JUDGMENT Hon’ble V.K. Bist, J. These appeals are directed against the judgment and order dated 30.03.2012, passed by the Additional Sessions Judge/1st F.T.C., Rudrapur, Udham Singh Nagar, in Sessions Trial No. 16 of 2001, whereby the said court has convicted accused/appellants Pritam Singh and Pala Singh @ Jaspal Singh under Sections 323 and 376 I.P.C., and sentenced them to rigorous imprisonment for a period of one year and directed to pay fine of Rs. 1,000/- under Section 323 I.P.C., and in default of payment of fine further imprisonment for a period of one week, rigorous imprisonment for a period of ten years and directed to pay fine of Rs. 30,000/- each under section 376 I.P.C., and in default of payment of fine further imprisonment for a period of one year. By the same judgment and order, the trial court has convicted appellant Darshan Singh under Sections 323 and 376 read with Section 34 I.P.C., and sentenced him to rigorous imprisonment for a period of one year and directed to pay fine of Rs. 1,000/- under Section 323 I.P.C., and in default of payment of fine further imprisonment for a period of one week, rigorous imprisonment for a period of ten years and directed to pay fine of Rs. 30,000/- under Section 376 read with Section 34 I.P.C., and in default of payment of fine further imprisonment for a period of one year. It was directed that all the sentences shall run concurrently. 2. Heard Shri S.K. Mandal, Advocate for the appellant-Pritam Singh, Shri Siddhartha Bisht, Advocate for the appellant-Pala Singh, Shri Siddhartha Sah, Advocate for the appellant-Darshan Singh and Shri Kuldeep S. Rawal, learned Brief Holder for the State. 3. Prosecution story, in brief, is that on 06.10.2000, at 07:30 p.m., P.W.1 Smt. Kuntesh Sharma (prosecutrix) gave a written report at Police Station Kotwali Rudrapur, District Udham Singh Nagar, stating therein that on 06.10.2000 at around 02:00 p.m., she was going towards her uncle’s home, namely, Tara Singh resident of Village Amarpur, Thana Rudrapur. When she reached near sugarcane field (nearby culvert), which is on Amarpur road, three persons caught hold of her, out of whom one was Sikh and two were clean-shaven. When she reached near sugarcane field (nearby culvert), which is on Amarpur road, three persons caught hold of her, out of whom one was Sikh and two were clean-shaven. She stated that she tried to shout but they slapped her, pressed her mouth, all of them dragged her towards sugarcane field (which is down towards the road), tied scarf on her neck and the two accused, out of whom one was Sikh and another was clean shaven, committed rape upon her, and the third person, who was clean shaven, stood nearby. After commission of rape, they asked her to handshake and become their friend, and said do whatever their work with the police and not to make complaint against them with the police. She said let her go and she will not complain to the police. Then, she asked their names. Thereafter, they disclosed their names as Darshan Singh, Pala Singh and Pritam Singh resident of Amarpur, Thana Rudrapur. After that, Darshan Singh asked her to go through the way of culvert. Thereafter, from that way, she came out on the road where she met Gyani Charanjeet Singh resident of Thana Raipur, Rudrapur and Chand Singh resident of Amarpur and disclosed them about the incident. Then, they took her on the motorcycle towards the sugarcane field where the three accused were sitting. On seeing them, one of the accused, namely, Pala Singh fled away. They scolded Darshan Singh and Pritam Singh and thereafter, dropped her (Smt. Kuntesh Sharma) at the house of Tara Singh, where she disclosed about the incident. In the said complaint, the complainant requested to lodge an F.I.R. and to take legal action in the matter. On the basis of said report, Crime No.1003 of 2000 was registered at Police Station Rudrapur against the accused/appellants Pritam Singh, Pala Singh and Darshan Singh relating to offences punishable under Sections 323 and 376 I.P.C. Investigation was taken up by P.W.6 S.I. Vijay Pal Gautam, who interrogated the witnesses and started investigation. After completion of investigation, the said Investigating Officer submitted charge sheet against the accused/appellants Pritam Singh, Pala Singh and Darshan Singh, for their trial in respect of offences punishable under Sections 323 and 376 I.P.C. 4. After completion of investigation, the said Investigating Officer submitted charge sheet against the accused/appellants Pritam Singh, Pala Singh and Darshan Singh, for their trial in respect of offences punishable under Sections 323 and 376 I.P.C. 4. The Chief Judicial Magistrate, Udham Singh Nagar, on receipt of the charge sheet, after giving necessary copies to the accused, as required under section 207 Cr.P.C., committed the case to the Court of Sessions for trial on 16.01.2001. After hearing the parties on 09.08.2001, learned Sessions Judge, Udham Singh Nagar, framed charge of offences punishable under Section 323 read with Section 34 I.P.C. and one punishable under Section 376 of I.P.C, to which all the accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Smt. Kuntesh Sharma (prosecutrix) (complainant), P.W.2 Tara Singh, P.W.3 Dr. Amita Upreti (who medically examined the lady), P.W.4 Gyani Gurcharanjeet Singh, P.W.5 Constable Ghanshyam Rathi and P.W.6 S.I. Vijay Pal Gautam (Investigating Officer). Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which they alleged that the evidence adduced against them is false. After hearing the parties, the trial Court found accused, Pritam Singh, Pala Singh and Darshan Singh, guilty of charge of offences punishable under Section 323 read with Section 34 I.P.C. and one punishable under Section 376 of I.P.C., and convicted them accordingly. The said court has convicted accused/appellants Pritam Singh and Pala Singh @ Jaspal Singh under Sections 323 and 376 I.P.C., and sentenced them to rigorous imprisonment for a period of one year and directed to pay fine of Rs. 1,000/- under Section 323 I.P.C., and in default of payment of fine further imprisonment for a period of one week, rigorous imprisonment for a period of ten years and directed to pay fine of Rs. 30,000/- each under section 376 I.P.C., and in default of payment of fine further imprisonment for a period of one year. By the same judgment and order, the trial court has convicted appellant Darshan Singh under Sections 323 and 376 read with Section 34 I.P.C., and sentenced him to rigorous imprisonment for a period of one year and directed to pay fine of Rs. By the same judgment and order, the trial court has convicted appellant Darshan Singh under Sections 323 and 376 read with Section 34 I.P.C., and sentenced him to rigorous imprisonment for a period of one year and directed to pay fine of Rs. 1,000/- under Section 323 I.P.C., and in default of payment of fine further imprisonment for a period of one week, rigorous imprisonment for a period of ten years and directed to pay fine of Rs. 30,000/- under Section 376 read with Section 34 I.P.C., and in default of payment of fine further imprisonment for a period of one year. It was directed that all the sentences shall run concurrently. Aggrieved by the judgment and order dated 30.03.2012, passed by the Additional Sessions Judge/1st F.T.C., Rudrapur, Udham Singh Nagar, in Sessions Trial No. 16 of 2001, these three appeals are preferred by the convicts. These three appeals are filed by the convicts separately which were taken up together and are being disposed of by this common judgment. 5. Medical examination of the victim was conducted by Dr. Amita Upreti P.W.3 on 06.10.2000. Medical report of the prosecutrix (Ex. A-3) is being reproduced below: “A thin built middle aged lady, height 163 c.m., Teeth 14/11 present. On external examination, external injury not seen at the time of examination, only complaint by patient Rt. Side chest pain. Breast well developed, vaginal and axillary hairs well developed. Internal examination: two fingers easily inserted inside the vagina, on examination, internal injury not seen, hymen absent. Two glass slides of vaginal smear for histopathological examination to presence of any dead or alive spermatozoa. For her age verification, advised X-ray of Rt. wrist, Rt. elbow joint. External injuries: No external injury present on her body. She is only complaining of pain on Rt. side of chest. 7 Lower incisor tooth on Lt. side is loose. Hence, the injury is referred to dental surgeon for opinion.” A supplementary Medical Report was also filed, in which the doctor opined that according to the radiological finding, the radiological age of the girl was more than 19 years. Smear was negative for spermatozoa. No definite opinion could be given about act of rape. She was habitual to intercourse. 6. P.W.1 Smt. Kuntesh Sharma (victim) stated almost the same averments made by her in the written report except her knowledge about the identity of the accused. Smear was negative for spermatozoa. No definite opinion could be given about act of rape. She was habitual to intercourse. 6. P.W.1 Smt. Kuntesh Sharma (victim) stated almost the same averments made by her in the written report except her knowledge about the identity of the accused. In the F.I.R., she stated that accused themselves disclosed their names to her, whereas in her statement, she stated that accused were calling each other as Pala, Pritam and Darshan. Besides it, she stated that she gave the written report to Police Station, Rudrapur after getting it typed. She stated that whatever she narrated to the typist, he typed the same. She stated that only after reading and hearing the report, she signed the same. She proved the First Information Report (Ext. A-1). She also proved the recovery memo of her Salvar & Kurta (Ext. A-2). However, in cross-examination, she said that neither Darshan Singh was present at the spot