW-10 Tara Chand, PW-11 Laxminarayan, PW-12 Gordhan and PW-13 Ashok Kumar is not of much significance. PW-14 Ishwar Singh, who is security officer of M/s.Rathi Allied stated that the car DLK 7868 of which the accused Harpal Singh was the driver, returned to the premises at 1:10 a.m. Dr. Prahlad Swaroop Agarwal PW-16, who had examined the victim, deposed about presence of some abrasions on her body. He stated that her hymen was torn and was tender as well. He stated that the clothes of the victim did not show any stain of blood or semen, and that, the radiological test disclosed that she was about 19 years of age. This witness however, deposed that the medical examination, as a whole, suggested that the victim had been raped. That her vaginal swab had been sent for FSL, was also mentioned by him. This witness further deposed that at the relevant time, the victim was found to be "agitated, irritable and anxious". 9. PW-17 Brij Mohan Gupta stated that he, at the relevant time, was the Judicial Magistrate, Alwar, and that, he was present during the TIP of the accused persons. He stated that they were placed along with 28 other under trial prisoners, and that, PW-3 Hussaina could identify accused Harpal Singh. He stated further that the victim identified the accused appellants Ram Sewak and Gopal Singh. In cross-examination, this witness admitted that in his order dated 28.4.1987 directing holding of TIP on 19.9.1987. However, he had not directed that the accused persons be kept isolated from public view. According to this witness, the victim took some time to identify accused appellant Ramsewak. In cross-examination, this witness admitted that in his order dated 28.4.1987 directing holding of TIP on 19.9.1987. However, he had not directed that the accused persons be kept isolated from public view. According to this witness, the victim took some time to identify accused appellant Ramsewak. He further admitted that at the time of the TIP, accused-appellant Ramsewak had told him that prior thereto, he had been shown to the witness on two or three occasions, and that he (witness) had also recorded a note on the TIP report Ex.P-1 to that effect. The witness stated that after the recovery of the victim, she was put up in mahila sadan. He deposed that the accused persons, after their arrest on 24.4.1987, were in custody where after on 29.4.1987 they ,along with others, were lined up for the TIP. 10. PW-18 Shri Giriraj Prasad Sharma, the investigating officer while narrating the steps taken by him in course of the investigation, stated that he found the victim to be coherent, and though he had felt that she ought to be examined by a psychiatrist, he eventually did not take step in that regard. He admitted further that the ambassador car had been seized on 23.4.1987 and the front seat cover thereof was retrieved on 27.4.1987. That during this period, the car had remained parked in the premises of the police station, was also admitted by him. He stated that the victim was recovered from a tea stall. The investigating officer also conceded of not having investigated as to how may times the seized car had been used after the commission of the offence, till its seizure on 23.4.1987. 11. Learned counsel for the appellants has argued that as the purported identification of the accused-appellants is doubtful, both in terms of the procedure provided therefor and lack of consistency between the prosecutrix and PW-3 Hussaina, the learned trial court had grossly erred in law and on facts in holding them guilty of the offence, with which they had been charged. As it is apparent, amongst others, from the evidence of PW-15 Dr. Deshbandhu Gupta and PW-16 Dr. As it is apparent, amongst others, from the evidence of PW-15 Dr. Deshbandhu Gupta and PW-16 Dr. Prahlad Swaroop Agarwal, that necessary precautions had not been taken by the authorities concerned to withhold the identity of the accused-appellants before being presented for the TIP, the process is rendered suspect thereby and cannot be acted upon as a piece of evidence in support of the charge, he urged. The learned counsel argued that not only the presence of the prosecutrix in a public place at such an unearthly hour in the night, casts a reflection, amongst others, on her mental state, the fact that during the period of investigation, none of her relatives had even visited her or enquired about her, renders the prosecution case highly doubtful. He argued further that as PW-3 Hussaina, according to the prosecutrix, was an eye witness to the incident of abduction of the victim and thus, his failure to identify the accused appellants, is destructive of the substratum of the prosecution case. According to the learned counsel, the wearing apparel of the prosecutrix was neither seized nor did those disclose any stain of blood or semen, and that, the FSL report vis-a-vis the front seat cover of the car to the effect that it contained human semen, is of no significance. Learned counsel referred to the observation of the medical witness PW-16 Dr.Prahlad Swaroop Agarwal about the demeanor in endorsement of this plea. Apart from the fact that the version of the victim, as a whole, is inconsistent on material particulars with that of the investigating officer, the acquittal of co-accused Harpal Singh is a clear pointer of the innocence of the accused-appellants, he argued. 12. The learned Public Prosecutor, on the other hand, pleaded that as the accused-appellants had been duly identified by the victim and the offending car had been seized, the detection of human semen on the front seat thereof, was enough to establish the culpability of the accused-appellants and thus, no interference with the impugned judgment and order is called for. 13. I have, in details, examined the materials on record. 14. To start with, PW-3 Hussaina, who in terms of the FIR, was an eye witness to the incident of abduction of the victim, did turn hostile at the trial. He denied his presence at the place of occurrence with his rickshaw and even disowned the FIR. 13. I have, in details, examined the materials on record. 14. To start with, PW-3 Hussaina, who in terms of the FIR, was an eye witness to the incident of abduction of the victim, did turn hostile at the trial. He denied his presence at the place of occurrence with his rickshaw and even disowned the FIR. Though he admitted in cross-examination that he had visited the jail, his testimony demonstrates that he could identify only Harpal Singh. His evidence at the trial therefore, to a great extent, makes the identification of this co-accused doubtful. 15. Though the prosecutrix in her evidence stated that she had reached Alwar at 6:00 p.m. in the evening on the same day, and that she had been searching her brother-in-law's house since then, her presence late in the evening till about 10:30 p.m. is construed to be little unusual, more particularly, when she was all alone. Apart from the inconsistencies in her version at the trial with regard to the identification of the miscreants for want of sufficient light, her statement with regard to her detention by the accused persons and the place of her recovery, in the face of the evidence of the investigating officer, has to be taken with a grain of salt. If her version that she had been forcibly raped inside the car is to be believed, it has to be essentially linked with the detection of semen on the front seat cover thereof. This, in view of her statement, that while she was being carried in the car, she was placed on the front seat with the driver by her side and three persons on the rear seat, is unacceptable. The investigating officer has admitted that the front seat cover of the car had not been seized on the date of seizure of the car i.e.23.4.1987, but on the later date i.e.27.4.1987 during which the vehicle was parked in the premises of the police station. He admitted as well of not having enquired as to how many times the car had been used since the time of the commission of the alleged offence, till its seizure. The presence of semen on the front seat cover of the car, as disclosed by the FSL report and therefore, per se does not establish any unimpeachable nexus between the accused-appellants and the offence. The presence of semen on the front seat cover of the car, as disclosed by the FSL report and therefore, per se does not establish any unimpeachable nexus between the accused-appellants and the offence. The acquittal of Harpal Singh for want of identification, in this perspective, is of clinching impact adversely affecting the trustworthiness of the prosecution case. The opinion of the medical witness that the victim had been raped ipso facto does not prove the charge against the accused-appellants beyond all reasonable doubt. On a totality of the facts and circumstances emerging from the evidence of the prosecution witnesses, the conclusion that the accused-appellants may not be involved in the offence alleged cannot be ruled out totally. They are thus, entitled to benefit of doubt. 16. In the above view of the matter, the appeal succeeds. The impugned judgment and order is set aside. The accused-appellants are set at liberty. Their bail bonds stand discharged.Appeal allowed. *******