JUDGMENT 1. - These appeals have been preferred on behalf of the appellants-Jagdish and Babu Lal challenging the judgment dated 29.6.2009 passed by the learned Addl. Sessions Judge, Fast Track No. 2, Jodhpur in Sessions Case No. 6/2008, whereby, the appellants were convicted and sentenced as under: Appellant-Jagdish Offence Sentence Under Section 376 I.P.C. Ten years' R.I. and to pay a fine of Rs. 5,000/- and in default of payment of fine to further undergo three months' S.I. Under Section 457 I.P.C. Three years' R.I. and to pay a fine of Rs. 1,000/- and in default of payment of fine to further undergo one month's S.I. Appellant-Babu Lal Offence Sentence Under Section 376 read with Section 120-B I.P.C. Ten years' R.I. and to pay a fine of Rs. 5,000/- and in default of payment of fine to further undergo three months' S.I. Under Section 447 I.P.C. Three months' R.I. and to pay a fine of Rs. 500/- and in default of payment of fine to further undergo fifteen days' S.I. 2. Briefly stated the facts necessary for the disposal of these appeals are that the first informant Bhaga Ram accompanied with his wife (the prosecutrix) submitted a written report (Ex.P-6) on 26.5.2008 at the Police Station Lohawat, Distt. Jodhpur. It was alleged in the report that the first informant was a labourer working at Jodhpur. His wife and children lived at village Bhed. He allegedly received an information on 24.5.2008 that during the night of 23.5.2008, Jagdish Harijan had done something wrong with his wife. Upon this information, the complainant collected his wages from the Contractor and came back to the village on 25.5.2008. His wife told him about mishap which befell her. She told that on 23.5.2008 she was sleeping with the children inside the hut. At about 9 P.M., sand storm blew up and then it started raining. At that time, Jagdish Harijan came there and entered into the hut by kicking the door open. The prosecutrix tried to come out from the hut, on which, Jagdish Harijan forcibly threw her down on the cot, gagged her mouth lifted her clothes and forcibly raped her. The victim tried to save herself to the best of her ability but Jagdish over powered and raped her by choking her mouth and throat. On hearing her cries, Sona Ram and Koja Ram came there. The victim tried to save herself to the best of her ability but Jagdish over powered and raped her by choking her mouth and throat. On hearing her cries, Sona Ram and Koja Ram came there. On seeing them, Jagdish and Babu Lal Bheel who was sitting outside the hut ran away. 3. On the basis of this report, an F.I.R. No. 59/2008 was registered at the Police Station Lohawat, Jodhpur Rural for the offences under Sections 457, 376, 447 and 120-B I.P.C. and investigation commenced. The accused were arrested. The victim was examined under Section 161 Cr.P.C. and her medical examination was conducted. After investigation, the police filed a charge-sheet against the appellants for the offences under Sections 457, 376, 447 and 120-B I.P.C. 4. The case was committed to the Court of Sessions Judge, Jodhpur, from where, the same was transferred for trial to the Court of the learned Addl. Sessions Judge, Fast Track No. 2, Jodhpur. The learned trial Judge framed charges against the appellants for the offences mentioned above. The appellants pleaded not guilty and claimed trial. The prosecution examined 13 witnesses in support of its case. The accused in their statements under Section 313 Cr.P.C. denied the allegations and examined one witness Koja Ram in support of their defence. At conclusion of the trial, the learned trial Judge proceeded to convict and sentence the accused appellants as mentioned above. Hence, these appeals have been preferred on behalf of the appellants challenging their conviction and sentences. 5. The appellant Jagdish was originally represented by learned counsel Shri Farzand Ali, but when the matter was listed for hearing, he pleaded no instructions. On this, the Court appointed learned counsel Shri Abhishek Charan as Amicus Curiae to assist the Court on behalf of the appellant Jagdish. Learned counsel Shri M.L. Bishnoi appeared on behalf of the appellant Babu Lal whilst learned counsel Shri Vikram Choudhary appeared for the complainant and assisted the learned Public Prosecutor. 6. Learned counsel for the appellants submitted that the appellants had been falsely implicated in the case. It was urged that the F.I.R. was highly belated and was filed after three days of the occurrence. It was also submitted that from a bare perusal of the testimony of the prosecutrix, it is apparent that the relations between the prosecutrix and the appellant Jagdish were consensual. It was urged that the F.I.R. was highly belated and was filed after three days of the occurrence. It was also submitted that from a bare perusal of the testimony of the prosecutrix, it is apparent that the relations between the prosecutrix and the appellant Jagdish were consensual. It was also submitted that so far as the appellant Babu Lal is concerned, he was roped into the case without justification. It was further submitted that if the prosecution story is accepted to be true, then too, there is no material available on the record of the case to hold that the appellant Babu Lal conspired with the appellant Jagdish for committing rape with the prosecutrix. Learned counsel also submitted that there are grave discrepancies in the testimony of the prosecution witnesses and as such, the conviction of the appellants is liable to the set aside. 