nor he pulled her inside the sugarcane field nor he did anything wrong with her. 7. P.W.2 Tara Singh, in his testimony, stated that around 3½ years back at 05:00 p.m. when he reached to his house, he saw Kunti Sharma in his house, who is the wife of Sharma reporter. He stated that condition of Kunti Sharma was very serious. She was unconscious. When he asked his children, then they told him that Charanjeet left her at their home. He telephoned at Police Station, Rudrapur and thought that in case she dies, he will be held responsible. The police personnel told him that they are coming. Thereafter, he took his vehicle and reached to the Police Station, Rudrapur by his vehicle. Police told him that police had gone to his village. He stated that when he was returning back to his home from the Police Station, Kunti was with the police. When he asked the Kunti, then she told her that accused Darshan Singh, Pala Singh and Pritam Singh had committed rape upon her. Thereafter, he also went to Police Station, Rudrapur with the police. Thereafter, police recorded statement of the Kunti. Police sent her for medical examination. Then, she was medically examined and in the Police Station, her clothes; Salvar & Kurta, were sealed in front of him. He proved Ext. A-2. 8. P.W.4 Dr. Amita Upreti is the Medical Officer, who conducted the medical examination of the victim. Thereafter, police recorded statement of the Kunti. Police sent her for medical examination. Then, she was medically examined and in the Police Station, her clothes; Salvar & Kurta, were sealed in front of him. He proved Ext. A-2. 8. P.W.4 Dr. Amita Upreti is the Medical Officer, who conducted the medical examination of the victim. In her statement, she said same thing, which was written by her in the medical report. 9. P.W.5 Constable Ghanshyam Rathi prepared the Chik F.I.R. (Ext. A-8) and made entry in the General Diary. 10. P.W.6 S.I. Vijay Pal Gautam is the Investigating Officer, who during investigation recorded statements of witnesses and submitted charge sheets. 11. Mr. S.K. Mandal, Advocate for the appellant-Pritam Singh submitted that the judgment, order and sentence passed by the learned trial Court is against the weight of evidence available on record. Same is on the basis of surmises & conjecture and is contrary to law. He argued that the medical report does not support the prosecution case and according to the opinion of the doctor, no definite opinion about rape could be given and no internal and external injury was found. He contended that the P.W.4 Gyani Gurdeep Singh has not supported the prosecution case, inasmuch as, he stated that on 06.10.2000, he did not find any woman in unconscious position and he did not took her on motorcycle. He submitted that the prosecutrix, in her statement, has stated that the accused Darshan Singh has not committed any rape with her and denied for any incident, which clearly shows the false implication and no substance in the case. He submitted that at the time of incident, the prosecutrix was aged about 38 years and the description & properties of the accused mentioned in the F.I.R. is not corroborated with the prosecution case. He argued that the statements of the prosecution witnesses are self-contradictory, which have not proved the case beyond the reasonable doubt. He submitted that in fact, accused and prosecutrix knew each other prior to the incident and in fact, in the year 1994, some statement had been made to support the case from the side of accused/appellant against the relatives of the prosecutrix and due to this reason, appellant was falsely implicated. 12. Mr. He submitted that in fact, accused and prosecutrix knew each other prior to the incident and in fact, in the year 1994, some statement had been made to support the case from the side of accused/appellant against the relatives of the prosecutrix and due to this reason, appellant was falsely implicated. 12. Mr. Siddhartha Bisht, Advocate for the appellant-Pala Singh @ Jaspal Singh submitted that P.W.4 Gyani Gurcharan Jeet Singh, who is said to have seen the accused person, did not support the prosecution case and was declared hostile. He argued that in fact, identification of accused/appellant was not made by the victim and she did not know the accused from before. He contended that the medical report does not prove the commission of rape upon the victim. He further submitted that the alleged spermatozoa on the clothes of the victim have not been matched with the spermatozoa of the appellant. He submitted that the bloodstains on the clothes of the victim have not been matched with the victim or the appellant. He then submitted that on the basis of the single testimony of P.W.1, which is itself doubtful, the appellant could not be convicted under the aforesaid sections. He submitted that the sentence awarded is liable to be set aside. 