JUDGMENT Hon’ble Sudhanshu Dhulia, J. 1. Heard Mr. S. P. S. Panwar, Senior Advocate assisted by Mr. H. C. Pathak, Advocate for the appellant and Mr. Suhail Siddiqui, A.G.A. for the State. 2. At the outset, it needs to be mentioned here that the present matter pertains to Section 376 of the I.P.C. By an amendment in the I.P.C., Section 228A has been inserted vide Act No.43 of 1983, which bars the disclosure of the identity of the prosecutrix by publication and in fact it makes it an offence. Although, printing and publication in a law general is not included in the definition of “printing and publication” in the above provision for which there are several pronouncements by the Hon’ble Supreme Court, yet, purely for reasons of abundant precaution, the name of the alleged victim has not been mentioned in the present judgment and the victim is only addressed here as the “prosecutrix”. 3. The present appeal arises out of the judgment and order dated 30.05.2006 passed by the Additional Sessions Judge, Haridwar in Sessions Trial No.297/2001, whereby the appellant i.e. Yaseen was convicted under Section 376 of the I.P.C. and sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.5,000/-. In default of payment of fine, the appellant has to further undergo rigorous imprisonment for six months. The appellant / accused was also convicted under Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the S.C. & S.T. Act) and sentenced to undergo rigorous imprisonment of one year and a fine of Rs.2,000/-. In default of payment of fine, the appellant has to further undergo rigorous imprisonment of two months. The amount of fine imposed on the appellant / accused shall be paid to the victim. Both the sentences are to run concurrently. 4. Further, it is also not in dispute that the prosecutrix belongs to a Scheduled Caste community. 5. Brief facts of the prosecution case are that an F.I.R. was lodged on 16.06.2001 at 5:15PM at police station Manglore, Roorkee, Haridwar by one Saudagar the father of the prosecutrix alleging that he and his family work in a brick kiln known as “R. B. Bhatta” of Dehradun, which comes under the police station Manglore, Haridwar. 5. Brief facts of the prosecution case are that an F.I.R. was lodged on 16.06.2001 at 5:15PM at police station Manglore, Roorkee, Haridwar by one Saudagar the father of the prosecutrix alleging that he and his family work in a brick kiln known as “R. B. Bhatta” of Dehradun, which comes under the police station Manglore, Haridwar. On 15.06.2001 in the evening at about 7–8 PM his daughter aged about 14 years had gone outside the house to answer the call of nature, and when she did not return, his family started a search for her, but did not succeed in locating her. On the next morning i.e. 16.06.2001, Pappu, Mahavir and Chandra Bahaar etc. (who are also co-workers in the same brick kiln), found the girl in an unconscious stage in the nearby sugarcane field. These persons came to the “Bhatta”* alongwith the girl and accordingly informed the complainant. The prosecutrix regained conscious after sometime and said that last evening the contractor of the brick kiln, namely, Yaseen / appellant, had raped her, on the point of a countrymade pistol (“Katta”). 6. On the basis of the written report, a case was registered against the appellant under section 376 I.P.C. and 3(1)(xi) of the S.C. & S.T. Act. 7. The prosecutrix was medically examined at the Civil Hospital, Roorkee, District Haridwar by Dr. Ranjan Lamba (PW10) on 16.06.2001 at 8.30 PM. As per the medical report, the breasts of the prosecutrix were well developed, few black pubic hairs were also present. On internal examination, it was found that the hymen was torn, tags of old fibrous tissue present, and the vagina admits two fingers easily. The medical report further states that no injury was seen over her body or on her private parts. Vaginal smear was sent for pathological test and she was referred for x-ray examination in order to ascertain her age. In the supplementary report dated 02.07.2001, no spermatozoa was seen dead or alive, and hence no definite opinion about rape could be given. The age of the girl was detected to be between 16 to 17 years. 8. The matter was investigated and a chargesheet was filed against the accused person. Thereafter, the matter was committed to the Court of Sessions, who framed charges against the accused appellant under Section 376 I.P.C. and Section 3(1)(xi) of the S.C. & S.T. Act on 09.01.2002. 9. 8. The matter was investigated and a chargesheet was filed against the accused person. Thereafter, the matter was committed to the Court of Sessions, who framed charges against the accused appellant under Section 376 I.P.C. and Section 3(1)(xi) of the S.C. & S.T. Act on 09.01.2002. 