7. Per contra, the learned Public Prosecutor and the learned counsel for the complainant Shri Vikram Choudhary vehemently opposed the submissions advanced by learned counsel for the appellants. It was urged that the victim is a married lady. She was sleeping in her hut along with children. At that time, taking advantage of her husband's absence, the appellant Jagdish forcibly entered into the hut and subjected the victim to rape. At that time, the accused appellant Babu Lal stood watch outside the hut for the purpose of aiding the principal accused Jagdish. Learned counsel urged that there is no material available on the record of the case to hold that the victim or her husband had any cause to falsely implicate the appellants. Learned counsel thus urged that the conviction and sentences awarded to the appellants by the learned trial Court do not warrant any interference by this Court. 8. Heard and considered the arguments advanced by learned counsel for the parties at the bar, perused the judgment impugned as well as the record. 9. A gist of evidence of the principal witnesses whose testimony is relevant for consideration of these appeals is noted hereunder: Sona Ram (PW-2) was the witness who reached the victim's house on hearing her cries. He alleged that he was at his house when the incident took place. Upon hearing shouts coming from Bhaga Ram's house, he along with his neighbour Koja Ram went there. They saw that Babu Lal was standing outside Bhaga Ram's house. He alleged that he was at his house when the incident took place. Upon hearing shouts coming from Bhaga Ram's house, he along with his neighbour Koja Ram went there. They saw that Babu Lal was standing outside Bhaga Ram's house. At that time, Babu Lal shouted that people are coming and on hearing the warning, both the accused ran away. It was further alleged by Sona Ram that he and Koja Ram tried to apprehend the1 accused but they managed to escape. The victim told him that Jagdish came inside her hut and subjected her to rape. In cross-examination, the witness admitted that by the time, he and Koja Ram reached the victim's house, her sister-in-law Smt. Sohni had already reached there. When he reached the place of occurrence, he heard the victim's cries that thieves had struck. She did not name anybody. He further stated that when he saw the victim, she was having number of abrasions on her hands, neck and back etc. Rajendra Singh (PW-5) was posted as S.H.O. Police Station Lohawat at the relevant lime. He partially investigated the matter. In his cross-examination, he admitted that a number of other persons' 'dhanis' were located between the house of the first informant and Smt. Sohni. He also admitted that when the site inspection was conducted, no visible signs of struggle were noted. He further admitted that the incident took place^ outside the hut. It was also admitted by the witness that the eldest daughter of the victim being nine years' old on the date of occurrence was also present at the house at the time of the incident. He also admitted that the wooden door of the victim's hut was found intact. Smt. 'P' (PW-6) is the most material witness being the victim herself. She alleged that her husband used to work as a labourer at Jodhpur. She lived with her children at the village Bhed. On the fateful day, she was sleeping in her hut along with her four children. At about 9 O'Clock in the night, Jagdish opened the door of her hut and came inside. He lifted her in his arms and brought her out. She started shouting. Thereafter, Jagdish laid her down on the floor outside the hut. By one hand, he choked her mouth and by the other hand, he lifted her clothes. At about 9 O'Clock in the night, Jagdish opened the door of her hut and came inside. He lifted her in his arms and brought her out. She started shouting. Thereafter, Jagdish laid her down on the floor outside the hut. By one hand, he choked her mouth and by the other hand, he lifted her clothes. Thereafter, he opened his trousers zip and then forced himself upon her. When she tried to shout, her mouth was gagged. At that time, her 'jethani' came there. She shouted that thieves had struck. On hearing the shouts Sona Ram and Koja Ram came there. She and her sister-in-law told Sona Ram and Koja Ram about the incident. She also narrated that Babu Lal was sitting outside her house when the incident took place and ran away on seeing the witnesses. After her husband returned back from Jodhpur, she accompanied him to the Police Station and filed the report. In cross-examination, she stated that her husband was informed about the incident by Sona Ram and Koja Ram. She also alleged that she instructed Sona Ram and Koja Ram to inform her husband two days after the incident. Her husband came back from Jodhpur on the day after the incident and then she narrated the events to him and then both of them went to the Police Station for reporting the matter. She further admitted in her cross-examination that she knew Jagdish for the last 11 years and their relations were cordial. She admitted that Sona Ram was her brother-in-law. She further admitted in her cross examination that the fact mentioned in the F.I.R. that the accused committed rape upon her inside the hut was incorrect and that the rape was committed on the floor outside the hut. She also admitted that her eldest daughter was unaware of the incident. She also admitted that on seeing Sona Ram, Koja Ram