JUDGMENT Aditya Nath Mittal, J. 1. This criminal appeal has been filed against the judgment and order dated 4.11.1989, passed by Additional Sessions Judge, Hardoi, by which the appellants have been convicted for the offences punishable under sections 376, 354, 395 and 397 IPC. As per prosecution case, on 25/26.1.1985, at about 1.00 a.m. in the midnight when the complainant was sleeping along with his family members in the house, then some miscreants entered into his house through roof, who started beating his son Suleman, wife Takdira, daughters Sabira and Rahisha and son Sufiyaon and asked for the valuables. The miscreants torn out the cloths of his daughters and outraged their modesty and committed dacoity of the goods of the house. The miscreants committed rape with the daughters of the complainant. Upon the alarm, Witnesses Kadir, Musahif, Hussain, Hasim, Shiv Ram, Zadda came on the spot and the witness Kadir caused fire in the "PUYAL". Due to pressure of the villagers, the miscreants escaped along with the articles of the complainant. The miscreants were 15-16 in the number, out of which Ramjani, Musahib, Wazahat, Javed, Makka Chamar, Sirdar, Alijaan were identified by name in the light of lantern, Kuppi, torch and fire. The First Information Report was lodged on 26.1.1985 at 8.35 a.m., upon which the matter was investigated. During the investigation, the Investigating Officer collected the blood stained mud and sample of mud of ashes, cartages and "Tickli" as well as the Pyjama (Ghaghara) of Smt. Rahisha and Smt. Sabira and saw the lantern as well as the Kuppi and also took into possession these articles and prepared the recovery memo on the spot. Sabira and Rahisha were medically examined at Police Station Sandila, Hardoi. After the investigation, the charge-sheet was filed against ten persons. The accused persons denied the charges and claimed trial. 2. The prosecution has examined Smt. Sabira (PW-1), Rahisha (PW-2), Dr. Shaili Mehrotra (PW-3), Dr. Om Mehrotra (PW-4), Hazi (PW-5) S.I. Bheema Singh Poriya (PW-6) and Dr. Yashodhara Johari (PW-7). 3. Hazi (PW-5), who is the complainant has supported the First Information Report version in his statement and has further stated that his daughter Sabira was raped by Ramjani and Wazahat, while his another daughter Rahisha was raped by Sirdar and Alijaan. This witness has proved the First Information Report as Exhibit-Ka-6. 4. Yashodhara Johari (PW-7). 3. Hazi (PW-5), who is the complainant has supported the First Information Report version in his statement and has further stated that his daughter Sabira was raped by Ramjani and Wazahat, while his another daughter Rahisha was raped by Sirdar and Alijaan. This witness has proved the First Information Report as Exhibit-Ka-6. 4. Sabira (PW-1) and Rahisha (PW-2) are the victims as well as witnesses of fact, who have corroborated the statement of complainant Hazi (PW-5). 5. Dr. Shaili Mehrotra (PW-3) has proved that on 26.1.1985, she had medically examined Smt. Rahisha and found the following injuries on her person (i) Contusion 14 cm. x 2 cm. back on Chest 24 cm below the root of neck colour red. (ii) Contusion 6 cm. x 3 cm. on the lateral aspect of left thigh 10 cm above knee colour red. 6. She has proved the medical examination report as Exhibit-Ka-1. Smt. Sabira was examined on 30.1.1985 by Dr. Yashodhara and in internal examination, the following injuries were found (i) Slight bleeding was present superficially from anterior vaginal wall laceration which was 2.5 cm in size and a small abrasion of 1/2 cm. on posterior vaginal wall. 7. Dr. Om Mehrotra had examined Smt. Takdira, Suleman Sufiyaon and Sabira and the following injuries were found on their person Injuries of Smt. Takdira (i) Contusion 5 cm. x 2 cm. on back of right forearm 1 and 1/2 cm. above wrist placed obliquely Red. Adv. X-ray. (ii) Contusion and abrasion 3 cm. x 1 and 1/2 cm. in front of left forearm 3 and 1/2 cm. above wrist Red. (iii) Abraded 3 cm. x 2 cm. in front of left leg 5 cm. above ample Red. Injuries of Suleman (i) All contusion 2 cm. x 1 and 1/2 cm. on right side forehead 3 and 1/2 cm. above eyebrow, Red. (ii) Contusion 3 cm. x 2 cm. on left side scalp glens above left eye brow. Red. (iii) Contusion 5 cm. x 2 cm. on left scapula. Red. Injury of Sufiyaon (i) Contusion 3 cm. x 2 cm. on left side scalp 14 cm. above left ear. Red. Injuries of Smt. Sabira (i) Contusion 14 cm. x 2 cm. back on Chest 24 cm. below the root of neck colour red. (ii) Contusion 6 cm. x 3 cm. x 2 cm. on left scapula. Red. Injury of Sufiyaon (i) Contusion 3 cm. x 2 cm. on left side scalp 14 cm. above left ear. Red. Injuries of Smt. Sabira (i) Contusion 14 cm. x 2 cm. back on Chest 24 cm. below the root of neck colour red. (ii) Contusion 6 cm. x 3 cm. on the lateral aspect of left thigh 10 cm above knee colour red. 8. S.I. Bheema Singh Poriya (PW-6) has proved the spot inspection, investigation and the recovery memos as Exhibit-Ka-9 to Exhibit-Ka-14 and the charge-sheet as Exhibit-Ka-15. 