JUDGMENT : Aditya Kumar Trivedi, J. Appellant, Ravi Shankar Yadav, who has been found guilty for an offence punishable under Section 366, IPC and sentenced to undergo RI for five years, under Section 376, IPC and sentenced RI for seven years with a further direction to run the sentences concurrently vide judgment of conviction dated 3.8.2013 and sentence dated 5.8.2013 passed by Additional Sessions Judge, 3rd East Champaran at Motihari in Sessions Trial No. 30 of 2013 has preferred instant appeal. 2. Devanti Devi (PW 16) filed complaint petition bearing No. 2785/2011 on 25.11.2011 alleging inter alia that on 15.11.2011, she along with her mother-in-law, Panapati Devi proceeded from her sasural along with her daughter aged about 1-1/2 years to Motihari for her treatment. As the evening had fallen, therefore, in stead of returning back to her sasural, she along with her mother-in-law proceeded to her naihar lying at village, Harian Chapra. As soon as, she reached near bridge located at her naihar, Ravi Shankar Yadav along with two other unknown persons carne in a car and on the point of pistol, took her away along with her daughter forcibly and carried her to a line hotel ahead Chakia where, she was kept in the hotel for whole night and was raped. On the following morning, she was taken to Patna where she was confined in a room for four consecutive days where she was again ravished. After four days, again she was brought to Narainpur near Kotwa where she was kept for three days and was ravished during aforesaid period. The accused had also threatened her not to raise alarm. In the night of 23.11.2011 appellant along with four unknown persons carried her on motorcycle from Narainpur and left at Shankar Saraiya Bazar wherefrom she had gone to her sasural and disclosed the whole event to her family members. Thereafter, she along with her husband came to Mufassil P.S. and disclosed regarding occurrence but the police not only failed to register the case but also to get her medically examined. 3. The aforesaid complaint was sent to the concerned police station for registration, investigation of the case on the basis of which Piprakothi P.S. Case No.303/2011 was registered whereupon investigation commenced and concluded by way of submission of charge-sheet leading to trial meeting with ultimate result, the subject matter of the instant appeal. 4. 3. The aforesaid complaint was sent to the concerned police station for registration, investigation of the case on the basis of which Piprakothi P.S. Case No.303/2011 was registered whereupon investigation commenced and concluded by way of submission of charge-sheet leading to trial meeting with ultimate result, the subject matter of the instant appeal. 4. The defence case as is evident from mode of cross-examination as well as from statement recorded under Section 313 of the Cr PC is of complete denial of the occurrence. However, neither any DW nor any sort of exhibit has been made on behalf of defence. 5. So many points have been argued on behalf of appellant while challenging the judgment impugned. It has been submitted on behalf of the appellant that altogether 18 witnesses have been examined including husband, mother-in-law, brother-in-law (Bhainsur), sister-in-law (gotni), however, majority of them did not support the case of the prosecution. 6. From the narration of the complaint petition itself, it is evident that occurrence of kidnapping was witnessed only by Panapati Devi who has been examined as PW 15 and the victim as PW 16. After parallel scrutiny of evidence of the aforesaid two witnesses, it is crystal clear that occurrence of kidnapping so suggested or occurrence of rape as has been flashed is nothing but only in a way to safeguard their prestige in the locality because of the fact that victim on her own had gone and from the conduct of the prosecution witnesses, it is evident that they were accustomed to face such situation, therefore, they have not taken any sort of legal recourse during the intervening period. It has also been submitted that there happens to be admitted fact that neither the victim was examined under Section 164, Cr PC nor was she ever medically examined during course of investigation. 7. It has also been submitted that there happens to be admitted fact that neither the victim was examined under Section 164, Cr PC nor was she ever medically examined during course of investigation. 