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2013 DIGILAW 801 (HP)

Ganesh Singh @ Baba v. State Of Himachal Pradesh

2013-09-09

RAJIV SHARMA

body2013
JUDGMENT : Rajiv Sharma, J. This appeal is directed against the judgment and order of conviction dated 27.2.2013 rendered by the learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala, District Kangra, H.P., in Sessions Case No. 3- N/VII/12, whereby the appellant has been convicted under Sections 376/511, 307, 394, 454 and 201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and fine of Rs.2000/- and in default of payment of fine, to undergo rigorous imprisonment for six months under Section 376/511 of the Indian Penal Code; to undergo rigorous imprisonment for seven years and fine of Rs. 5000/- and in default of payment of fine to undergo rigorous imprisonment for one year under Section 307 of the Indian Penal Code; to undergo rigorous imprisonment for seven years and a fine of Rs.5000/- and in default of payment of fine to undergo rigorous imprisonment for one year under Section 394 of the Indian Penal Code; to undergo rigorous imprisonment for two years and fine of Rs.1000/- and in default of payment of fine, to undergo rigorous imprisonment for three months under Section 454 of the Indian Penal Code; and to undergo rigorous imprisonment for two years and fine of Rs.1000/- and in default of payment of fine, to undergo rigorous imprisonment for three months, under Section 201 of the Indian Penal Code. All the aforesaid sentences have been ordered to run concurrently and the period of detention undergone by the appellant during investigation and trial has been ordered to be set off. 2. The case of the prosecution, in a nutshell, is that on 7.9.2011, the prosecutrix (PW3) was in her house at village Kuttan, Tehsil Nurpur, District Kangra (HP). Her children had gone to school and her father-in-law and mother-in-law had gone to Chakki Kandwal for shopping. At about 1.30 P.M. when the prosecutrix went inside the bathroom to take bath after washing clothes, the appellant came inside the bathroom of the prosecutrix and attempted to rape on her. The prosecutrix cried at the spot, however, due to heavy rain and place being isolated, nobody could hear the noise of the prosecutrix. The prosecutrix resisted the act of the appellant. When the appellant failed to fulfill his aim of committing rape on the prosecutrix, he tried to strangulate the prosecutrix and he hit the head of the prosecutrix on the wall. The prosecutrix resisted the act of the appellant. When the appellant failed to fulfill his aim of committing rape on the prosecutrix, he tried to strangulate the prosecutrix and he hit the head of the prosecutrix on the wall. He also gave a blow of knife on the throat of the prosecutrix, due to which she could not speak. The appellant had also taken away the ornaments of the prosecutrix. The prosecutrix managed to come to the verandah of her house by crawling and she wrapped her body with the bed sheet. In the meanwhile, the children of the prosecutrix came there and by gestures, she asked them to provide her copy and pencil. She wrote on the paper "TAU KO PHONE KARO". The children did not know number of their uncle (Tau). The prosecutrix asked her children to call Kallu from her neighbourhood. The son of the prosecutrix went to the house of Kallu and Smt. Nirmal Devi, mother of Kallu, came at the spot after some time. The villagers had also come on the spot. In the meantime, mother-in-law and father-in-law of the prosecutrix had also come on the spot. They had taken the prosecutrix to Sukh Sadan Hospital at Pathankot. The statement of the prosecutrix was recorded. It was found that the appellant had taken away the ornaments of the prosecutrix. The matter was reported to the police by Joginder Singh, father-in-law of the prosecutrix and an FIR was registered. Police investigated the matter and after completing the investigation and codal formalities, filed the challan in the Court. 3. The prosecution examined as many as 20 witnesses. The appellant also examined two witnesses in his defence. The learned trial court convicted and sentenced the appellant as stated hereinabove, on 27.2.2013. Hence, this appeal. 4. Mr. Vinay Thakur, Advocate, has vehemently argued that the prosecution has failed to prove the case against the appellant. According to him, there are discrepancies and material contradictions in the statements of the witnesses. According to him, his client has been falsely implicated. He then contended that his client was tortured by the police and thereafter the recoveries were effected. 5. Ms. Meenakshi Sharma, Additional Advocate General, has supported the impugned judgment and order dated 27.2.2013. 6. PW1, Subhash Chand, has testified that he visited Sukh Sadan Hospital at Pathankot on the direction of S.D.M. Nurpur, on 12.9.2011. He then contended that his client was tortured by the police and thereafter the recoveries were effected. 5. Ms. Meenakshi Sharma, Additional Advocate General, has supported the impugned judgment and order dated 27.2.2013. 6. PW1, Subhash Chand, has testified that he visited Sukh Sadan Hospital at Pathankot on the direction of S.D.M. Nurpur, on 12.9.2011. The doctor had told him that the prosecutrix was not able to speak anything, though she was able to write. He handed over blank papers to the prosecutrix. She had given her statement by writing on the papers vide Ext. PW1/A, which was attested by him. On his asking, the prosecutrix had told him that she had given her statement voluntarily and without any pressure. He had shown three photographs to the prosecutrix and she had pointed out towards one photograph. The statement was written by the prosecutrix herself on the paper, in which the photograph was affixed and he verified the statement vide Ext.PW1/B. Thereafter, he prepared the report, Ext.PW1/C and handed over the same to SDM Nurpur. The application which was moved to the SDM, Nurpur, is Ext.PW2/D, which was marked by the SDM Nurpur. He had also made the endorsement on this application vide Ext.PW1/E. In cross-examination, he deposed that he reached the hospital on 12.9.2011 at about 5.00 P.M.. He came to know that the prosecutrix was admitted there from 7.9.2011. ASI Ajeet Singh was with him. He has admitted that photo Ext. PW1/B was supplied to him by ASI Ajeet Singh, which was shown to the prosecutrix in the hospital. He admitted that PW1/B was supplied to him by ASI Ajeet Singh in the presence of the prosecutrix. He also admitted that when he went to the prosecutrix, her relatives were present there. He has volunteered that when statement of the prosecutrix was recorded, none else was present there, as they were asked to go outside the room. He testified that two other photographs, which were shown to the prosecutrix along with Ext. PW1/B, were not shown to him in the Court. 7. PW2, Joginder Singh, is father-in-law of the prosecutrix. He deposed that he along with his wife had gone to Chaki Kandhwal on 7.9.2011. His grand children had gone to school. The prosecutrix was alone in the house. PW1/B, were not shown to him in the Court. 7. PW2, Joginder Singh, is father-in-law of the prosecutrix. He deposed that he along with his wife had gone to Chaki Kandhwal on 7.9.2011. His grand children had gone to school. The prosecutrix was alone in the house. They came back at about 4.30 P.M. When they reached in the courtyard of their house, they found the prosecutrix lying there and blood was oozing out of the wound. Villagers had gathered there. He took the prosecutrix to Sukh Sadan Hospital, Pathankot and on the way, informed the police at Police Post Kandhwal regarding the occurrence. Police had come in the hospital. After admitting the prosecutrix in Sukh Sadan Hospital, Pathankot, he came back to his house with police. He found numerous articles lying scattered in the room of the prosecutrix and locker of the almirah was also open. The gold ornaments, i.e. mangal sutar, four bangles, one necklace and two ear rings and some currency were found missing from the locker. At that time, he was not having knowledge about the person who had committed the offence. His statement was recorded by the police under Section 154 Cr.P.C. vide Ext. PW2/A. The police visited the spot and took into possession blood stains from verandah and bath room of the prosecutrix. Hair and nose ring were also taken into possession. Blood stains were wrapped in a paper and were