13. Mr. Siddhartha Sah, Advocate for the appellant-Darshan Singh submitted that the General Diary has been weeded out, thus inception of alleged crime is not proved. He submitted that the victim has clearly denied the involvement of appellant-Darshan Singh in the crime. He submitted that P.W.1, the victim, denied assault and rape by the appellant. He submitted that in the cross examination, the victim denied the appellant’s involvement in the crime. Thus, the findings of the trial Court are based on presumption and surmises and is dehors the evidence on record. 14. Mr. Kuldeep S. Rawal, learned Brief Holer for the State submitted that the accused/appellants in order to fulfil their common motive and with common intention, slapped her, pressed her mouth and without her consent, committed rape upon her. He submitted that the testimony of P.W.1 cannot be disbelieved. He submitted that the sentence awarded by the trial Court is just, which the trial Court has rightly awarded. 15. I have considered the submission advanced by the learned counsel for the parties and have perused the papers available on record. He submitted that the testimony of P.W.1 cannot be disbelieved. He submitted that the sentence awarded by the trial Court is just, which the trial Court has rightly awarded. 15. I have considered the submission advanced by the learned counsel for the parties and have perused the papers available on record. Radiological age of the prosecutrix is found more than 19 years. She in her statement has disclosed her age as 40 years. 16. The prosecutrix, in her statement, stated that on 06.10.2000, when she was going to her uncle Tara Singh, at about 02:00 p.m., three persons, namely, Darshan Singh, Pala Singh and Pritam Singh met her near sugarcane field. They took her inside the sugarcane field. Pala Singh and Pritam Singh committed rape upon her. The accused were calling their names as Pala, Pritam and Darshan. Thereafter, Darshan told her to go through the way of Nala. After reaching at road, she met Gyani Charanjeet Singh and Chand Singh, to whom she told about the incident. They took her to sugarcane field where all the three accused were sitting. On seeing these persons, Pala Singh ran away, whereas Darshan Singh and Pritam Singh were scolded by them. But this witness, in cross-examination, has said that neither Darshan Singh was present at the spot nor he pulled her inside the sugarcane field nor he did anything wrong with her. Thus, the statement of this witness in itself is contrary. Moreover, the crucial witness, namely, Gurcharan Singh P.W.4 did not support the prosecution version. Rather, he turned hostile. Another witness Tara Singh was not produced. In such circumstances, the Court is required to be more careful. The alleged incident took place at 02:00 p.m. on 06.10.2000. F.I.R. was lodged at 07:30 p.m. and the medical examination was conducted same day at 08:50 p.m. Medical report does not support the case of prosecution as neither any internal injury was found nor any external injury was seen on the body of victim. Smear was found negative for spermatozoa. But, in the Salvar of the prosecutrix, human sperms were found. Surprisingly, the sperms of none of the accused were sent for chemical examination. In such circumstances, it cannot be said that those sperms were of the accused. In such circumstances, this Court finds that the prosecution miserably failed to prove the case against the appellants beyond reasonable doubt. But, in the Salvar of the prosecutrix, human sperms were found. Surprisingly, the sperms of none of the accused were sent for chemical examination. In such circumstances, it cannot be said that those sperms were of the accused. In such circumstances, this Court finds that the prosecution miserably failed to prove the case against the appellants beyond reasonable doubt. The trial Court erred in recording conviction and sentence in question. The appeals deserve to be allowed. 17. Accordingly, the appeals are allowed. The appellants/accused are acquitted from the charge levelled against them. The judgment and order dated 30.03.2012 passed by the Additional Sessions Judge/ 1st F.T.C., Rudrapur, Udham Singh Nagar, in Sessions Trial no. 16 of 2001 is hereby set aside. The appellants are on bail. They need not to surrender. Sureties are discharged. 18. Let the record of the Court below be sent back to the Court concerned. 19. Let copy of this judgment be also kept in the connected files. 20. Before parting, this Court has no hesitation in saying that the investigation of the case was not done properly. While the clothes of the prosecutrix were sent for chemical examination for finding out human sperms, but sperms of none of the accused were sent for matching. This may be negligence on the part of investigation or deliberate action. Let a copy of this judgment be sent to the Director General of Police, Uttarakhand, who will examine the case and will issue necessary instructions to all concerned so that such lapses may not reoccur in future.