JUDGMENT 1. - The appellants, being convicted variously under sections 363, 368 & 376 IPC and sentenced accordingly by the judgment and order dated 26.09.1990 passed by the learned Additional Sessions Judge, Dholpur in Sessions Case No.39/1987, 36/1988, 84/1988, are in appeal for redress. 2. A written report was lodged with the officer incharge, Sahab Badi Police Station by Jandel Singh on 14.07.1986 alleging that in the intervening night of 13/14.07.1986, when he was sleeping in his house at about 1.00 a.m., ten miscreants armed with guns trespassed into and stationed themselves on the rooftop of the building. Simultaneously, about eight miscreants entered the house and as he woke up and saw them, he ran up to the terrace where he was apprehended by the others present there, whereafter he was tied up hand and feet. The miscreants then snatched his wrist watch and a sum of Rs. 2,000/-, which was in his pocket. Having heard the hue and cry, his brother-in-law Bholaram, who was residing in a nearby house, came to his terrace, whereupon one of the miscreants fired upon him, as a result whereof, he received injuries on his right wrist and he fell on the floor. It was further alleged in the written report that the miscreants thereafter entered the house of the informant's uncle Rameshwar and by force lifted his (Rameshwar) daughter Guddi, aged about 12 years. The names of Ram Aktiyar, Panjab Singh, Ramnath, Dimana, Soneram, Bijendra, Atarsingh, Ramveer were mentioned, whom the informant claimed to have identified. It is further stated that the miscreants, in order to terrorise the people of the locality, also shot 8-10 times in the air from their firearms. 3. On the basis of the report, police registered a case and started investigation and on completion thereof, submitted a chargesheet under sections 147, 452, 363, 363/149, 366 & 376 IPC against the appellants and sixteen others. They having been separately charged, denied the allegation and claimed to be tried. At the trial, the prosecution examined several witnesses including the informant Jandel Singh (PW-1), prosecutrix Guddi (PW-2), Bholaram, her cousin brother (PW-3), Rameshwar, her father (PW-5), Harbheji, her mother (PW-4), Dr.N.S.Sareen (PW-6), who had medically examined the prosecutrix for determination of her age, and Dr.Bina Goyal (PW-9). The accused persons, in course of their examination under section 313 Cr.P.C., abided by their denial. The accused persons, in course of their examination under section 313 Cr.P.C., abided by their denial. The impugned judgment and order, however, recorded conviction against four of the appellants on the sections of law as referred to hereinabove. The others were all acquitted for want of evidence. 4. Before adverting to the rival arguments, it would be appropriate to notice the evidence in short. 5. PW-1 Jandel Singh, the informant, proved the written report Exhibit P-1. He repeated the version narrated in the FIR. He also alleged that he had been assaulted by the miscreants on the rooftop. He stated as well that the trespassers also looted many valuables from his house. He admitted that he could identify others, except those named in the written report. In the cross-examination, this witness admitted that at the time of the occurrence, all the miscreants were masked and that he did not know them from before. He stated that he mentioned the names in the FIR after ascertaining them from his uncle Rameshwar. He denied the suggestion that because of the darkness of the night, he could not identify any of the alleged trespassers. 6. PW-2, the prosecutrix, stated that in the night of the occurrence, the miscreants had entered the house of her uncle and had forcibly lifted her therefrom. She identified Ram Aktiyar, Panjab Singh, Jaindel Singh & Vishal to be involved in this act. She stated that in all there were about 12 miscreants. She deposed that thereafter she was kept at different jungles on an average of 3-5 days. According to her, Ramavatar was first, who committed rape on her against her will and that for the offending act, she bleeded from her vagina. She also implicated Panjab Singh and Jaindel Singh to have committed forcible sexual intercourse with her. She stated that though she mentioned that the others also did commit rape on her, she could not recollect their names. In her cross-examination, she admitted that she did not know any of the accused persons in the court before the incident. She however, stated that as she had to remain in their company for a few days she could from their conversations identify the persons, who molested her by names. She stated further that during the day time, her abductors used to blind fold her, for which she could not see their faces during day. She however, stated that as she had to remain in their company for a few days she could from their conversations identify the persons, who molested her by names. She stated further that during the day time, her abductors used to blind fold her, for which she could not see their faces during day. The fold however, as the witness did state, used to be removed during the night. 7. PW-3 Bholaram, in his examination-in-chief only stated that in the night of the occurrence, he heard some commotion in the house of Jaindel Singh and Ramswaroop and when he reached the rooftop of the house, somebody fired at him, which hit his right wrist. He did not narrate anything else. This witness was declared hostile by the prosecution. 8. PW-4 Harbheji, the mother of the prosecutrix, stated that while she alongwith her husband Rameshwar and her daughter prosecutrix was sleeping, in the night of the occurrence at about 1.30 p.m., some miscreants entered the room and after gagging the victim, forcibly lifted her and took her away. While mentioning that others were also then sleeping in the room, the witness mentioned that the miscreants did fire shots in the air. This witness too was declared hostile. 9. PW-5 Rameshwar, father of the victim, also stated in the same lines as PW-4 and was declared hostile. In his cross-examination, this witness however, stated that his daughter was recovered after 10-15 days of the occurrence and that when they met at the police station, neither he asked anything nor did his daughter disclose to him anything about the incident. 