put in the plastic container. Hair and nose ring were also put in the same container and it was sealed with seal impression Y. According to him, one knife was also taken into possession by the police from water tank, which was kept in the bath room. The knife was sealed in a parcel with seal impression Y. He identified parcel Ext.P8 and knife Ext. P9, which were taken into possession by the police vide recovery memo Ext. PW2/C. On the same day, the police recovered a paper from the spot, on which the words "TAU KO PHONE KARO" were written. The same was taken into possession vide recovery memo Ext. PW2/D. In cross-examination, he stated that his statement for the first time was recorded by the police under Section 154 Cr.P.C. at about 5.00 P.M. when he came back to his house after admitting the prosecutrix in the Hospital. The same was taken into possession vide recovery memo Ext. PW2/D. In cross-examination, he stated that his statement for the first time was recorded by the police under Section 154 Cr.P.C. at about 5.00 P.M. when he came back to his house after admitting the prosecutrix in the Hospital. He admitted that in Ext.PW2/A he had mentioned that some unidentified person(s) had committed the offence. When he came back from Kandhwal with his wife, he found that his grand son and grand daughter were present in his house. He admitted that when he reached home, the prosecutrix was able to see, understand and write down the things, she intended to express. He also admitted that when he reached home, the prosecutrix had already written on the paper "TAU KO PHONE KARO" after procuring paper and pencil from his grand son. He further admitted that the prosecutrix had earlier told to his grand son through gestures to call Kallu, neighbourer. He volunteered that she had written Kallu on the paper. According to him, mother of Kallu had come to the spot. About 10-15 villagers had also gathered there, when he reached in the house. No other persons present at the spot knew about the assailant who had committed the offence. He had told the police at Police Post Kandhwal that some unidentified person(s) had committed the offence and he was taking the prosecutrix to Sukh Sadan Hospital, Pathankot. ASI Ajeet Singh, Incharge of Police Post Kandhwal had not gone to hospital with them, however, he had come in the hospital later on i.e. after about 15 minutes. He had not told the doctor as well as ASI Ajeet Singh that the prosecutrix was able to understand the things and she could write what she intended to. Police officials had not given their search to any body prior to entering inside the house. He did not remember the particular of the official of the police who had taken out knife, Ext.P9 from the water tank and who had collected the hair Ext. P3. No investigation was made in my presence regarding finger prints on the knife. 8. PW3, the prosecutrix has deposed that that on 7.9.2011 her children had gone to school and her father-in-law and mother-in-law had gone to Chakki Kandhwal. At about 1.30 P.M., after washing her clothes, she went inside the bathroom to take bath. P3. No investigation was made in my presence regarding finger prints on the knife. 8. PW3, the prosecutrix has deposed that that on 7.9.2011 her children had gone to school and her father-in-law and mother-in-law had gone to Chakki Kandhwal. At about 1.30 P.M., after washing her clothes, she went inside the bathroom to take bath. There was no door in the bath room, though the curtain was put in the door. According to the prosecutrix, the appellant came inside the bath room and tried to commit rape on her. The appellant caught hold of her from her hair and hit her head against the wall. He also gagged her mouth with cloth. Thereafter, the appellant gave knife blow on her throat and thereafter she fell down on the floor of her bath room. She became unconscious and when she regained consciousness, she tired to come out of bath room, but she could not walk. According to her, she came out of the bath by crawling and reached the verandah. She wrapped her body with the bed sheet, which was lying on the bench. After some time, her son and daughter came from School and inquired about her injury. She could not speak, but through gestures asked for pen/pencil and paper. They supplied her paper and pencil and she wrote on the paper with pencil " TAU KO PHONE KARO". The paper is Ext. P10. Her children were not having telephone number of their "TAU". The word "Kallu" was written on the same. Her son went to call her neighbourer, namely, Kallu. Thereafter, mother of Kallu came at the spot. Villagers have also gathered there. After some time, her father in law and mother in law came at the spot, who took her to Sukh Sadan Hospital, Pathankot. She remained admitted in Sukh Sadan Hospital, Pathankot w.e.f. 7.9.2011 to 17.9.2011. She had given her statement to Naib Tehsildar, Nurpur, in writing vide Ext. PW1/A. According to her, three photographs of different persons were shown to her by Naib Tehsildar and she was asked to identify the person, who had intruded in her house. She identified the appellant with the help of photograph, Ext.PW1/B. She remained admitted in Military Hospital, Pathankot upto 30.9.2011. According to her, later on she came to know in the Hospital that her ear ring and nose ring were missing. She identified the appellant with the help of photograph, Ext.PW1/B. She remained admitted in Military Hospital, Pathankot upto 30.9.2011. According to her, later on she came to know in the Hospital that her ear ring and nose ring were missing. When she came back from the Hospital, she also came to know that her ornaments and cash were missing from the almirah. She had identified the knife, Ext.P9 in the Court, with which the appellant had given blow to her. She identified the document, Ext.PW3/A written by her in the hospital. In cross-examination, she admitted that she was able to see, hear and understand the things. Due to injury, she was not able to speak, but she could write. Her children had asked her after seeing the blood oozing out of her throat, who had caused injury to her. She had asked her children to provide pen/pencil and paper by way of gestures. Thereafter, she wrote on that chit "TAU KO PHONE KARO". She also admitted that she had not written on the paper, who had caused injury to her. Her son told her that he was not having telephone number of his "TAU". Her son went to call Kallu when she wrote the word Kallu on paper. The villagers had come at the spot firstly and thereafter her father in law and mother in law reached there. Her mother in law and father in law had not asked anything from her. On the way, her father in law had informed the police at Police Post Kandhwal. She admitted that her father-in-law had not told to ASI Ajeet Singh, who committed the offence. She also admitted that after arrest of the appellant, his photograph was published in the newspaper. She denied that photograph Ext.PW1/B was shown to her by the police in the hospital prior to 12.9.2011. She told the Naib Tehsildar in writing that she resisted the assailant with full strength. She could not tell the duration when she resisted the act of attempt to commit rape by the appellant. She admitted that during resistance, she suffered multiple injuries on her body. The appellant struck her head against the wall after holding her from the hair. She did not remember how many times her head was struck against the wall. She also admitted that she suffered injuries on head. She admitted that during resistance, she suffered multiple injuries on her body. The appellant struck her head against the wall after holding her from the hair. She did not remember how many times her head was struck against the wall. She also admitted that she suffered injuries on head. She had mentioned the name of the appellant in her statement before the Tehsildar. She had not told her children and the villagers on 7.9.2011 that the appellant had entered into her bath room and tried to commit rape on her. 9. PW4, Santokh Singh, deposed that he was driver of Van No. HP38-1177. On 7.9.2011 at about 3.20 P.M. he saw the appellant walking on the path. He asked the appellant why he was looking perplexed. Thereafter, he went home. 10. PW5, Jaspal Singh, has deposed that on 8.9.2011 he had gone to Sukh Sadan Hospital, Pathankot to enquire about the well being of the prosecutrix. The police had come to the hospital for recording the statement of the prosecutrix, but the doctor had opined that she was not able to speak, though she was able to write. The prosecutrix wrote her statement on a paper, Ext.PW3/A supplied to her by the police, which bears his signature. In cross-examination, he testified that the prosecutrix is his niece. ASI Ajeet Singh was present at the time of writing the statement. ASI Ajeet Singh had supplied the paper and ball pen to the prosecutrix. In his presence, no certificate was issued by the doctor to the effect that the prosecutrix was not in a position to speak. 