9. After the prosecution evidence, the statements of accused-persons were recorded under section 313 CrPC. 10. In the statement under section 313 CrPC, the appellant-Ramjani denied the allegations and stated that he is married with daughter of Bhaggal and after the death of Bhaggal, her mother had transferred her property in his name. The complainant also wanted the same property and had filed a suit in Consolidation Court through Kasim which was dismissed, therefore, Hazi and Kasim are inimical with him and he has been falsely implicated. Musahib has also repeated the statements of Ramjani and has said that his age is 85 years. Wazahat has stated that because Ramjani is his relative, therefore, he has been falsely implicated due to enmity. Javed has stated that Ramjani is his "Samdhi", therefore, he has been falsely implicated due to enmity with him. Sirdar has stated that Ramjani is his brother-in-law, therefore, he has been falsely implicated. Alijaan has stated that Ramjani is his maternal uncle, therefore, he has been falsely implicated. Makka has stated that Hazi wanted to grab a tree situated in front of his house regarding he had made complaint to the police, due to which, police had beaten him, therefore, he has been falsely implicated. Other accused persons had also denied the prosecution case and stated that they have been falsely implicated due to enmity. 11. No evidence in defence was adduced by the accused-persons. 12. After appreciating the evidence on record, learned Additional Sessions Judge, Hardoi held guilty the appellants for the offences punishable under sections 376,354, 395 and 397 IPC and sentenced them accordingly. 13. During the pendency of the appeal, the appellant No. 2-Musahib, appellant No. 4-Javed, appellant No. 6-Alijaan and appellant No. 7-Makka had expired, therefore, the appeal filed by them have abated. 13. During the pendency of the appeal, the appellant No. 2-Musahib, appellant No. 4-Javed, appellant No. 6-Alijaan and appellant No. 7-Makka had expired, therefore, the appeal filed by them have abated. In this way, the appeal of Ramjani, Wajahat, Sirdar are alive. 14. Learned Counsel for the appellants has submitted that appellant Ramjani and Musahib, Wajahat and Javed and Sirdar and Alijaan are father and sons. It has also been submitted that as per the ages told by them in the statement under section 313 CrPC, Musahib was aged about 85 years, Javed aged about 75 years, Sirdar aged about 83 years and Makka was aged about 68 years. In the light of these relationship of father and sons, and their respective ages, it has been submitted that it is wholly improbable that such aged persons of 75, 83, 68 and 85 years can commit the offence of rape. It has also been submitted that all the accused-persons are interrelated and as per prosecution version, they had not covered their faces, and were previously known to the complainant and his family, cannot commit the alleged offence of dacoity. It has also been submitted that although a long list has been given in the First Information Report, but nothing has been recovered from the possession of any of the accused. It has also been submitted that as per the First Information Report, there were witnesses of fact, namely, Kadir, Musahif, Hussain, Hasim, Shiv Ram, Zadda, but none of them have been produced in evidence. It has also been submitted that wife of the complainant, namely, Smt. Takdira, sons of the complainant, namely, Suleman and Sufiyaon, who also got alleged injuries have also not been examined by the prosecution. Therefore, a presumption should be drawn against the prosecution that had these witnesses been examined by the prosecution, they would not have supported the prosecution story. It has also been submitted that there are major contradictions in the statements of Sabira (PW-1), Rahisha (PW-2) and Hazi (PW-5), who are only witnesses of fact and they have also improved the story, which is neither mentioned in the First Information Report nor in the statement under section 161CrPC. Therefore, their evidence is not worth reliable. It has also been submitted that there are major contradictions in the statements of Sabira (PW-1), Rahisha (PW-2) and Hazi (PW-5), who are only witnesses of fact and they have also improved the story, which is neither mentioned in the First Information Report nor in the statement under section 161CrPC. Therefore, their evidence is not worth reliable. It has also been submitted that Sabira, who is the victim as well as eye-witness, who was subsequently admitted to hospital, had stated to the doctor that only four miscreants had entered into her house, but the names of such four persons have not been told, therefore, the presence of the present appellants is doubtful as well as the offences punishable under