7. It has further been submitted that when the conduct of victim is perceived, it is evident that during her examination-in-chief she had purposely deleted the first incident wherein she was raped at line hotel ahead of Chakia, because of the fact that all the hotels, the place at Patna where she was kept for four days after hiring a room at least would have given sufficient opportunity to the complainant to raise alarm for her safety as well as for getting herself out of clutch of appellant, had there been kidnapping and rape without her consent but she had not said anything. Virtually, from her examination-in-chief, it is apparent that neither there was any sort of event endangering her life nor threatening. She had not disclosed in her examination-in-chief as to how she was carried away from the alleged place of occurrence and even admitting that she was taken away in a vehicle, how the vehicle was parked during intervening period and where those persons were, at least, the driver and furthermore, their activities while carrying her to Narayanpur. It has also been submitted that in the complaint petition there happens to be complete silence of presence of police but during course of evidence at least, from the evidence of PWs-15 and 16, it is apparent that victim had arrived along with the police personnel. How and in what manner police accompanied them and whether any sort of information was given to police, that has purposely been concealed as well as suppressed because of the fact that had there been fair act of the prosecution, at least would have disclosed the presence of police of which police station and further would have brought on record whether any SD entry was there or FIR was lodged. 8. Now coming to the evidence of I.O., PW 18 it has been submitted that he had admitted himself regarding his faulty investigation in the background of the fact that he had not gone and inspected those places where rape was alleged. 8. Now coming to the evidence of I.O., PW 18 it has been submitted that he had admitted himself regarding his faulty investigation in the background of the fact that he had not gone and inspected those places where rape was alleged. Not only this, he had shown the place of occurrence different than that of specifically alleged by PW 16 in her complaint petition to be near a bridge lying at her naihar which, PW 18 under para-4 found completely inconsistent. He had not traced out any bridge nor from boundary, the same is perceived. 9. Relying upon 2011 (2) East Cr C 87 (SC), 2013 (2) East Cr C 635 (Pat), 2013 (2) East Cr C 141 (SC), and 2008 Cr LJ 721, it has been submitted that non-raising of alarm during the intervening period, non-institution of case at the behest of family members of victim, during such long interval, staying, with appellant as per her own version without any genuine resistance, the version not properly found corroborated its cumulative effect as well as its totality gives a clear-cut impression that prosecution version could not survive and on account thereof, appellant is entitled for acquittal. 10. On the other hand, learned Additional P.P. while supporting the findings so recorded by the learned trial Court has submitted that so far case of rape is concerned, the evidence of victim is to be taken on highest pedestal. From the evidence itself, it is evident that there was no enmity amongst the party since before, therefore, there happens to be no question of false implication. It has further been submitted that once victim is found under the grip of assailant and further, finding herself faced with death knell at every moment, then in such circumstance, one should not ask for and see the conduct of the victim. So far present case is concerned, just after lifting the victim, she was under full control of the appellant and on account thereof, there was no question of raising alarm to get herself rescued. Therefore, keeping silence for such a long period could not be considered as a blot over the prosecution case. It has further been submitted that for the fault of I.O. the case could not be thrown away. Therefore, keeping silence for such a long period could not be considered as a blot over the prosecution case. It has further been submitted that for the fault of I.O. the case could not be thrown away. I.O. PW 18 has clearly stated that he had not got the victim examined under Section 164, Cr PC as well as also not sent the victim for medical examination. 11. Now coming to the evidence of PW 16, it has been submitted that the appellant during cross-examination got it further proved whereunder the victim had deposed that in spite of her resistance and protest, she was raped by the appellant. Therefore, the offence of 366, IPC as well as 376, IPC has rightly been applied whereunder appellant stood convicted. Hence, the appeal is fit to be dismissed. 12. From the lower Court record, it is evident that altogetter eighteen witnesses have been examined. It is unfortunate that out of eighteen witnesses majority have gone volte face including some of the family members out of whom PW 9 is Asha Devi, own sister as well as gotni of victim. She had stated that Devanti Devi is her gotni as well as full sister. She is not aware of the incident having faced by Devanti Devi. She had not given her statement before the police and on account thereof, she was declared hostile but prosecution could not get anything from her. 13. PW 11 is Rajdeo Ray, husband of PW 9, that means to say, bhainsur of victim. He had deposed that he knew about occurrence. Devanti Devi happens to be his bhabhu. She had gone to Motihari along with her child for treatment. While she was going to her naihar, due to falling of darkness, however could not return. After some days when she met, she disclosed that she was kidnapped by one Ravi Shankar Yadav who took her on vehicle and committed illegal act with her. Ravi