11. PW6, Nirmala Devi, deposed that on 7.9.2011 at about 3.30 P.M., Richu came to her and asked about the whereabouts of Kalu Chachu. She told him that Kalu had gone to Sabjzi Mandi. She went to the house of the prosecutrix and found that she was lying in her verandah and she was in the pool of blood. According to her, she took a glass of water from the kitchen of the prosecutrix and tried to make her to take water, but she could not drink. She admitted in her cross-examination that the prosecutrix is her relative. Volunteered that they were from the same village. She also admitted that news item regarding the occurrence had come in the newspaper on 9.9.2011. She admitted in her cross-examination that the prosecutrix is her relative. Volunteered that they were from the same village. She also admitted that news item regarding the occurrence had come in the newspaper on 9.9.2011. She also admitted that the appellant, his brother, Shiv Raj, Suresh and Rajesh were apprehended by the police on suspicion. 12. PW7, Master Arush, son of the prosecutrix, deposed that at the relevant time, he was studying in 3rd Standard in Shivalik Public School at Gangath. His younger sister was studying in 1st Standard in the same school. He was called by name Richu at home. His school used to close at 3.00 P.M. When he and his sister came back to their house from the school, they saw that their mother was lying in pool of blood in the verandah. She was making some gestures. He supplied a paper and pencil to her and she wrote on the same "TAU KO PHONE KARO". He was not having telephone number of his TAU. Thereafter, he went to the house of Kalu and found his mother there. He told her that his mother had suffered injury on her throat and the blood was oozing out of the wound. Mother of Kalu came at the spot. After some time, other villagers came there. Thereafter, his grand parents had also come there. 13. PW8, Rashpal Singh, deposed that the police collected two blood samples from the verandah of house of the Joginder Singh and one blood sample from the bathroom. From the bath room, hair were also collected by the police and one nose ring was also seized by the police. The hair were taken in a cloth. The blood was picked up with the cotton. The hair and blood samples were kept in a plastic container, which was sealed in a cloth parcel at the spot with seal impression Y. The police had also taken into possession a knife from the water tank which was kept in bathroom of Joginder Singh. It was also sealed in a parcel with seal impression Y. He identified the knife Ext. P9, which was sealed in parcel, Ext. P8 and was taken into possession by the police through recovery memo Ext. PW2/C. Paper, Ext. P10 was also taken into possession in his presence by the police vide recovery memo Ext. It was also sealed in a parcel with seal impression Y. He identified the knife Ext. P9, which was sealed in parcel, Ext. P8 and was taken into possession by the police through recovery memo Ext. PW2/C. Paper, Ext. P10 was also taken into possession in his presence by the police vide recovery memo Ext. PW2/D. In cross-examination, he testified that no finger prints were taken from the knife in his presence. He could not say that prior to arrival on the spot the police had picked up the paper Ext. P10 from the spot. He volunteered that it was picked up in his presence. According to him, the police had visited the bathroom in his presence and prior to his reaching the spot, the police had already visited other rooms. He did not know whether the persons who entered the room had given their personal search to any other person. 14. PW9, Madan Singh, has testified that on 9.9.2011 he met Purshotam Singh and they went to Police Station, Nurpur. The appellant had given disclosure statement before him and Purshotam Singh. The police was also present there. The appellant told that he had concealed his clothes and Chunni which he could get recovered. Memo Ext.PW9/A was prepared to this effect, which bears his signatures and that of Purshotam Singh and the appellant also. Thereafter, the appellant led the police to his house. They went inside the second room of his house. A baniyan, white in colour Ext.P12, a T-shirt sky blue in colour Ext.P13 and a Pajama, Ext.P14, were got recovered by the appellant. These clothes were sealed in a parcel with seal impression J. Thereafter, the appellant led them to the bathroom of the prosecutrix from where he got recovered a Chunni Ext.P15, which was sealed in a parcel with seal impression J. In cross-examination, he admitted that a news item was published in the newspapers on 9.9.2011 regarding the occurrence and the photograph of the appellant was also published. He also admitted that the appellant was in police custody since 8.9.2011. He did not know that the appellant was interrogated by the police on the intervening night of 8/9.9.2011. He did not know that the police had tortured the appellant and burnt his private parts. 15. PW10, Subhash Singh Mankotia, deposed that the appellant had given disclosure statement in his presence and Sudhir Singh. He did not know that the appellant was interrogated by the police on the intervening night of 8/9.9.2011. He did not know that the police had tortured the appellant and burnt his private parts. 15. PW10, Subhash Singh Mankotia, deposed that the appellant had given disclosure statement in his presence and Sudhir Singh. The appellant disclosed that he had concealed two gold ear rings which only he could get recovered. The statement, Ext.PW10/A bears his signature and that of Sudhir Singh and the appellant. The appellant led the police to the place near his house where he had concealed the gold ear rings under a stone in the bushes. Chanderkanta, sister-in-law of the prosecutrix had identified those ear rings. 16. PW11, Dr. Avinash Kumar, Incharge, Sukh Sadan Hospital, Pathankot, deposed that on 7.9.2011 the prosecutrix was admitted in Sukh Sadan Hospital as emergency case of cut throat injury with alleged history of injury caused by sharp edged weapon by known person at her home. He noticed following injury on her person:- "Cut throat injury over anterior aspect of the neck with complete transection of the trachea along with strap muscle and part of the thyroid and external jugular vein on the left side. I declared the said injury as dangerous to her life." He issued MLC, Ext.PW11/A. The injury was possible by blow of knife, Ext.P9. On 7.9.2011, at about 5.30 P.M., he had sent information to the police regarding the case vide Ext. PW11/B, which bears his signatures. On 7.9.2011, the police had given application to him to ascertain whether the prosecutrix was fit to give statement and she could have died due to alleged blow of sharp edged weapon. He had given his opinion on the same application, Ext.PW11/C that without giving adequate treatment, the patient could have died. On 8.9.2011, the police had again moved an application, Ext. PW11/D to ascertain whether the prosecutrix was fit to give her statement. He gave his opinion on the same opinion that she could not speak, but could write. The police had again moved an application on 12.9.2011, Ext.PW1/E to ascertain whether the prosecution was fit to give statement. He had again given opinion on application, Ext. PW1/E that the prosecutrix was unable to speak because of tracheotomy, but she could see, hear and write, hence, she was fit to give statement by writing. The police had again moved an application on 12.9.2011, Ext.PW1/E to ascertain whether the prosecution was fit to give statement. He had again given opinion on application, Ext. PW1/E that the prosecutrix was unable to speak because of tracheotomy, but she could see, hear and write, hence, she was fit to give statement by writing. In cross-examination, he deposed that when the prosecutrix was admitted in the hospital, she was not fit to give her statement. He has admitted that the prosecutrix did not tell him who had assaulted her. After operation, when she regained consciousness, he asked her whether she knew the person, who had assaulted her. The prosecutrix nodded her head in affirmative and as such, he wrote in his report that the prosecutrix knew the person who had assaulted her. The prosecutrix did not tell the name of the assailant. He deposed that no statement by writing was given by the prosecutrix in his presence neither he certified such statement. 