sections 395 and 397 IPC is not made out. It has also been submitted that the appellants were interrelated and were known to the complainant previously and many of them were aged about 68 to 85 years, therefore, it does not appear to be probable that they will commit dacoity or rape in the midnight in another village. It has also been submitted that admittedly appellant Ramjani and the brother of complainant, namely, Kadir had litigation, therefore, the appellants have been falsely implicated. It has also been submitted that the complainant Hazi (PW-5) has not narrated the said articles regarding which dacoity was committed. It has also been submitted that nowhere it has been stated that which of the assailants were armed with which weapons. In these circumstances, the said incident is totally doubtful and the appellants have been falsely implicated due to dispute of property. It has also been submitted that the witnesses of fact have failed to tell various material aspects due to which it appears that the whole story is concocted. 15. Learned Counsel for the appellants has relied Ramesh and others v. State 2004 CLJ 1877, in which the Division Bench of this Hon'ble Court has held as under Firstly, we have seen that right from the F.I.R. the prosecution case is that co-villagers Kallu and Bhelu saw the incident. 15. Learned Counsel for the appellants has relied Ramesh and others v. State 2004 CLJ 1877, in which the Division Bench of this Hon'ble Court has held as under Firstly, we have seen that right from the F.I.R. the prosecution case is that co-villagers Kallu and Bhelu saw the incident. It is pertinent to mention that neither of them were examined by the prosecution and the reason furnished by it for their non-examination which is contained in the examination in chief of Idris (PW-2), that on account of fear they and Abid were not prepared to depose against the appellants is untenable because Abid was examined by it as PW-10. In this connection, we would like to advert to the decision of the Apex Court reported in (State of U.P. v. Jaggo alias Jagdish AIR 1971 SC 1586 : 1971 Cri LJ 1173) wherein in paragraph 16 the Supreme Court has laid down that a mere averment by the prosecution in the form of an application that a witness has been won over is not sufficient and the said witness should be examined in Court. In our view, the failure of the prosecution to examine Kallu and Bhelu is another nail in the coffin of the prosecution. In this connection we would also like to advert to the provisions contained in section 114(g) of the Indian Evidence Act, which are to the effect that if evidence which could have been produced is not produced, the presumption would be that it would have gone against the party which withholds it. In our view, it would be reasonable to draw the said inference in this case. 16. Learned Counsel for the appellants has further relied upon Hem Raj and others v. State of Haryana 2005 (52) ACC 258 (SC) : 2005 (29) AIC 785, in which Hon'ble the Apex Court has held as under The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case having regard to the indisputable facts of this case. Amongst the independent witnesses, Kapur Singh was one, who was very much in the know of things from the beginning. Amongst the independent witnesses, Kapur Singh was one, who was very much in the know of things from the beginning. Kapur Singh is alleged to have been in the company of P.W.5 at a sweet stall and both of them after hearing the cries joined P.W.4 at Channi Chowk. He was one of those who kept the deceased on a cot and took the deceased to hospital. He was there in the hospital by the time the first I.O. P.W.9 went to the hospital. The evidence of the first I.O. reveals that the place of occurrence was pointed out to him by Kapur Singh. His statement was also recorded, though not immediately but later. The I.O. admitted that Kapur Singh was the eyewitness to the occurrence. In the FIR, he is referred to as the eye-witness along with P.W.5. Kapur Singh was present in the Court on 6.10.1997. The Addl. Public Prosecutor 'gave up' the examination of this witness stating that it was unnecessary. The Trial Court commented that he was won over by the accused and, therefore, he was not examined. There is no factual basis for this comment. The approach of the High Court is different. The High Court commented that his examination would only amount to 'proliferation' of direct evidence. But, we are unable to endorse this view of the High Court. To put a seal of approval on the prosecution's omission to examine a material witness who is unrelated to the deceased and who is supposed to know every detail of the incident on the ground of 'proliferation' of direct evidence is not a correct approach. The corroboration of the testimony of the related witnesses P.Ws. 4 and 5 by a known independent eye-witness could have strengthened the prosecution case, especially when the incident took place in a public place. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness Kapur Singh, would assume significance. This Court pointed out in Takhaji Hiraji v. Thakore Kubersing Chamansing and others (2001) 6 SCC 145 . However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness Kapur Singh, would assume significance. This Court pointed out in Takhaji Hiraji v. Thakore Kubersing Chamansing and others (2001) 6 SCC 145 . .......if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case, the Court ought to scrutinize the worth of the evidence adduced. The Court of facts must ask itself-whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the Court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the Court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. In the present case we find that there are at least 5 witnesses whose presence at the place of the incident and whose having seen the incident cannot be doubted at all. It is not even suggested by the defence that they were not present at the place of the incident and did not participate therein. 17. Learned Counsel for the appellants has further relied upon Yudhishtir v. The State of Madhya Pradesh 1973 (3) SCC 436, in which, Hon'ble the Apex Court has hefd as under When a particular fact deposed to by witnesses does not find mention both in the F.I.R. and in statements recorded under section 161, Cr.P.C, it is an improvement and it cannot be considered. 18. Learned AGA has defended the impugned order and has submitted that there was sufficient evidence on record to prove the guilt of the appellants and the said contradictions are of minor nature which do not carry any weight. It has also been submitted that the quality of evidence is to be seen (sic) the quantity, therefore, non-production of other witnesses is not fatal to the prosecution. 19. It has also been submitted that the quality of evidence is to be seen (sic) the quantity, therefore, non-production of other witnesses is not fatal to the prosecution. 19. Before entering into merits of the case, it is relevant to mention that the prosecution had named the twenty nine witnesses on the back of the charge-sheet. 20. Out of the aforesaid witnesses, only three witnesses of fact, namely, Smt. Sabira (PW-1), Smt. Rahisha (PW-2) and Hazi (PW-5) have been examined. There are injured witnesses, namely, Smt. Takdira (wife of the complainant), Sufiyaon (son) and Suleman (son), apart from other independent witnesses, namely, Kadir, Musahif, Hussain, Hasim, Zadda and Shiv Ram. It is also admitted that that Kadir is the real brother of the complainant Hazi. The prosecution has discharged all other witnesses of fact on the ground that they have been won over by the accused-persons. I find substance in the submission of learned Counsel for the appellants that the wife, sons and real brother cannot be won over by the appellants. In this way, there are only two injured witnesses and one complainant, whose evidence has to be scrutinized with due care and caution. 21. The appellants have been charged for the offences punishable under sections 395/397, 354 and 376 IPC. First of all the submissions regarding sections 395 and397 are being considered as follows. 22. As per the First Information Report version, there were 15-16 persons, who had came for the purpose of dacoity. The trial was conducted against ten persons and remaining persons were neither identified nor arrested. Out of the aforesaid ten persons, Bachcha, Basir, Sufiya alias Sufi were not found guilty and they have been acquitted. The present appellants have been convicted for the said offences punishable under sections 395/397 IPC. Admittedly, except the appellant-Makka, all other appellants are closely related to each other and are father and son. The miscreants were also having deadly weapons like gun, but none of the injured persons have received any firearm injury. For constituting the offences punishable under sections 395 and 397 IPC, the number of dacoits should be five or more persons in view of the definition given in section 391 IPC. Smt. Sabira (PW-1) was admitted to hospital on 26.01.1985, where she had stated to the doctor treating her that only four persons had came for dacoity. Dr. For constituting the offences punishable under sections 395 and 397 IPC, the number of dacoits should be five or more persons in view of the definition given in section 391 IPC. Smt. Sabira (PW-1) was admitted to hospital on 26.01.1985, where she had stated to the doctor treating her that only four persons had came for dacoity. Dr. Yashodhara Johari (PW-7) has also confirmed in her statement that Smt. Sabira (PW-1) had told her that four miscreants had came to her house. It is also relevant to mention that the names of aforesaid four persons were not told by Smt. Sabira (PW-1) to Dr. Yashodhara Johari (PW-7). No explanation has been given by Smt. Sabira (PW-1) as to how and why she told the doctor that only four miscreants had came for such an offence. This fact in itself creates a reasonable doubt about the presence of other accused-persons. It is also relevant to mention that the complainant as well as her daughters Smt. Sabira (PW-1) and Rahisha (PW-2) have named the present appellants in their statements on oath alongwith their parentage and name of village. It also appears from the cross-examination of Smt. Sabira (PW-1) that the present appellants used to come to their house and they reside in different villages which is about 3 to 5 "Koss" from the place of incident. Smt. Sabira (PW-1) has also admitted that appellants Ramjani, Javed and Wazahat have relationship in her village. She has explained the said relationship with the said persons in her cross-examination. It is also admitted that the appellants, who are named in the First Information Report had not covered their faces at the time of incident. It is also admitted that there was no dispute with Makka, Sirdar, Javed, Wazahad, Masahib and Ramjani. She has failed to tell as to which of the appellants were having guns or other arms. The list of robbed items has been given in the First Information Report itself which not only includes the jewellery, but also includes a large number of utensils including the petty items. In the First Information Report, twenty six items have been mentioned and from the aforesaid twenty six items, there are so many items, which are more than one and upto seven in number like tericot shirt, "Tahmad", Bed sheets, carpets and other things. In the First Information Report, twenty six items have been mentioned and from the aforesaid twenty six items, there are so many items, which are more than one and upto seven in number like tericot shirt, "Tahmad", Bed sheets, carpets and other things. Admittedly, none of the said robbed items has been recovered from the possession of any of the appellants. It appears to be unnautral and improbable that the appellants, who reside at a far distance place and have their relationship in the village of occurrence, will come for dacoity without any arms and ammunitions. It appears that the incident has been exaggerated by the complainant. 23. Similarly, Rahisha (PW-2) who is also the daughter of the complainant has also not assigned any weapon to any of the appellants. She has also not stated in her statement regarding the alleged articles, which have been robbed away by the appellants although Smt. Sabira (PW-1) has also not given any detail of alleged robbed articles in her examination-in-chief and the statement under section 161 CrPC. Even the complainant himself in his statement on oath has also not stated any of the articles which were robbed from his house. It has also not been stated by any of the aforesaid three witnesses of fact as to which of the article was taken away by which of the appellant. A simple statement has been given that the miscreants started dacoity. None of the witnesses of fact have corroborated the said twenty six items narrated in the First Information Report. Admittedly, Kadir, who is brother of the complainant is having litigation with Ramjani regarding the property of Bhaggal. There are various omissions in the statement under section 161 CrPC and it clearly appears that the witnesses have improved their version in their statements on oath. Rahisha (PW-2) has clearly admitted in her cross-examination that she had not told the Investigating Officer that which of the miscreants had beaten her. More surprisingly, she has also denied the relationship with Kadir while it is proved by the evidence on record that the Kadir and Hazi (complainant) are real brothers and they are sons of Gazza. It appears that the witnesses have concealed material facts from the Court. These witnesses have also not stated in their statement under section 161 CrPC as to which articles were robbed away by the present appellants. It appears that the witnesses have concealed material facts from the Court. These witnesses have also not stated in their statement under section 161 CrPC as to which articles were robbed away by the present appellants. For constituting the offence of the robbery, it is required to be proved that at the time of committing dacoity, the said person is put in fear of instant death, hurt or of wrongful restraint and by so putting in fear, induces the persons to tell up the things extorted. For constituting the offence punishable under section 397 IPC, it is required to prove that at the time of committing dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or admits to cause death or grievous hurt to any person. In the present case, there is no grievous hurt to any of the injured witnesses Smt. Sabira (PW-1) and Smt. Rahisha (PW-2). There is absolutely no injury to the complainant (Hazi). The presence or use of deadly weapon is also not proved. 