Shankar Yadav is a desperate fellow and always keeps on threatening. He had further stated that the occurrence is of about 1-1/4 years ago. He had identified the accused. In para-3 of his cross-examination, he had stated that he had not accompanied the victim to Motihari. He had further stated that kidnapping of Devanti was not effected in his presence. He had further stated that illegal act was not committed in his presence. He had identified the accused. In para-3 of his cross-examination, he had stated that he had not accompanied the victim to Motihari. He had further stated that kidnapping of Devanti was not effected in his presence. He had further stated that illegal act was not committed in his presence. In para-4, he had stated that there was altercation in between the spouse before the occurrence. In para-5, he had stated that after returning of Devanti whatever she had disclosed that was stated to him in the Court. In para-5, he had stated that no occurrence had taken place in his presence. 14. PW 14 is Dinesh Ray, the husband of victim. In his examination-in-chief, he had stated that Devanti happens to his wife. He has got no information regarding occurrence. He simply knows about her kidnapping because of the fact that the aforesaid event was disclosed by his mother. His wife had gone to Motihari along with his mother Panapati Devi and then was going to her naihar. She had gone there and then returned back. Some kinds of treatment, she had received, then thereafter is not known to him, accordingly, he was declared hostile. He had identified the accused. During cross-examination (It para-4, he had stated that he had not seen the incident of kidnapping. Whatever his mother had disclosed was at the instance of the villagers. He had enquired from his wife over phone who controverted the allegation of kidnapping as well as any sort of illegal act having been committed with her. 15. PW 15 is Panapati Devi, mother-in-law of victim. She had stated that the occurrence is of about one year and three months ago. It was 8:00 p.m. She along with her daughter-in-law, Devanti had come to Motihari for treatment. While they were going towards naihar of her daughter-in-law, Ravi Shankar Yadav pushed her and then taken away her daughter-in-law along with her child. She is not aware with the fact where Ravi Shankar Yadav had taken away. After interval of eight days, her daughter-in-law came. Police had brought her. She had disclosed that Ravi Shankar Yadav had taken her to Patna, Muzaffarpur and Chakiya. She did not speak anything more. She was also declared hostile. During cross-examination at para-4, she had stated that it was 8:00 p.m. when her daughter-in-law, was kidnapped. After interval of eight days, her daughter-in-law came. Police had brought her. She had disclosed that Ravi Shankar Yadav had taken her to Patna, Muzaffarpur and Chakiya. She did not speak anything more. She was also declared hostile. During cross-examination at para-4, she had stated that it was 8:00 p.m. when her daughter-in-law, was kidnapped. It was dark and on account thereof, people were not able to be identified and accordingly, she could not able to see who had kidnapped her daughter-in-law. No occurrence was committed with her. In para-5, she had stated that later on, she had come to know regarding innocence of Ravi Shankar Yadav and on account thereof, they had compromised the case. 16. PW 16 is victim herself. She had stated that the occurrence is of about 11/2 years ago. It was 7:00 p.m. At that very time, she along with her mother-in-law was going to her naihar to get her daughter treated. During midst of way, they had seen Ravi Shankar Yadav who lifter her and took her away in the vehicle. He came to Patna where he raped against her will. Thereafter, she was carried to Kotwa and then thereafter, she was taken to Shankar Saraiya Bazar and during intervening period he continued to rape her. Then thereafter, she was left at Shankar Saraiya Bazar. Thereafter, she had informed her sasural they came. Police also came and then took her to sasural She had gone to Mufassil P.S. to lodge a case but police declined to register the same and accordingly she had filed a complaint petition. She had accordingly, identified the accused. During cross-examination in para-4, she had stated that the appellant got her child treated in a hospital. Then she had stated that he forcibly took her away along with her child and against her will. Then she had stated that she was not kidnapped. In para-8, she had stated that Ravi Shankar Yadav had not acted forcibly during the aforesaid eight days and for which there happens to be explanation recorded by the Court. Subsequently, she has stated that Ravi Shankar Yadav had not committed rape against her Wish. Again she stated that he used to commit rape against her wish and will. She always forbade him not to commit such activity but he never obeyed and kept on committing rape upon her. Subsequently, she has stated that Ravi Shankar Yadav had not committed rape against her Wish. Again she stated that he used to commit rape against her wish and will. She always forbade him not to commit such activity but he never obeyed and kept on committing rape upon her. In para-9, she had further stated that statement was not recorded under Section 164, Cr PC as well as she was also not medically examined. In para-10, she had stated that now she has got no complain against the appellant. In para-11, she had stated that she has not made complaint with any body during the aforesaid intervening period for eight days even on meeting. 