17. PW12, HC Vinod Kumar, deposed that on 7.9.2011 ASI Ajeet Kumar deposited a parcel containing a plastic container (Dibbi) in which blood stained nose ring was there and a parcel containing a knife to him. The parcels were sealed with seal impression "Y". On 9.9.2011, ASI Ajeet Kumar deposited a parcel sealed with seal impression J containing Tshirt, Baniyan and Pajama and another parcel containing Dupatta sealed with seal impression J to him. He further deposed that ASI Ajeet Kumar had also deposited a parcel containing the blood sample of prosecutrix to him which was sent through Constable Maninder Singh for depositing to RFSL Dharamshala vide R.C. No.204/11 dated 21.9.2011. In cross-examination, he admitted that there is no reference in original Malkhana Register regarding sending the parcels to RFSL Dharamshala after 19 days. 18. PW13, Constable Maninder Singh, deposed that on 8.9.2011 MHC Vinod Kumar, P.S. Nurpur handed over him five parcels vide R.C. No.204/11 dated 21.9.2011 along with seals for depositing the same in RFSL Dharamshala and on the same day, he deposited the case property in RFSL Dharamshala. 19. PW14, ASI Ram Nath, Incharge, Police Post, Kotla District Kangra, H.P.testified that on 7.9.2011, statement under Section 154 Cr.P.C., Ext.PW2/A was received in the Police Station through Constable Maninder Singh, on the basis of which FIR Ext. PW14/A was registered. 20. 19. PW14, ASI Ram Nath, Incharge, Police Post, Kotla District Kangra, H.P.testified that on 7.9.2011, statement under Section 154 Cr.P.C., Ext.PW2/A was received in the Police Station through Constable Maninder Singh, on the basis of which FIR Ext. PW14/A was registered. 20. PW15, H.C. Vipin Kumar, I.O. Police Station, Fatehpur, deposed that he had given an application Ext.PW11/D to Medical Officer Sukh Sadan Hospital, Pathankot on the direction of ASI Ajeet Kumar to take opinion whether the prosecutrix was fit to give her statement. The doctor had given his opinion that the prosecutrix could not speak, but could write. According to him, the prosecutrix made a statement in writing on paper, Ext. PW3/A. Thereafter, he handed over the statement to ASI Ajeet Kumar in Police Station Nurpur. 21. PW16, SHO Brij Mohan, testified that he had recorded the statements of Constable Maninder Singh and MHC Vinod Kumar on 23.11.2011 and after completion of the investigation, prepared the challan on 24.11.2011. In cross-examination, he admitted that a news item was published in daily newspaper, i.e. Punjab Kesari on 9.9.2011 after arrest of the appellant. He also admitted that the photograph of the appellant was also published in the newspaper, which was taken in the police station and two police officials stood either side of the appellant. 22. PW17, HC Som Raj, deposed that Rapat No. 13 was entered in the daily diary, Ext.PW17/A at 5.05 P.M, which is correct as per the original. He has also proved copies of Rapat No.5, Ext. PW17/B and Rapat No.20, Ext.PW17/C. He admitted that in Rapat No. PW17/A names of the persons have not been mentioned and it has been mentioned therein that unknown persons had seriously injured the prosecutrix, who was taken to Sukh Sadan Hospital, Pathankot. 23. PW18, Col. (Dr.) Rajender Kumar, Military Hospital, Pathankot, proved applications Ext. PW18/A and Ext. PW18/B received from the police to take blood samples of the prosecutrix and opinion whether she was fit to give statement. According to him, blood sample of the prosecutrix was drawn, sealed with sample seals and was handed over to the police. He had also issued report Ext. PW18/C in this regard. 24. PW19, Chanderkanta, deposed that the prosecutrix is her sister-in-law. According to her, the appellant led the police to the place in village Kuttan where he had concealed the ear rings. He had also issued report Ext. PW18/C in this regard. 24. PW19, Chanderkanta, deposed that the prosecutrix is her sister-in-law. According to her, the appellant led the police to the place in village Kuttan where he had concealed the ear rings. She identified the ear rings to be of the prosecutrix. The memo Ext. PW10/B was prepared to this effect, which bear her signature, Subhash Singh and Sudhir Singh, who also signed as witnesses. 25. PW20, ASI Ajeet Singh, Investigating Officer, deposed that on 7.9.2011 at about 5.05 P.M., Joginder Singh came at Police Post Kandhwal and told that his daughter-in-law was injured by some unknown persons and she was being taken to Sukh Sadan Hospital, Pathankot. He also visited Sukh Sadan Hospital, Pathankot along H.C. Bipin. The Medical Officer declared the prosecutrix unfit to give statement. He went to the spot at place Kutan. Videography and photography of the spot was got done. Photographs, Ext. PW20/A-1 to Ext. PW20/A-22 were taken at the spot. Blood stains were collected through cotton swabs. Recovery memo Ext. PW2/B was prepared in the presence of Rashpal Singh and Joginder Singh. Sample seal was taken on a separate piece of cloth, Ext. PW20/B. The hair Ext.P3, nose ring Ext. P4, cotton swab of blood Ext. P5 to Ext.P7 were kept in plastic container (Dibba) Ext.P2 and sealed in parcel Ext. P1. According to him, on 7.9.2011, knife, Ext.P9, was found in a plastic water tank. The photographs of the knife were taken. No finger prints or blood stains were found on the knife. The knife was sealed in a parcel with seal impression Y in the presence of Joginder Singh and Rashpal Singh. Recovery memo Ext. PW2/C was prepared. He had also taken into possession a piece of paper lying in verandah, Ext. P10 vide seizure memo Ext. PW2/D. Spot map, Ext. PW20/C was prepared. Bipin Kumar telephonically informed him that the prosecutrix had written on a paper that Jaral, Baba, s/o Bali and brother of Billu had cut her throat and attempted to rape with her. On 9.9.2011, the disclosure statement of the appellant Ext. PW9/A was recorded in the presence of Madan Singh and Purshottam that the appellant could get recovered his clothes and chunni of the prosecutrix from his house. Recovery memo, Ext. PW9/B was prepared to this effect. Sample seal was taken on a separate piece of cloth Ext. On 9.9.2011, the disclosure statement of the appellant Ext. PW9/A was recorded in the presence of Madan Singh and Purshottam that the appellant could get recovered his clothes and chunni of the prosecutrix from his house. Recovery memo, Ext. PW9/B was prepared to this effect. Sample seal was taken on a separate piece of cloth Ext. PW20/D. He identified Banyan, Ext. P12, T-shirt Ext. P13 and Pajama Ext. P14, which were sealed in Ext. P11. He also testified that the appellant made disclosure statement, Ext. PW10/A on the basis of which, recovery memo Ext. PW10/B was prepared. He also testified that he had moved an application Ext. PW11/E to the Medical Officer Sukh Sadan Hospital Pathankot whether the prosecutrix could give her statement, on which the Medical Officer opined that the prosecutrix could not speak, but could write. Naib Tehsildar gave a paper and pen to the prosecutrix, who gave her statement in writing, Ext. PW1/A. He handed over three photographs of different persons to Naib Tehsildar while going to Sukh Sadan Hospital. The prosecutrix identified the photograph of the appellant by making statement Ext. PW1/B and the photograph of the appellant was affixed over Ext. PW1/B. On 10.9.2011, the appellant was got medically examined in Civil Hospital, Nurpur, and sample of his hair was also obtained from the Medical Officer Civil Hospital, Nurpur. On 20.9.2011, an application, Ext. PW20/H was moved to Medical Officer, Military Hospital Pathankot to obtain blood sample of the prosecutrix, who had been shifted by her relatives from Sukh Sadan Hospital Pathankot to Military Hospital, Pathankot. Case property was sent to RFSL, Dharamshala and report Ext. PW20/J was procured. The CDs Ext. PW20/K and Ext. PW20K/L were prepared. The site plan Ext. PW20/N was prepared regarding the recovery of gold rings. He handed over the case file to the SHO