24. From the statement of Hazi (PW-5), it appears that he is also trying to conceal the material facts in his cross-examination. He has admitted that Ramjani has two sister-in-law, but he does not know where they are married. He has denied in his statement that he had not told the Investigating Officer about the parentage and issues of Bhaggal. He has also denied in his statement that he had not told the names of husbands of the daughters of Bhaggal. He has also denied the fact that Kadir is his relative while the perusal of the charge-sheet shows that the parentage of Hazi is Gajja Gadi and the parentage of Kadir is also Gajja Gadi. Meaning thereby, they are real brothers, but the complainant Hazi (PW-5) has said that he has no relationship with Kadir. It is clear from the aforesaid fact that the complainant is also concealing the material facts in his cross-examination. The complainant has also denied the said litigation in Consolidation Court between Kadir and Ramjani, while it is proved fact that Kadir and Ramjani have litigation in the Consolidation Court regarding the property of Bhaggal. 25. Apart from above, there are other material contradictions in the statements of all the three witnesses of fact. The independent witnesses, namely, Kadir, Musahif, Hussain, Hasim, Zadda and Shiv Ram have not been examined. 25. Apart from above, there are other material contradictions in the statements of all the three witnesses of fact. The independent witnesses, namely, Kadir, Musahif, Hussain, Hasim, Zadda and Shiv Ram have not been examined. Apart from it, the other injured witnesses, namely, Smt. Takdira, Suleman and Sufiyaon have also not been examined on the ground that they have been won over by the appellants. To my opinion real brother, wife and real sons of the complainant cannot be won over by the appellants and because the prosecution has withheld the evidence of aforesaid persons, therefore, the inference under section 114(g)of the Evidence Act has to be drawn that their evidence would have gone against prosecution. In this regard, the law laid down in Ramesh and others v. State (supra) is fully applicable to the present set of facts. The aforesaid law is supported by the law laid down by Hon'ble the Apex Court in State of U.P. v. Jaggo alias Jagdish AIR 1971 SC 1586 , in which Hon'ble the Apex Court has held that mere averment by the prosecution in the form of an application that witnesses have been won over is not sufficient and the failure to examine such witnesses goes against the prosecution. In view of above, the circumstance that the appellants belongs to another village and have relationship in the village of incident, they had not covered their faces, they were previously known to the complainant and his family members, they had visited the house of the complainant on previous occasions also and none of the articles have been recovered from any of the appellant and the witnesses have also not stated in their statements in Court or in the statement under section 161 CrPC as to which of the appellant had robbed which of the articles and more particularly in view of the information given by Smt. Sabira (PW-1) to Dr. Yashodhara Johari (PW-7) that there were only four miscreants, the alleged dacoity and alleged attempt to cause death or grievous hurt is not proved. 26. The other charges levelled against the appellants are of rape and outraging the modesty of Smt. Sabira (PW-1), Smt. Rahisha (PW-2) and the wife of the complainant. 27. Yashodhara Johari (PW-7) that there were only four miscreants, the alleged dacoity and alleged attempt to cause death or grievous hurt is not proved. 26. The other charges levelled against the appellants are of rape and outraging the modesty of Smt. Sabira (PW-1), Smt. Rahisha (PW-2) and the wife of the complainant. 27. From the judicial decisions rendered by the Apex Court the law as regards the credibility of the testimony of prosecutrix may be summarized thus (i) There is no rule of law that corroboration is essential before there can be a conviction solely on the testimony of the prosecutrix. But as a matter of prudence, the necessity of corroboration must be present to the mind of the Judge. (ii) There may be circumstances in a given case which might make it safe to dispense with such a corroboration. (iii) On the other hand, there may be factors in a case tending to show that the testimony of the prosecutrix suffers from infirmities in a manner so as to make it either unsafe or impossible to base a finding of guilt to the same. Some of the salient factors of this type may briefly be stated that: (a) circumstances showing on the part of prosecutrix an animus against the accused; (b) where the question of want of consent is material, circumstances tending to show consent e.g. absence of material showing an attempt at resistance, absence of any marks of struggle; (c) attempt at improvement or exaggeration in the version as attempted by the prosecutrix; (d) conduct on the part of the prosecutrix inconsistency with the credibility of the version e.g. omission to make a disclosure at the earliest opportunity; (e) element of artificiality or unnaturalness in the story as attempted by the prosecutrix, and (f) absence of signs of rape in the findings of the medical examination or on chemical analysis. 