and Sohni coming towards her house, the accused ran away. Sohni (PW-7) was the 'jethani' (sister-in-law) of the victim. She alleged that on the fateful day, she heard shouts that thieves had come, on which, she ran towards victim s house. She saw the appellant Jagdish lying atop the victim. On seeing her, the accused Jagdish started running away and Babu Lal also ran away with him. Sohni (PW-7) was the 'jethani' (sister-in-law) of the victim. She alleged that on the fateful day, she heard shouts that thieves had come, on which, she ran towards victim s house. She saw the appellant Jagdish lying atop the victim. On seeing her, the accused Jagdish started running away and Babu Lal also ran away with him. On enquiry, the victim told her that Jagdish forcibly opened the door of her hut and carried her outside the hut. Thereafter, Jagdish lay her down and raped her. In cross-examination, the witness admitted that when she reached the place of the occurrence, the victim's children were awake. She stated that she sent the information of the incident to the victim's husband. Bhaga Ram (PW-8) was the first informant, the victim's husband. He alleged that he received the information through his brother Sona Ram on 24.5.2008 that his wife had been raped by the appellant Jagdish and that Babu Lal assisted him. On this, he collected his wages from the Contractor and came back to the village on 25.5.2008. His wife told him about the incident, where after, both of them went to the Police Station and reported the matter. The witness admitted in his cross examination that he received information of the incident on 24.5.2008 and came to the village on 25.5.2008. He was questioned about the omission of Sohni's name in the F.I.R. and he could not explain the same. Dr. Dinesh Kumar Sharma (PW-9) examined the victim on 28.5.2008 and found her to be habituated to sexual intercourse. He could not give any opinion regarding rape having been committed with the victim. Puran Prakash (PW-10), Ganpat Ram (PW-11), Ranjeet Singh (PW-12) and Bhagu Ram (PW-13) police constables were examined for the purpose of proving the forwarding of the seized articles to the F.S.L. Their testimony is of no consequences because the F.S.L. report was not placed on the record of the trial Court. Koja Ram (DW-1) was examined on behalf of the defence. He is the witness who as per the prosecution reached the place of the occurrence along with Sona Ram. The witness alleged that he heard the shouts that thieves had struck from Bhaga Ram's house. He deposed that he did not see Jagdish and Babu Lal at the scene of occurrence. He is the witness who as per the prosecution reached the place of the occurrence along with Sona Ram. The witness alleged that he heard the shouts that thieves had struck from Bhaga Ram's house. He deposed that he did not see Jagdish and Babu Lal at the scene of occurrence. The witness was unjustly permitted to be confronted with his police statement, but, not much could be elicited during his cross-examination. 10. The learned trial Judge at the conclusion of the trial proceeded to convict and sentence the appellants as mentioned above. 11. The incident is said to have taken place in the intervening night of 23.5.2008 to 24.5.2008. Bhaga Ram, the husband of the prosecutrix received the information of the incident on 24.5.2008 itself. He waited for two days before returning to the village thereafter the F.I.R. (Ex.P-6) was filed. In the written report (Ex.P-7), the name of witness Sohni does not surface. Sohni is the first person who is alleged to have reached the scene of occurrence upon hearing prosecutrix's cries. She is the sister-in-law of the prosecutrix and as such, the omission of her name in the F.I.R. is very significant. The witness Sohni in her testimony alleged that she heard the shouts of " pksj&pksj " on which, she went to the house of the prosecutrix. She did not state that the voice which she heard was that of the prosecutrix. 12. The prosecutrix alleged that Jagdish broke open the door and entered the hut and thereafter lifted her in his arms and brought her outside. She alleged that Jagdish gagged her mouth with one of his hands and with the other he lifted her clothes. Thereafter, he opened the zip of his trouser and started committing rape with her. She alleged that she raised the shouts of " pksj&pksj " the shouts, Sohni came there. Thereafter, Sohni also raised the same cry. On hearing their cries, Sona Ram and Koja Ram came there. Sona Ram and Koja Ram alleged that they heard the cries of the prosecutrix, on which, they reached the house of Bhaga Ram. At that time, Jagdish was coming out of the house and Babu Lal was standing outside. Babu Lal allegedly shouted that people are coming and then they ran away. Sona Ram and Koja Ram alleged that they heard the cries of the prosecutrix, on which, they reached the house of Bhaga Ram. At that time, Jagdish was coming out of the house and Babu Lal was standing outside. Babu Lal allegedly shouted that people are coming and then they ran away. The witness claims that he and Koja Ram pursued and tried to catch the accused but they could not be apprehended. Thereafter, they returned back to Bhaga Ram's house and at that time, Sohni came there. Thus, there is a serious discrepancy in the statements of Smt. 