for further investigation. In cross-examination, he admitted that in Rapat Ext. PW17/A it has been mentioned that some unknown person has seriously injured the prosecutrix, who had been taken to Sukh Sadan Hospital Pathankot. He also admitted that the villagers had told that the prosecutrix had not mentioned the name of the person, who had committed the crime on 7.9.2011. He also admitted that on 7.9.2011 he came to know that the prosecutrix could not speak, but write down. The appellant was arrested on 8.9.2011. He also admitted that the villagers had told that the prosecutrix had not mentioned the name of the person, who had committed the crime on 7.9.2011. He also admitted that on 7.9.2011 he came to know that the prosecutrix could not speak, but write down. The appellant was arrested on 8.9.2011. He admitted that the appellant was detained on 8.9.2011 to ascertain the identification of the assailant. He also admitted that no identification parade was conducted and the appellant was not kept in muffled face. He admitted that the photograph of the appellant was published in daily newspaper in Punjab Kesari on 9.9.2011. He admitted that he was also standing by the side of the appellant in photograph published in the newspaper. He admitted that the accused remained in police remand up to 19.9.2011. He admitted that complaint was made by Anita, wife of the appellant to the higher officers and also to the Court. He did not know that on 23.9.2011 the appellant was medically examined and Dr. Ashutosh Joshi found injuries on the private parts of the appellant. He admitted that the prosecutrix was hospitalized since 7.9.2011 and her statement was got recorded on 12.9.2011 by Naib Tehsildar. He admitted that there is no mention of word sharp edged weapon in the statement of the prosecutrix. 26. Statement of the appellant was recorded under Section 313 Cr.P.C. The appellant also led evidence in his defence. 27. DW1, Dr. Ashutosh Joshi, Medical Officer, Civil Hospital, Nurpur, District Kangra deposed that he examined the appellant on 23.9.2011 and noticed following injuries on his person: "1. Non healing deep wound on the ventral aspect of the penis. Penile ulcer shows dark brown scab and slough, size 3 cm x 2 cm. 2. Non healing deep wound on the medial aspect of the left thigh, size 8cm x 3 cm, rectangular in shape, dark brown scab and slough present." According to him, duration of the injuries was approximately 15-20 days and were possible due to burns. He had also issued MLC, Ext. DW1/A. In cross-examination, he admitted that the accused was examined on 8.9.2011 by Dr. Mukesh Bhardwaj. He also admitted that the appellant was examined on 10.9.2011, 12.9.2011, 15.9.2011 and 18.9.2011. He had admitted that the injuries mentioned in Ext. DW1/A were not fresh injuries. According to him, there was alleged history of the injuries being caused due to burning charcoal. DW1/A. In cross-examination, he admitted that the accused was examined on 8.9.2011 by Dr. Mukesh Bhardwaj. He also admitted that the appellant was examined on 10.9.2011, 12.9.2011, 15.9.2011 and 18.9.2011. He had admitted that the injuries mentioned in Ext. DW1/A were not fresh injuries. According to him, there was alleged history of the injuries being caused due to burning charcoal. 28. DW2, Anita Devi, wife of the appellant, deposed that on 20.9.2011 she had gone to Sub Jail, Nurpur to see her husband and found that he was crying pain. The appellant told her that the police had tortured him by burning his private parts with charcoal. She had given an application to S.P. Dharamshala to this effect and an FIR, Ext. PW2/A, was registered. 29. Now, the court will advert to whether the appellant has been properly identified by the prosecutrix, PW3. PW1, Subhash Chand in examination in chief deposed that he visited Sukh Sadan Hospital at Pathankot on the direction of S.D.M. Nurpur, on 12.9.2011. According to him, the prosecutrix was not able to speak, but she was able to write. He handed over blank paper to the prosecutrix. She had given her statement in writing on the papers vide Ext. PW1/A, which was attested by him. The prosecutrix had told him that she had given her statement voluntarily and without any pressure. She was shown three photographs and she pointed out towards one photograph. He had verified the photograph with statement, Ext.PW1/B. He also prepared report Ext. PW1/C. He also proved application which was moved before the SDM, Nurpur, Ext.PW2/D. In cross-examination, he admitted that he along with ASI Ajeet Singh visited the Hospital on 12.9.2011 at about 5.00 P.M.. He admitted that the photo Ext.PW1/B was given to him by ASI Ajeet Singh and the same was shown by him to the prosecutrix. He also admitted that the photograph, Ext. PW1/B was handed over to him by ASI Ajeet Singh in the presence of the prosecutrix. He also admitted that two other photographs shown to the prosecutrix had not been shown to him at the time of recording of the statement in the Court. 30. According to statement of the prosecutrix, PW1/A, dated 12.9.2011, the prosecutrix was washing her clothes in the bath room. Baba came from behind and throttled her throat and thereafter tried to outrage her modesty. She resisted for a considerable time. 30. According to statement of the prosecutrix, PW1/A, dated 12.9.2011, the prosecutrix was washing her clothes in the bath room. Baba came from behind and throttled her throat and thereafter tried to outrage her modesty. She resisted for a considerable time. He pulled her hair and banged her head against the wall. She told him that she had recognised him and he could not escape. Thereafter, he cut her throat. She did not know how many persons were accompanying him. She remained lying in the bath room for a considerable time. When she regained consciousness, she crawled towards verandah and pulled bed sheet from the bench and telephoned her husband, but she could not talk to him. Her mother-in-law and father-in-law were not at home as they had gone out. Thereafter, her son and daughter came from school and saw her. They asked her what happened to her. She asked them by way of gestures to give her copy and pencil. The children supplied her copy and pencil. She wrote on the paper and told them to call Kalu uncle. Her son went there, but mother of Kalu came on the spot. After some time, her mother-in-law and father-in-law also came at the spot, who took her to Hospital. She did not know what was stolen from the house. She was only aware of the fact that the ornaments from her nose and ear were missing. According to PW1/C dated 12.9.2011, report submitted by PW1 Naib Tehsildar, when he reached at Sukh Sadan Hospital, the prosecutrix told him that she could not speak. Then he asked her whether she could write. She told him that she could give her statement in writing. She was handed over paper and pencil. He also enquired whether she was under any undue pressure or not. She replied in negative. Thereafter, she started writing her statement. The statement was written in his presence. She was shown three photographs and she recognised the appellant from one of the photographs. Thereafter, the photograph was pasted on white paper. The entire proceedings were recorded between 5.45 to 6.20 P.M. PW2, Joginder Singh is father-inlaw of the prosecutrix. According to him, when they reached in the courtyard of the house, they found their daughter-in-law (prosecutrix) lying there. Blood was oozing out of wound, which she sustained on throat. People had gathered there. Thereafter, the photograph was pasted on white paper. The entire proceedings were recorded between 5.45 to 6.20 P.M. PW2, Joginder Singh is father-inlaw of the prosecutrix. According to him, when they reached in the courtyard of the house, they found their daughter-in-law (prosecutrix) lying there. Blood was oozing out of wound, which she sustained on throat. People had gathered there. They took the prosecutrix to Sukh Sadan Hospital, Pathankot and also informed the police about the occurrence on the way. Police visited the hospital. Thereafter, they came back to their house with police. He did not know at that time about the person who had committed such offence. In cross-examination, he admitted that in his statement Ext. PW2/A recorded under Section 154 Cr.P.C. he had stated that some unidentified persons had committed the offence. He also admitted that when he reached home, the prosecution was able to see, understand and write, she