JUDGMENT 1. - This Criminal Appeal under section 374 Cr.P.C has been preferred against the judgment dated 4.3.2006 passed by Addl. Sessions Judge, Rajgarh, Alwar in Sessions Case No. 35/2005, whereby the present appellants have been convicted and sentenced under section 376 (2) (g) IPC as under: Ten years rigorous imprisonment and to pay fine of Rs. 25,000/- each and in default of payment of fine, to further undergo two years SI. 2. The brief facts of the case are that on 24.9.2005, the complainant Kishorilal Meena lodged a written report Ex. P-1 at Police Station Rajgarh stating therein that both the accused appellants have committed rape and sexual exploitation with her minor daughter Mishrilata and they are committing rape on her from last 8 months. They have threatened his daughter and on 23.9.2005 her pregnancy has been terminated which was due to the rape committed by the appellants. An FIR No 248/2005 has been registered for the offence under section 376 IPC. After investigation, charge-sheet has been filed against the present appellants. Offence was triable by the Sessions court, therefore, it was committed to the court of Addl. Sessions Judge, Rajgarh, Alwar. Charges against the appellants for the offence under section 376(2)(g) IPC were framed. 14 witnesses have been examined in support of the prosecution story. Statements of accused were recorded under section 313 IPC and after hearing the case, the present appellants have been convicted and sentence as stated above. Hence this appeal: 3. The contention of the present appellants is that the whole prosecution story is unreliable as it does not inspire any confidence. FIR is delayed one. Time of rape and pregnancy does not correlate and the age of the prosecutrix was 19 years at the time of incident, the court below has wrongly convicted the accused appellants. Hence, they should be acquitted. 4. Per contra, the contention of learned Public Prosecutor is that the age of the prosecutrix, according to school certificate is 6.7.1989. Court below has rightly convicted the accused appellants, no interference is needed. 5. Heard learned counsel for the parties and perused the record of the case. 6. Hence, they should be acquitted. 4. Per contra, the contention of learned Public Prosecutor is that the age of the prosecutrix, according to school certificate is 6.7.1989. Court below has rightly convicted the accused appellants, no interference is needed. 5. Heard learned counsel for the parties and perused the record of the case. 6. Regarding contention about the age of the prosecutrix, the prosecutrix herself has stated in her statement before court that her date of birth is 6.7.1989 and the incident as alleged by the prosecution is of 25.1.2005 and to support her contention about age, marksheet of 8th class Ex.P-10, secondary board mark-sheet Ex.P-11, secondary school certificate Ex.P-12 have been placed on record and Mishrilata has specifically stated that in all these documents her date of birth has been mentioned as 6.7.1989. It is true that father and mother of prosecutrix PW-3 Shakuntala and PW-5 Kishorilal have not narrated the date of birth of the prosecutrix but in view of the fact that class 8th mark-sheet, secondary school certificate and mark-sheet have been placed on record to prove the age of the prosecutrix and further all these documents have been proved by the prosecution with the help of statement of PW-1 Mishrilata. Court below has rightly arrived at the conclusion that at the time of incident, the prosecutrix was minor. The contention of the defence is that Dr. Ravi Mathur PW-14 has stated that the bony age of the prosecutrix was above 19 years. PW-2 Dr. Mona Gupta has also stated that prosecutrix has stated that her age 17 years on the date of medical examination 24.9.2005. On the strength of this, the contention of the defence is that the prosecutrix is major one. Further contention of the defence is that according to statement of prosecutrix,elder brother of Mishrilata was got married on 8.4.2003 and her mother Shakuntala have stated that at the time of marriage of Pankaj, he was 22-23 years of age, meaning thereby that in 2005 when the alleged incident has taken place, the brother of Mishrilata was of 24 to 25 years of age and admittedly Mishrilata is 4 years younger to her elder brother, hence the age of the prosecutrix was 20-21 years on the time of the incident and defence has relied upon 2011 (5) SRJ 348 Alamelu and Anr. State represented by Inspector of Police, 2010 (1) WLC (SC) Criminal 142, Sunil v. State of Haryana, 1982 Cr.L.J. 1777, Jaya Mala v. Home Secretary Government of Jammu and Kashmir, 2011 Cr.L.R.(Raj.) 1018, Raju v. State of Rajasthan, wherein on the facts of the cases, the age has been determined but here in the present case as stated earlier, PW-1 Mishrilata has specifically narrated her age which was further corroborated by the school certificate and mark-sheet of matriculate and hence the court below has rightly considered the prosecutrix as minor. 7. Other contention of the defence is that whole story of the prosecution is unnatural and not believable. 