9. In order to prove its case, the prosecution has examined as many as 12 witnesses. The prosecutrix herself was examined as PW1 on 07.10.2002. The prosecutrix recognized the accused who was present in the court and said that he works as a Contractor in the brick-kiln known as “R. B. Bhatta”, where both his mother and father are workers. She further states that the alleged incident was of about 1 year & 4½ month back, when at about 7:30PM as she had gone to answer the call of nature in the sugarcane field, Yaseen / accused came and raped her on the point of a “Katta” (the word “Katta” is used for a countrymade pistol in Uttarakhand & Uttar Pradesh). The prosecutrix further states that the accused inserted his genitals into her private parts and then mounted on top of her. Later she states that she became unconscious. She regained her consciousness at the brick kiln (the next day in the morning) and after that she informed her father about the incident. The prosecutrix further states that she was taken to the police station, where his father lodged an F.I.R. and then she was taken to the hospital at Roorkee. The prosecutrix was wearing Salwar-Kurta at the time of incident, a ‘fard’ of which was prepared as Ex.1 & 2. When these clothes were brought before the prosecutrix in the court, the prosecutrix identified the same as the clothes which she was wearing at the time of incident. 10. There have been some discrepancies between the evidence of the prosecutrix’s mother and father regarding their temporary residence in the brick-kiln and the place where they generally go to defecate. The prosecutrix states in her cross examination that she had gone to the sugarcane field, which is at a distance of about 200 to 250 foot-steps from her house, whereas her father and mother disclose the distance to be much less, only 30 to 40 foot-steps from their house. The prosecutrix states in her cross examination that she had gone to the sugarcane field, which is at a distance of about 200 to 250 foot-steps from her house, whereas her father and mother disclose the distance to be much less, only 30 to 40 foot-steps from their house. As to whether there was light on the spot or not, she answers that there was no light, but it was not dark and sun had not set as yet. The prosecutrix further said in her cross examination that the accused caught her from behind and threw her to the ground and when she fell on the ground, the accused fell on top of her and then raped her. The prosecutrix showed her ignorance as to what is a “Katta” (countrymade pistol), and whether it is made of metal or as to what its length it is, etc. But this may not be very relevant. The prosecutrix further states that she resisted the act of the accused and raised a noise, but nobody came to her rescue and later she became unconscious. She does not know how much time she remained unconscious. She regained her consciousness on the next day when she found herself at the brick-kiln (“Bhatta”). On suggestion as to the state of her clothes she states that the “Naada” (strip) of the Salwar was broken and then the accused fell on top of her and she does not know as to whether there was any injury or blood in her body. She does not know whether any blood was coming out from her private parts when she was going to police station and hospital. She further states that she had no sexual intercourse prior to the alleged incident. On a suggestion being made that the sexual intercourse was done in the field of sugarcane, which was recently cut and thus “ponge” (remaining portion of sugarcane) were still on the field and therefore she must have been injured, the prosecutrix answers that she was not injured! 11. Saudagar Singh, who is the father of prosecutrix, was examined as PW1. He got the F.I.R. scribed through one Bharat Veer. He reiterated the entire prosecution story as has been stated in the first information report. 11. Saudagar Singh, who is the father of prosecutrix, was examined as PW1. He got the F.I.R. scribed through one Bharat Veer. He reiterated the entire prosecution story as has been stated in the first information report. During the cross examination, he states that the girl was found in the field of sugarcane, which is at a distance of 10 to 20 foot steps from the house. He further states that he did not find any injury either on the hands or legs of the prosecutrix. 12. Smt. Chando, who was the mother of the prosecutrix, was examined as PW3. She states that the field where her daughter was found in an unconscious stage was about 20 steps away from the house. 13. The prosecution has also examined Ram Pal PW4, Sunder Lal PW5, Balbeer PW6, Om Prakash PW7 and Budh Singh PW8. These were other workers of brick-kiln (Bhatta) and they saw the prosecutrix in an unconscious stage in the field and took her to the brick-kiln (Bhatta) where the complainant was working. However, these witnesses were declared hostile. 