intended to express. He also admitted that when he reached home, the prosecutrix already wrote on the paper "TAU KO PHONE KARO" after procuring pencil from his grand son. He also deposed that while taking the prosecutrix to Hospital, they firstly reached at Police Post Kandhwal. He had told the police that some unidentified persons had committed the offence. PW3 is prosecutrix, whose statement is most crucial to this effect. According to her when her son and daughter came from school, they had asked her about the injury suffered by her. She could not speak, therefore, through gestures, she asked for pen/pencil and paper. They gave her paper and pencil. She wrote on the paper "TAU KO PHONE KARO". She recognised paper Ext. P10. Her children were not having telephone number of their TAU (uncle). Thereafter, she wrote the word KALU on the same. Mother of the Kalu came at the spot. She remained in Hospital w.e.f. 7.9.2011 to 17.9.2011. She had given statement to Naib Tehsildar, Nurpur, vide Ext.PW1/A. She also admitted that three photographs of different persons were shown to her by Naib Tehsildar. She identified the photograph of the appellant Ext.PW1/B. The document, Ext.PW3/A was also written by her in the hospital, which was given to the police by her family members. She had given statement to Naib Tehsildar, Nurpur, vide Ext.PW1/A. She also admitted that three photographs of different persons were shown to her by Naib Tehsildar. She identified the photograph of the appellant Ext.PW1/B. The document, Ext.PW3/A was also written by her in the hospital, which was given to the police by her family members. In her cross-examination, she categorically admitted that on 7.9.2011 she was able to see, hear and understand the things, but due to injury on her throat, she could not speak, though she could write. She admitted that her children had asked her after seeing the blood coming out from her throat, who had caused the injury to her. Neither her mother-in-law nor her father-in-law asked anything from her. She was taken to Hospital and on the way, her father-in-law had informed the Police at Police Post about the incident, but he had not told ASI Ajeet Singh, who had committed the offence. She also admitted that after arrest of the accused, photograph of the appellant was published in the newspaper. According to her, she had mentioned the name of the appellant in her statement before the Naib Tehsildar. She had admitted that she had not told this fact to her children and the villagers on 7.9.2011 that the appellant had entered into her bath room and tried to commit rape on her. She had also admitted that brother of the appellant Dinesh was also apprehended by the police. 31. According to Ext. PW3/A, Bilus younger brother, Baba, son of Bali, (appellant) was on the spot. Baba cut her throat. She had seen only one person. He had also tried to commit rape on her. However, she resisted the attempt. He gave injury on her throat. He thought that she had died, however she was alive. PW4, Santokh Singh deposed that she saw the appellant walking on the path. He asked the appellant from where he had come, but he did not reply. The appellant was perplexed. In cross-examination, he admitted that his statement was recorded on 12.11.2011 in Police Post Kandhwal. He was called by the police. He also admitted that he is driver of van and used to meet police frequently. PW6, Nirmala Devi, has deposed that she went to the house of the prosecutrix and found her lying in the verandah. She was lying in pool of blood. He was called by the police. He also admitted that he is driver of van and used to meet police frequently. PW6, Nirmala Devi, has deposed that she went to the house of the prosecutrix and found her lying in the verandah. She was lying in pool of blood. In cross-examination, she deposed that she did not remember whether she had given statement to the police that the prosecutrix was not in a position to speak. She also admitted that the prosecutrix was her relative. She also admitted that news item regarding the occurrence had come in the newspaper on 9.9.2011. She also admitted that the appellant, his brother, Shiv Raj, Suresh and Rajesh were apprehended by the police on suspicion in the case. PW7, Master Arush, son of the prosecutrix, has deposed that when he and his sister reached at their house from the school, he saw her mother lying in the verandah in pool of blood. She was making some gestures. He supplied her paper and pencil. She wrote on the paper "TAU KO PHONE KARO". He was not having telephone number of his TAU. Then he asked his mother about his telephone number and she said no through gesture. Thereafter, he went to the house of Kalu and found his mother there and told her that his mother had suffered injury on her throat and blood is oozing out of the wound. In crossexamination, he admitted that he had told to mother of Kalu that somebody had inflicted injury on the throat of his mother. 32. It is evident from the statement of the prosecutrix, that on 7.9.2011 she was able to see, hear and understand and even she could write. Her children had asked her after seeing the blood coming out from her throat, who had caused injury to her. She had not disclosed the name of the appellant. She had written on the paper supplied by her son, the words "TAU KO PHONE KARO". If she could write the aforesaid words, she could also have written the name of the appellant on the paper. Her mother-in-law and father-in-law had also reached the spot, but surprisingly, they had also not asked about the appellant from her nor did prosecutrix disclose the name of the appellant to them. In a normal course, they were supposed to inquire from their daughter-in-law (prosecutrix), who had inflicted injury to her. Her mother-in-law and father-in-law had also reached the spot, but surprisingly, they had also not asked about the appellant from her nor did prosecutrix disclose the name of the appellant to them. In a normal course, they were supposed to inquire from their daughter-in-law (prosecutrix), who had inflicted injury to her. The prosecutrix was taken to the hospital by PW2, Joginder Singh, her father-in-law. When PW2 came back from Hospital, his statement, Ext.PW2/A was recorded. He had not disclosed in his statement name of the appellant. Rather in Ext.PW2/A, he mentioned that some unidentified persons had committed the offence. The prosecutrix could disclose the name of the appellant firstly to her children, then villagers and thereafter to her in-laws. She had disclosed the name of the appellant vide Ext. PW3/A, to the effect Baba had cut her throat and he tried to rape her. In her statement, recorded vide Ext.PW1/A before the Naib Tehsildar, she disclosed the name of the appellant and stated that Baba firstly tried to gag her mouth with cloth and tried to rape her. She resisted. She had categorically stated in the statement that she told the appellant that she had recognised him and now he could not escape. She did not know how many persons accompanying him. According to Ext.P10, she has written "TAU KO PHONE KARO" on paper. However, when she gave her statement in writing vide Ext. PW1/A, she has not stated about this paper. When she knew the name of the appellant as per Ext. PW3/A and Ext. PW1/A, it is very intriguing to note that she had not disclosed name of the appellant to the police, her children, her in-laws and PW6 Nirmala Devi. She had been shown three photographs by the Naib Tehsildar. She had recognised the appellant on the basis of Ext. PW1/B. PW1 has also admitted that he had shown three photographs to the prosecutrix. However, at the time of recording of his statement, two photographs which were shown to the prosecutrix with Ext. PW1/B were not shown to him. These two photographs are also not on record. It has also come on record that the photograph of the accused had already appeared in the newspaper Punjab Kesari on 9.9.2011. The conduct of the prosecutrix not disclosing the name of the appellant immediately casts doubt on the identification of the appellant. PW1/B were not shown to him. These two photographs are also not on record. It has also come on record that the photograph of the accused had already appeared in the newspaper Punjab Kesari on 9.9.2011. The conduct of the prosecutrix not disclosing the name of the appellant immediately casts doubt on the identification of the appellant. Her first reaction would have been to disclose the name of the