8. PW-1 Mishrilata has stated that on 25.1.2005 at about 10.30 in the morning when she was going from Machadi Gaun to Eesbana,the present appellants met her in the way, both caught her and taken her to the mere by Nala, Ramekesh tied her hand with Chunni, first Radheshyam has committed rape on her, thereafter Radheyshyam has caught hold of her hands and Ramkesh committed rape on her. Her statement also reveals that thereafter at many occasions both the present appellants have committed rape on her, sometime when she was going to school and sometime when she was coming from school. She also got pregnant and on 17.9.2005, both the present appellants gave her some tablets. She took the tablets and pregnancy was terminated on 23.9.2005. Thereafter she narrated the story to her family members. On 24.9.2005, report was lodged. In her cross examination firstly she has stated that both the appellants were not known to her but at the end of the examination she has admitted the fact that Ramkesh was her classmate and Shakuntala mother of the prosecutrix has stated that both the appellants are their distant relatives. PW-5 Kishorilal has stated that Ramkesh is their neighbour and they belonged to same family. Further Ex.D-2 admission letter of prosecutrix was also produced by the Ramkesh accused. Hence, the contention of Mistrilata that both the appellants were not known to the prosecutrix seems to be false. 9. In cross examination, the prosecutrix has stated that the first time on 25.1.2005, both the appellants have committed rape on her whereas in her statement recorded under section 161 Cr.P.C, she has narrated that from August to September 2003, she has been raped by the appellants. 9. In cross examination, the prosecutrix has stated that the first time on 25.1.2005, both the appellants have committed rape on her whereas in her statement recorded under section 161 Cr.P.C, she has narrated that from August to September 2003, she has been raped by the appellants. It is also material contradictions between the two statement of the prosecutrix. 10. The prosecutrix has stated that the present appellants have committed rape with her for about 2-3 months. They have committed the rape on the same place meaning thereby at the Nala and every time rape was committed when she was going to school and from coming there. It has been specifically admitted by the prosecutrix that her elder brother was also studying with her in the same school. If the appellants were committing rape on her while going or coming from school, it was very much within the control of the prosecutrix to accompany with her brother to the school but the prosecutrix has not tried to accompany her brother while going or coming to school. PW-3 Shakuntala has stated that two other girls of the village were also studying with the prosecutrix and they used to go school one after another. Hence going of the prosecutrix alone in spite of the fact that the appellants were committing rape on her shows her unnatural conduct and cannot be relied upon. 11. The prosecutrix has been medically examined by Pw-2 Mona Gupta, no injury marks have been found on her body in spite of the fact that every time rape has been committed on her in Nala which was having stones, Bajari etc. Investigating Officer PW-6 Sampati Khan has stated that he prepared the site plan and rape has been committed in Nala where stones were lying. Absence of injury on the body and private parts of the prosecutirx makes the whole incident unreliable in the light of specific manner of incident. Prosecutrix has improved her statement stating therein that every time appellants were having Katta in their possession and by showing Katta they had committed rape on her whereas in statements under section 161 and 164 Cr.P.C, this fact has not been narrated. 12. According to statement of Mishrilata, the first incident of rape was committed on 25.1.2005 but she did not narrate the incident to anybody. 12. According to statement of Mishrilata, the first incident of rape was committed on 25.1.2005 but she did not narrate the incident to anybody. She has narrated the story first time to her family members on 23.9.2005 and there was no reason not to disclose the incident to her father and mother immediately. PW-5 Kishorilal father of the prosecutrix has stated that on 25.1.2005 at 10 am in the morning, her daughter has stated him that the rape has been committed on her by accused appellants. Surprisingly the report of the offence has been lodged on 24.9.2009 with an extraordinary and unexplained delay. The behaviour of the prosecutrix was quite unnatural. On 25.1.2005 the date of first incident of rape. She went directly to the school and reached school at 10.45 am but she has not narrated the incident to anybody. The contention of the prosecutrix is that when first time the appellants have committed rape on her she made cries but no one turned up and every time when rape has been committed on her she made hue and cry but nobody has heard her cries. There was no occasion for the prosecutrix for going through lonely place moreover when other girls and even her brother were studying in the same school in spite of this fact she went alone on the spot and afforded an opportunity for committing rape on her. 13. The other contentions of the prosecution is that due to this incident of rape, she got pregnant. The pregnancy has been terminated on 23.9.2005. PW-2 Dr. Mona Gutpa has stated that when prosecutrix came to her, she was having dead child which was of 7 months but no post mortem