10. PW-6 Dr.N.S.Sareen examined the prosecutrix on 04.08.1986 and on assessment opined that at the relevant time, she was aged about 14-15 years. The doctor also mentioned of having found two blue marks, one of them being on the nose and three scars, in the lower portion of her spine and right leg. The doctor opined that all these injuries were simple in nature and might be caused by a blunt weapon. 11. PW-9 Dr.Bina Goyal, who similarly examined the prosecutrix on 04.08.1986, recorded that her hymen was ruptured, but her private parts did not disclose any fresh injury. The doctor also stated that the vaginal swab collected did not indicate the presence of any spermatozoa as well. 11. PW-9 Dr.Bina Goyal, who similarly examined the prosecutrix on 04.08.1986, recorded that her hymen was ruptured, but her private parts did not disclose any fresh injury. The doctor also stated that the vaginal swab collected did not indicate the presence of any spermatozoa as well. She however, opined that there was a possibility that the victim was subjected to sexual intercourse about 8-10 days before the date of her examination. 12. Mr.Gupta has urged that having regard to the time and setting of the alleged incident and in absence of any test identification parade, the identification of the appellants for the first time in court is clearly devoid of any probative value and thus, on that count alone, they (appellants) are liable to be acquitted. The learned counsel has further argued that the acquittal, for want of the evidence of all the co-accused of the appellants strikes at the root of the prosecution case and therefore, the impugned judgment and order is clearly untenable in law and on facts. According to Mr.Gupta, having regard to the fact that the incident alleged to have occurred has to be viewed as one composite whole, the acquittal of the co-accused of appellants raises serious doubt with regard to their (appellants) involvement therein and on that count as well, their conviction and sentence is liable to be set aside. The learned counsel has urged also that the medical evidence totally belies the charge of forcible sexual intercourse as having regard to the duration of her stay with the appellants and her allegation of repeated forcible molestation, there ought to have been telltale marks of injuries on her body. In support of his plea that identification for the first time in court is valueless unless there has been a previous identification parade, learned counsel has, inter alia, placed reliance on the decision of the Hon'ble Apex court in State (Delhi Administration v. V.C.Shukla & Anr. AIR 1980 SC 1382 . . 13. Per contra, Ms.Madnani has argued that as the victim had been kept confined by the appellants for a reasonably long period, it was expected that she could identify them by their features and names and thus, the defence based on lack of identification is clearly fallacious. According to the learned Public Prosecutor, the medical evidence corroborating the ocular testimony in all respects fortifies the testimony of the victim. According to the learned Public Prosecutor, the medical evidence corroborating the ocular testimony in all respects fortifies the testimony of the victim. The acquittal of the co-accused in the face of the recovery, amongst others, of empty cartridge and the victim from the custody of the appellants, is inconsequential and thus, no interference with the impugned judgment and order is called for. 14. It cannot be gainsaid that the manner in which the incident had been presented in the FIR suggests that many persons were involved therein. As alleged, it started with trespass and ended with the abduction of the prosecutrix. The persons, having regard to the number as mentioned in the FIR, if the allegations are correct, did indubitably form an unlawful assembly, who in course of their activities not only trespassed into the house of the informant, committed dacoity, injured Bholaram by firing at him, abducted Guddi, but also decamped with the booty. It is thus, not possible to segregate the complicity of the persons involved in the incident. In this perspective, the acquittal of the other accused persons tried alongwith the appellants is of a formidable impact. This is more so as the learned trial court did acquit them for want of evidence against them on the charge of unlawful assembly and house trespass. Noticeably the parents of the victim girl as well as her relative Rameshwar did turn hostile vis-a-vis the allegation of trespass and loot. 15. The incident, as alleged, did occur in the intervening night of 13/14.07.1986 and the victim was recovered on 04.08.1986 i.e. after three weeks, during which she allegedly had been in the captivity of the appellants. According to her, she had during that period been forcibly raped by the appellants Jaindel Singh and Panjab Singh and Ramavatar. She did not implicate the appellant Vishal in this act. Though according to her, others had also committed rape on her, she could not recollect their names. Having regard to her age as determined medically and the commission of the act by force as alleged, in the opinion of this court, the medical evidence ought to have disclosed severe injuries on her body and more particularly in her private parts. Though the prosecutrix did say that on the night previous to the date of her recovery, she had been similarly raped, no fresh injury was found on her private parts. Though the prosecutrix did say that on the night previous to the date of her recovery, she had been similarly raped, no fresh injury was found on her private parts. The medical report Exhibit P-7 also did indicate absence of spermatozoa in her vaginal swab. 16. On an overall consideration of the evidence on record and the conclusion of the learned trial court against the culpability of the co-accused of the appellant for want of evidence, this Court is of the view that the prosecution has failed to prove the charge of sections 363, 368 & 376 IPC as well against the appellants beyond all reasonable doubt.In this view of the matter, the appeal succeeds. The impugned judgment and order is set aside. The appellants are acquitted of the charges. They are thus, set at liberty. The bail bonds stand discharged. The office would remit the records. Appeal allowed. *******