'P' (PW-6), Sohni (PW-7) and Sona Ram (PW-2) regarding the sequence in which Sohni reached the place of occurrence. The prosecutrix in her cross-examination further admitted that she instructed Sona Ram and Koja Ram to inform her husband two days after the incident. She further admitted that Sohni arrived at the scene of the occurrence while Jagdish was lying on her. She further admitted that on the night of the occurrence, only Sona Ram and Koja Ram came there and nobody else. Thus, it is apparent that Sohni's presence at the scene of occurrence after the incident is virtually ruled out by these circumstances. 13. A very significant improvement regarding the place of the occurrence was revealed during the cross-examination of the prosecutrix. As per the F.I.R., the rape is alleged to have been committed inside the hut, whereas, as per the statement of the prosecutrix, rape was allegedly committed with her in the courtyard outside the hut. This is a very significant improvement and the prosecutrix has changed the scene of the occurrence entirely during her deposition from what was mentioned in the F.I.R. 14. Another significant fact is regarding the non-examination of the prosecutrix daughter. The prosecutrix alleged that her nine year's daughter was also sleeping with her in the hut along with the other younger children. A nine year's old girl would be a competent and a material witness for unfurling the truth. The prosecutrix admitted that the I.O. recorded the statement of her daughter during the course of the investigation. Neither the said statement was placed on the record nor the prosecution examined the girl during the trial, which is a serious infirmity in the prosecution case. The non-examination of the girl goes to the root of the matter and affects the veracity of the prosecution story. Neither the said statement was placed on the record nor the prosecution examined the girl during the trial, which is a serious infirmity in the prosecution case. The non-examination of the girl goes to the root of the matter and affects the veracity of the prosecution story. Co-incidentally, Sona Ram and Sohni both happened to be close relatives of the first informant. Sona Ram admitted that between his 'dhani' and the dhani' of Bhaga Ram, the first informant, there are numerous other 'dhanis'. He further admitted that the persons living in those 'dhanis' would hear any shouts raised in Bhaga Ram's 'dhani' before him. But, no person from any nearby 'dhani' was examined by the prosecution. Sona Ram further admitted that when he reached the scene of occurrence, he was Jagdish and Babu Lal running away. He stated that at that time, the prosecutrix was shouting but the did not name anybody. Sona Ram further admitted that there was no source of light at the scene of the occurrence but be claimed to be carrying a torch. However, he did not state that he identified the accused in the torch light. In this view of the matter, this Court is of the opinion that the witnesses Sona Ram and Sohni are cooked up witnesses. The possibility of the relations between the prosecutrix and appellant Jagdish being consensual and having been exposed in more likely in the background of the facts available on the record. The delay of nearly three days in filing of the F.I.R. appears to have been utilised for creating the story of rape rather than anything else. 15. So far as the appellant Babu Lal is concerned, the highest allegation against him is that he was sitting outside the hut of the prosecutrix and ran away upon the shouts being raised. As has been discussed above, Sohni appears to be a cooked up witness because she was not named in the F.I.R. Thus, her identification of Babu Lal is of no advantage to the prosecution. So far as the witness Sona Ram is concerned, he alleged that he saw the appellant Babu Lal running away with Jagdish from a distance of 10 poundas' from Bhaga Ram's dhani'. So far as the witness Sona Ram is concerned, he alleged that he saw the appellant Babu Lal running away with Jagdish from a distance of 10 poundas' from Bhaga Ram's dhani'. In this view of the matter, there is hardly any material on the record of the case, by which, Babu Lal can be held to be a conspirator with Jagdish in committing the crime of rape. 16. As a matter of fact, the alleged presence of Babu Lal outside the victim's hut lends support to the defence theory regarding the relations between the victim and the appellant Jagdish being consensual. If at all, Babu Lal had conspired with Jagdish to commit rape upon the prosecutrix, then, his presence would be more natural inside the victim's hut in order to assist Jagdish in snubbing out any chance of resistance in the alleged design of rape. His presence outside the hut rather corroborates the fact that Jagdish had gone into the hut for having carnal relations with the prosecutrix with her consent. Babu Lal was on watch to warn in case anybody noticed the extramarital activities going on. 17. In view of the aforesaid discussion, the conviction of the appellants as recorded by the learned trial Court by its judgment dated 29.6.2009 cannot be sustained and the appellants are entitled to be acquitted. 18. The upshot of the above discussion is that both the appeals are allowed. The conviction and sentences of the appellants as recorded by the learned Addl. Sessions Judge, Fast Track No. 2, Jodhpur by judgment dated 29.6.2009 in Sessions Case No. 6/2008 are set aside. The appellant Jagdish is in jail. He shall be released forthwith if not required in any other case. The appellant Babu Lai is on bail. His bail bonds stand discharged.Appeal allowed. *******