appellant, whom she knew as per Ext.PW1/A and Ext.PW3/A. Her father-in-law had also not inquired the name of the appellant from her nor identity of the appellant was disclosed to the police when the incident was reported by him at the Police Post Kandhwal. The court is not oblivious of the fact that she could see, hear, understand and even she could write the name of the appellant on the paper and pencil supplied to her by her son on 7.9.2011 when she in her senses wrote the words "TAU KO PHONE KARO". She had also admitted in her statement that she had mentioned the name of the appellant in her statement before the Naib Tehsildar. She had not disclosed the same to her children and villagers on 7.9.2011 that the appellant had tried to commit rape on her and then cut her throat. Statement of PW4, Santokh Singh, does not inspire confidence to the effect that he saw the appellant walking on the path and he was looking perplexed, as his statement was recorded on 12.11.2011 in Police Station. He admitted that he knew many police officials being driver of the van. PW5, Jaspal Singh, in his cross-examination has admitted that he did not know whether doctor had put his signatures on Ext.PW3/A. According to him, no certificate was issued by the Doctor in the presence to the effect that the prosecutrix could not speak. Ext.PW3/A was signed by him as a witness. The prosecution has not taken the prosecutrix to Government Hospital to prepare MLC. Even in Ext. PW11/A the time mentioned is 2.30 P.M. and there was overwriting. Figure 2.30 has been converted to 1.30 by overwriting. According to the prosecution, the incident has happened on 1.30 P.M.. According to the prosecution, she was taken to the Hospital at 5.30 P.M. In case injury as reflected in Ext.PW11/A had been caused to PW3, she would have bled to death. Since according to PW11 Dr. Figure 2.30 has been converted to 1.30 by overwriting. According to the prosecution, the incident has happened on 1.30 P.M.. According to the prosecution, she was taken to the Hospital at 5.30 P.M. In case injury as reflected in Ext.PW11/A had been caused to PW3, she would have bled to death. Since according to PW11 Dr. Avinash Kumar, there was throat injury over anterior aspect of the neck with complete transection of the trachea along with strap muscle and part of the thyroid and external jugular vein on the left side. PW20, ASI Ajeet Kumar, Investigating Officer also categorically deposed in his examination in chief that on 7.9.2011 at about 5.05 P.M., when he was present in the police Post Kandwal, PW2 Joginder Singh came there and told that his daughter in law was injured by some unknown persons and she was taken to Sukh Sadan Hospital. At this stage also, Joginder Singh could have enquired from his daughter in law about the name of the assailant, since she was in a position to write. PW16, SHO Brij Mohan had also admitted in his cross-examination that a news item was published in daily newspaper Punjab Kesari on 9.9.2011 after arrest of the appellant. The photo of the appellant was also published in the newspaper, who was with the police. The photograph which was published in the newspaper was taken in the police station and two police officials stood either side of the appellant. It was taken on 8.9.2011. The appellant was also arrested on 8.9.2011. Therefore, it can be safely inferred that the identity of the appellant has not been proved. 33. Now, coming to the manner in which the recoveries were effected by the police officials in this case. According to PW2 Joginder Singh, knife Ext.P9 was recovered vide recovery memo Ext.PW2/C and paper, Ext.P10 was recovered vide recovery memo, Ext. PW2/D. PW8, Rashpal Singh has deposed that he was associated by the police in the investigation. The police collected two blood samples from the verandah of the house of prosecutrix and one blood sample from the bathroom. He signed recovery memo Ext.PW2/B. The police according to him took into possession a knife from the water tank which was kept in bathroom of Joginder Singh. The police collected two blood samples from the verandah of the house of prosecutrix and one blood sample from the bathroom. He signed recovery memo Ext.PW2/B. The police according to him took into possession a knife from the water tank which was kept in bathroom of Joginder Singh. The knife was also sealed in his presence in a parcel with seal impression Y. Paper, Ext.P10, was also taken into possession in his presence by the police vide recovery memo Ext.PW2/D. He signed the same. Ext.P10 was picked up from verandah. He did not known prior to his reaching the spot that the police had picked up the paper, Ex.P10 from the spot. According to him, the police had gone to bathroom in his presence and prior to his reaching the spot, the police had gone to other rooms. PW9, Madan Singh, testified that the appellant told that he had concealed his clothes and Chuuni, which he could get recovered. The same were recovered vide Ext.PW9/A, which bears his signature along with Purshotam Singh and the appellant. Thereafter, the appellant got recovered Baniyan,Ext.P12, T-shirt, Ext.P13 and Pajama Ext.P14 vide recovery memo Ext. P9/B. He also admitted that a news item was published in the newspaper on 9.9.2011 regarding the occurrence and the photograph of the appellant was also published. He also admitted that the appellant remained in policy custody since 8.9.2011. According to PW20, ASI Ajeet Kumar, the photograph of the knife was taken, but no finger prints or blood stains were found on the said knife. The knife was taken into possession vide recovery memo Ext.PW2/C. It was signed by PW8 Rashpal Singh and PW2 Joginder Singh. The knife had been taken into possession from the water tank in the bath room of Joginder Singh. ASI Ajeet Singh admitted that there is no mention of the word sharp edged weapon in the statement of the prosecutrix. In Ext.PW1/A, the prosecutrix had stated that the appellant had cut her throat. There is no mention of knife in Ext.PW3/A and Ext.PW1/A. According to PW20/J some traces of blood were found on the knife, but these were insufficient for further examination, whereas as per PW20 ASI Ajeet Singh, Investigating Officer, examination in chief, no finger prints or blood stains were found on the knife. There is no mention of knife in Ext.PW3/A and Ext.PW1/A. According to PW20/J some traces of blood were found on the knife, but these were insufficient for further examination, whereas as per PW20 ASI Ajeet Singh, Investigating Officer, examination in chief, no finger prints or blood stains were found on the knife. It is not possible that the appellant would have thrown the knife in the water tank and his normal conduct would have been to conceal the weapon of offence away from the scene of occurrence. According to PW2 and PW10, Ext.P10 was recovered by the police. In Ext.P10, words TAU KO PHONE KARO has been written. It is surprising that how the paper remained lying on the scene of occurrence after a lot of commotion in the house. Paper Ext.P10 had not been handed over by PW3 to the police. PW8 Rashpal Singh deposed that the paper, Ext.P10 was already with the police when he reached at the spot and it was picked up from the verandah. PW9 has deposed that the appellant had given disclosure statement before him and Purshotam Singh vide Ext.PW9/A, on the basis of which clothes of the appellant were recovered vide Ext. PW9/B. The disclosure statement, Ext.PW9/A is dated 9.9.2011 and the recovery memo, Ext.PW9/B is also dated 9.9.2011. Recovery memo, Ext.PW9/C, on the basis of which Chunni/Duptta was recovered, is also dated 9.9.2011. Ext.PW10/A disclosure statement made by the appellant is dated 10.9.2011, however, in the recovery memo Ext.PW10/B there is overwriting and it is apparent that figure 19 has been converted to 10 . In other words, the date has been changed from 19.9.2011 to 10.9.2011. It has come in the statement of PW9 and PW10 that the accused was in the police custody on 8.9.2011. The disclosure statements, Ext.PW9/A and Ext.PW10/A have been recorded when he was in the custody of the police. It has come in the statement of DW2, Anita, wife of the appellant, that her husband was tortured by the police and an FIR was also registered against the few police officials vide Ext. DW2/A. DW1, Dr. Ashutosh Joshi, deposed that on 23.9.2011, he examined the appellant. On Examination he found the following injuries on his person: "1. Non healing deep wound on the