17. PW 17 is the mother of victim who had also disowned the prosecution side, as such, declined as hostile. 18. PW 18 is the Investigating Officer who deposed that after registration of the case he had taken further statement of victim, recorded statement of other PWs and then thereafter, he had submitted charge-sheet. In para-4 of his examination-in-chief, he had stated that the place of occurrence happens to be main road and 1-1/2 Kilometers East from Chhatauni Chowk having boundary, North-Pitch Road, South-Wheat field of Mohan Prasad, East & West-Roads. During cross-examination at para-5, he had admitted that he had not inspected those places where victim was raped. He had not collected evidence therefrom. He had further stated that he had not got the victim examined under Section 164, Cr PC as well as having been medically examined. 19. Now, during course of analyzing the evidence of the PWs, it is consistent version with regard to presence of Panapati Devi (PW 15) along with victim Devanti Devi (PW 16) at the alleged time of occurrence while they were proceeding towards naihar of PW 16 lying at village- Hariyan Chapra. It is also apparent from the evidence of PW 15 that during her examination-in-chief, she had categorically stated that it was appellant, Ravi Shankar Yadav who had lifted the victim. However, during course of her cross-examination at para4, she had stated that on account of 'darkness, she could not be able to identify the co-villager. It is also apparent from the evidence of PW 15 that during her examination-in-chief, she had categorically stated that it was appellant, Ravi Shankar Yadav who had lifted the victim. However, during course of her cross-examination at para4, she had stated that on account of 'darkness, she could not be able to identify the co-villager. Not only this, her conduct put a question mark, why not she had raised the issue with the naiharwala of victim where she was going, disclosed to her son as well as going to police station for launching criminal case regarding kidnapping of victim by appellant keeping him for eight days without any legal step speaks the event otherwise. 20. Now remains the solitary evidence of PW 16, the victim. She had stated that just after lifting, appellant took her to Patna, kept there, committed rape and again taken her to Kotwa and then after eight days, she was left at Shankar Sariya /Bazar and during intervening period, she was raped. During course of her evidence, as is evident, though she had alleged that offence of rape was committed against her wish and will but she had not disclosed any sort of coercion or threat and further during intervening period, she was kept in such a way that she was unable to speak anything to anybody, more particularly, taking into account her version under para-8 that even after meeting with persons, she had not spoken anything even during the aforesaid intervening period. However, the act of rape• against her will is found from her para-8 of her cross-examination. 21. Now this part is to be seen with another surrounding circumstances visualizing from the record itself. From the evidence of PWs 15 and 16, it is apparent that PW 16 was accompanied by the police official. None of them had stated that they had ever made any complaint with regard to commission of rape over PW 16 by the accused. Not only this, PW 15 was well aware of the fact that her daughter-in-law was forcibly kidnapped by her co-villager, Ravi Shankar Yadav (appellant), then in that event, either she should have gone to naihar of victim at Hariyan Chapra and would have informed the inmates, taken the legal recourse or would have returned back to her place to inform her son regarding aforesaid mis-happening. Keeping silence on that very score and further sitting idle without taking any effort to trace out the victim and further forbidding themselves to approach the police is the matter of concern, moreso, when their conduct during course of trial did not find favour to the prosecution. 22. Furthermore the truthfulness of version of PW 16, victim is found erased by the evidence of PW 14, her husband who had not supported case of kidnapping as well as rape on victim by stating that he had telephonically talked with his wife having compliant at her end on any way. As such, neither the version of victim docs inspire confidence nor is found corroborated in rightful manner, hence, it looks unsafe, to rely upon prosecution version. 23. Consequent thereupon, the judgment of conviction and sentence recorded by learned trial Court is set aside. The appeal is allowed. 24. Since appellant is in custody, he is directed to be released forthwith if not wanted in any other case. Appeal allowed.