or DNA test has been conducted to ascertain the paternity of the child. The contention of Mishrilata is that the appellants gave her three tablets and on taking these tablets, the pregnancy was terminated, whereas the PW-2 Dr. Mona Gupta has stated that Mishrilata stated her she has get her pregnancy terminated at private hospital. The contention of Mishrilata is that the appellants gave her three tablets and on taking these tablets, the pregnancy was terminated, whereas the PW-2 Dr. Mona Gupta has stated that Mishrilata stated her she has get her pregnancy terminated at private hospital. The contention of the defence is that at the time of termination of pregnancy,according to statement of Mishrilata, the fetus was only 2 to 3 months and PW5 Kishorilal stated that at the time of termination of pregnancy, the fetus was of four months and if the fetus was only of 3 to 4 months at the time of termination i.e in September 2005, the story of rape in January, 2005 could not co-relate the accused present appellants with the crime as PW-1 has specifically stated that after 23.3.2005 she never went to the school and the appellants have not committed rape on her after 23.3.2005. Hence, the story of pregnancy and its termination does not corelate and could not implicate the present appellants. Mishrilata has stated that terminated fetus has not been taken to Doctor or to Police whereas mother of the prosecutrix has stated that fetus was broken down into pieces and they have taken 5 to 7 pieces at the police station. Kishorlilal has stated that died fetus has been shown to the Doctor, hence there are significant contradictions about this fact also. 14. The investigating officer has stated that accused appellants have committed rape on the prosecutrix in April, May, June, July and August, 2005 whereas the prosecutrix has denied the fact and specifically narrated that after 23.3.2005, she never met to the accused appellants. Prosecutrix on material facts has resided from her previous statement Ex. P-8 and Ex.P-9 recorded under sections 161 and 164 Cr.P.C. The other interesting factor is that PW-3 Shakuntala has stated that present appellants gave three tablets to the prosecutrix to get pregnancy terminated. The two tablets were taken by Mishrilata,one table was handed over to the police but none prosecution witnesses has corroborated the story and tablet handed over to the police has not been produced. 15. The two tablets were taken by Mishrilata,one table was handed over to the police but none prosecution witnesses has corroborated the story and tablet handed over to the police has not been produced. 15. The other unreliable conduct of the prosecutrix is that she was pregnant for 4 to 5 months and it is very difficult to conceal this fact from other as 4 to 5 months pregnancy could be known by the appearance of the lady only but relatives and even the mother of the prosecutirx could not know about the pregnancy until it was terminated. 16. Having considered the above contradictions, significant omissions and unnatural and unreliable manner of incident, the court below has not rightly considered the statement of Mishrilata along with statement of her father and mother. The above factors clearly show that the testimony of the prosecutrix suffers from infirmity and to base the conviction on the same is unsafe. Conduct of the prosecutrix and his family members is unnatural. The defence has relied upon the 2000 (1) RCC 559, Phool Chand v. State of Rajasthan, where the statement of prosecutrix found to be unreliable, it has been asserted that conviction should not be sustained on the unreliable testimony of the prosecutrix. 17. Further reliance has been placed on AIR 2002 SC 476 , Surjan v. State of M.P. Where the evidence of prosecutrix was unreliable does not inspire confidence and incident has been not disclosed by the prosecutrix immediately. FIR has been submitted after an unexplained delay. 18. Further reliance has been placed on AIR 2003 SC 818 , Vimal Suresh Kamble v. Chaluverapinake Apal SP and another , where it has been held that wherein the evidence of the prosecution is unreliable, uncorroborated and highly unnatural conduct, no conviction could be based on the same. Here in the present case also the evidence of the prosecution is unreliable and highly unnatural as considered at length. The whole story seems to be artificial. Furthermore, medical opinion does not corroborate the story of rape. 19. The court below has not rightly considered the evidence on record, statement of prosecutrix are unreliable and furthermore the evidence of her father and mother also do not inspire confidence. FIR has been lodged after unexplained and extraordinary delay and medical opinion also has not supported the prosecution case. 20. 19. The court below has not rightly considered the evidence on record, statement of prosecutrix are unreliable and furthermore the evidence of her father and mother also do not inspire confidence. FIR has been lodged after unexplained and extraordinary delay and medical opinion also has not supported the prosecution case. 20. In view of the above, both the appellants deserve to be acquitted from the charge under section 376 (2)(g) IPC. The appeal is allowed and the appellants are set at liberty if not required in any other case.Appeal allowed. *******