14. Dr. Yogesh Kumar was examined at PW9, who proved the x-ray report. Dr. Ranjana Lamba, who medically examined the prosecutrix on 16.06.2001 at Civil Hospital, Roorkee, was examined as PW10. Yogendra Singh PW11 and Surendra Singh PW12 are the formal police witnesses of the prosecution. 15. The most crucial aspect of the present case is the testimony of the prosecutrix PW3. The totality of the circumstances and the manner in which the incident occurred has been taken into consideration by this Court. The prosecutrix belongs to a lower stratum of the society to a Scheduled Caste community, who works in the brick-kilns during seasons. The Court is also conscious of the fact that the accused here is a contractor, who is responsible for bringing these workers to work in the brick-kiln and is also responsible to make payment to them, and therefore he is in regular touch with the workers who work in the brick-kiln. It is also true and a well settled position of law that the conviction of an accused can be based on the sole testimony of the prosecutrix, provided though that the testimony is truthful and inspires confidence. 16. It is also true and a well settled position of law that the conviction of an accused can be based on the sole testimony of the prosecutrix, provided though that the testimony is truthful and inspires confidence. 16. The case of the prosecution that she fell unconscious while she was being raped can be believed for the reason that she might have become unconscious for more than one reason and therefore, this may itself not be in doubt. What, however, is extremely doubtful is that the prosecutrix remained unconscious for more than 12 hours, or nearly 12 hour! There is no apparent injury on the body of the prosecutrix, which could have resulted in such a long period of unconsciousness, nor any explanation to this effect has come forward by the prosecution. There is no medical opinion on record which may suggest that there was a possibility for the prosecutrix to have remained unconscious for nearly 12 hours. Further it is not the case of the prosecution that her state of unconsciousness was induced by whatever method or that she was drugged. Infact she was not subjected to any such medical test. There is no blood report or urine report to suggest that the prosecutrix was drugged which resulted in her remaining unconscious for such a long time. 17. The entire case of the prosecution is based on an important fact that the prosecutrix remained unconscious throughout the night for nearly 12 hours. All the same, this important fact has not been established by the prosecution. This failure on the part of the prosecution casts a heavy doubt on the story of the prosecution. 18. The defence taken by the accused before the trial court that he has been framed in the case as there was a demand from the side of the parents of the prosecutrix of payment of wages which the accused allegedly did not pay, has also to be seen in this light. 19. Further there are frequent discrepancies in the testimony of prosecution witnesses. Though the discrepancies are minor but they are far too many and are at more places than one. Hence cannot be ignored. 19. Further there are frequent discrepancies in the testimony of prosecution witnesses. Though the discrepancies are minor but they are far too many and are at more places than one. Hence cannot be ignored. These discrepancies are not only in the statements of PW1, PW2 and PW3, namely, Saudagar Singh, Smt. Chando and Miss Dharamawati, respectively but also the fact that the alleged incident is said to have taken place in close proximity of the dwelling of these witnesses yet they were not aware of the same, nor was any other person of the neighbourhood when there is a specific statement given by the prosecutrix in her cross examination that she vigorously raised a cry but none turned up. This is highly improbable. 20. All the witnesses, who had actually found her in an unconscious stage, have also turned hostile. This aspect of the matter places grave doubts on the story of the prosecution. For this reason alone, this Court is of the opinion that at least a benefit of doubt was liable to be given to the accused / appellant as the prosecution has not fully established the charges against the accused / appellant, and its case has not been established beyond reasonable doubt. I find that the learned trial court has erred in convicting and sentencing the appellant under Section 376 I.P.C. and 3(1)(xi) of the S.C. & S.T. Act. 21. Hence, the appeal is allowed and the conviction and sentence against the appellant awarded by the trial court Sessions Trial No. 297 of 2001 is hereby set aside. The appellant is acquitted from the charge levelled against him. He is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. 22. Let the record be sent back to the court concerned.