ventral aspect of the penis. Penile ulcer shows dark brown scab and slough, size 3 cm x 2 cm. 2. DW2/A. DW1, Dr. Ashutosh Joshi, deposed that on 23.9.2011, he examined the appellant. On Examination he found the following injuries on his person: "1. Non healing deep wound on the ventral aspect of the penis. Penile ulcer shows dark brown scab and slough, size 3 cm x 2 cm. 2. Non healing deep wound on the medial aspect of the left thigh, size 8cm x 3 cm, rectangular in shape, dark brown scab and slough present." According to him, injuries No. 1 and 2 were simple in nature and the duration of the injuries was approximately 15-20 days. According to him, the injuries were possible due to burns. He issued MLC Ext.DW1/A. As per MLC Register the appellant was examined in Civil Hospital Nurpur on 8.9.2011 by Dr. Mukesh Bhardwaj. No injury has been mentioned in the MLC. He admitted that as per record, on 10.9.2011, 12.9.2011, 15.9.2011 and 18.9.2011 the appellant was examined. No injuries have been mentioned in the MLCs issued on the said dates. He also admitted that the injuries mentioned in Ext. DW1/A were not fresh. According to him, there was an alleged history of the injuries being caused due to burning of charcoal. He was not told by the appellant who had caused these injuries. According to the appellant, he was tortured by the police and his private parts were burnt. The appellant was examined by DW1 23.9.2011. As noticed above, there was non-healing deep wound on ventral aspect of the penis of the appellant and penile ulcer showed dark brown scab and slough. There was also a non-healing deep wound on the medial aspect of the left thigh, with size 8 cm x 3 cm, rectangular in shape, dark brown scab and slough were also present. He admitted that the injuries could be caused due to burns. According to him, duration of the injuries suffered by the appellant was between 15 to 20 days. The appellant was in the custody of the police w.e.f 8.9.2011. It is thus evident that the appellant was tortured by the police during his custody which resulted into injuries to his private parts, as noticed hereinabove. The date of medical examination of the appellant by DW1 is 23.9.2011. Duration of injuries inflicted to the private parts of the appellant is between 15 to 20 days. The injuries suffered by the appellant correspond to his date of arrest, i.e. 8.9.2011. The date of medical examination of the appellant by DW1 is 23.9.2011. Duration of injuries inflicted to the private parts of the appellant is between 15 to 20 days. The injuries suffered by the appellant correspond to his date of arrest, i.e. 8.9.2011. There is merit in the contention of Mr. Vinay Thakur that the appellant was subjected to custodial torture, which resulted into burn injures to his private parts. This kind of investigation is not permissible under the law. Since the injuries would relate back to 8/9.9.2011, the disclosure statements made by the appellant vide Ext.PW9/A dated 9.9.2011 and Ext.PW10/A, dated 10.9.2011 vide which recoveries were effected vide recovery memo, Ext.PW9/B 9.9.2011, Ext.PW9/C, dated 9.9.2011 and PW10/B, dated 10.9.2011, have been obtained by the police after torturing the appellant by burning his private parts. These disclosure statements and recoveries effected are not admissible. It has also not come in Ext.PW2/C vide which knife, Ext.P9 was recovered, who had disclosed this fact that the knife was lying in water tank. The knife, Ext.P9 could be recovered if somebody had brought to the notice of the police that the same was lying in the water tank. 34. According to the prosecutrix, PW3, she has received various injuries on her body while resisting the attempt of rape made by the appellant. However, in MLC, Ext.PW11/A no injury was found on the person of the prosecutrix except throat injury. This casts further doubt on the version of the prosecutrix, PW3. According to her, her head was repeatedly banged by the appellant against the wall by pulling her hair. In case her head was banged by the appellant on the wall repeatedly, it would have resulted in severe injuries on her head. 35. PW11 has not given probable duration of injury in Ext.PW11/A dated 28.9.2011. The SHO moved an application to the Medical Officer, Sukh Sadan Hospital on 25.11.2011 seeking his opinion about the probable duration of injury and Medical Officer gave his opinion on the same application, which was marked as A. As per opinion, probable duration of injury was within few hours. The probable duration of the injury should have been mentioned in Ext.PW11/A at the first instance. It has not been explained by the prosecution why this information has been taken after a considerable delay. 36. The probable duration of the injury should have been mentioned in Ext.PW11/A at the first instance. It has not been explained by the prosecution why this information has been taken after a considerable delay. 36. Now, on the basis of appraisal of the evidence, what finally emerges is that even in the Rapat PW17/A Rapat Rojnamcha dated 7.9.2011 what is stated therein is that the injury was caused by some unknown person. Even in FIR, Ext.PW14/A, the name of the accused had not been stated. PW2 and the prosecutrix are the material witnesses, who could disclose the name of the appellant. She did not disclose the name of the appellant to her children, PW6 Nirmla Devi, villagers. She even did not disclose the name of the appellant to her father-in-law and mother-in-law. The incident took place on 7.9.2011. She disclosed the name of the appellant only after he was arrested, on 12.9.2011. His photograph was already published in daily edition of Punjab Kesari on 9.9.2011. It has come on record that she could hear, see, and even write. She had asked for a pen and paper from her children. Thereafter she wrote on paper, Ext. P10 " TAU KO PHONE KARO". When she could write the aforesaid words on Ext.P10, then she could also write the name of the appellant. It has also come in the statement that the appellant, his brother Shiv Raj Suresh and Rajesh were apprehended by the police on suspicion in the case. PW3, the prosecutrix in her cross-examination also admitted that the brother of the accused was also apprehended by the police. Three photographs had been shown to the prosecutrix, but only one had been placed on record. Why other two photographs, shown to the prosecutrix have not been brought on record, has not been explained at all. It has also come in the statement of PW1 that the photographs were supplied to him by the PW20 Ajeet Kumar, who also admitted that the photographs of the appellant had appeared in the newspaper Punjab Kesari on 9.9.2011 and he was standing by the side of the appellant in that photograph. In the mean time the appellant was arrested on 8.9.2011. The Court has already discussed the evidence the manner in which the appellant was tortured by the police by burning his private parts. In the mean time the appellant was arrested on 8.9.2011. The Court has already discussed the evidence the manner in which the appellant was tortured by the police by burning his private parts. His disclosure statements were recorded on 9.9.2011 and 10.9.2011 when he was in police custody. It is thus amply proved that the appellant has been falsely implicated in the case and he has been tortured in the police custody to give disclosure statements on the basis of which recoveries were made. There are material improvements and contradictions made in the statements of the witnesses. Statement of PW3, prosecutrix does not inspire confidence the manner in which the incident has happened. PW6, Nirmala Devi is related to the prosecutrix. It has also come on record that the villagers had also assembled at the spot, but identity of the appellant was not disclosed to them. The prosecution has failed to prove the case against the appellant. 37. Accordingly, the appeal is allowed and the judgment of conviction and order of sentence dated 27.2.2013, under Sections 376, 511, 307, 394, 454 and 201 of the Indian Penal Code, are set aside. The appellant is acquitted of the charges framed against him. The fine amount, if any deposited by the appellant is ordered to be refunded to him. Since the appellant is in jail, he be released forthwith if not required in any other case. 38. The Registry is directed to prepare the release warrant of the appellant and send it to the Superintendent of the Jail concerned in conformity with this judgment forthwith.