28. It is not disputed that at the time of statement under section 313 CrPC, Musahif was aged about 85 years, Javed was aged about 75 years, Sirdar was aged about 83 years and Makka was aged about 68 years. It is also not disputed that Ramjani and Musahib, Wajahat and Javed and Sirdar and Alijaan are father and sons. In the First Information Report itself, it has not been stated that which of the present appellants committed rape with which of the daughter of the complainant. It is also not disputed that Ramjani and Musahib, Wajahat and Javed and Sirdar and Alijaan are father and sons. In the First Information Report itself, it has not been stated that which of the present appellants committed rape with which of the daughter of the complainant. Even in the statement under section 161 CrPC, the victims and the witnesses have also not stated as to which of the appellants had committed rape with which of the victim. Certainly, it is an important omission and it appears that Smt. Sabira (PW-1) and Rahisha (PW-2) have made an improvement in their statement before the Court. Hon'ble the Apex Court in Yudhishtir v. The State of Madhya Pradesh 1973 (3) SCC 436, has held that "when a particular fact deposed to by witnesses does not find mention both in the F.I.R. and in statements recorded under section 161, Cr.P.C, it is an improvement and it cannot be considered". 29. In view of the law laid down by Hon'ble the Apex Court, the said improvement has to be thrown away and cannot be considered. Apart from it, the circumstance that out of the seven appellants, six are father and sons and out of which the said fathers are aged about 75 years to 85 years. Both the alleged victims of rape have been medically examined, but they have received only simple injuries. Both the victims of alleged rape are married women and as stated above, all the accused-persons reside far away from the place of incident and they have their relationship in the village, where the incident took place. It is also admitted that they used to come to the house of the complainant and they all were well-known to the complainant as well as his daughters. In the present case, there are various factors which tend to show that the testimony of the prosecutrix suffers from various infirmities in order to make it quite unsafe or impossible to base a finding of guilt to the same. In the present case, the attempt has been made to exaggerate the version and there are various inconsistencies about the credibility of the version and certainly there is omission to make a disclosure at the earliest opportunity i.e. at the stage of F.I.R. and at the stage of statement under section161 CrPC. In the present case, the attempt has been made to exaggerate the version and there are various inconsistencies about the credibility of the version and certainly there is omission to make a disclosure at the earliest opportunity i.e. at the stage of F.I.R. and at the stage of statement under section161 CrPC. Admittedly, in the statement under section 161 CrPC, none of the victim of rape has stated in her statement as to which of the appellants committed rape with her. There also appears to be an element of artificiality and unnaturalness in the story as attempted by the victims of the present case. 30. As far as the signs of rape are concerned, Rahisha (PW-2) has been examined by Dr. Om Mehrotra (PW-4) on 26.1.1985 and one contusion on the back of chest, one contusion on lateral aspect left thigh above the knee found. In any way, the said injuries cannot be said to be sign of rape. Another victim of rape Smt. Sabira (PW-1) was examined at Queen Mary Hospital, Lucknow on 26.1.1985 and on the internal examination, slight bleeding was present superficial from anterior vaginal wall 2.5 cm inside. Dr. Yashodhara Johari (PW-7) has admitted in her statement that the Register of Medico-legal is not maintained in her hospital and the reference was not for Medico-legal examination but for need of surgery. Admittedly, the vaginal smear has not been taken and no pathological test has been conducted. None of the said doctor witnesses have stated in their statements that the said injuries of the said victims are possible during the course of rape or attempt to rape. Dr. Om Mehrotra (PW-4) has stated about the injuries of Rahisha (PW-2) that they might come by blunt object. 31. Accordingly, the said injuries are not the signs of rape and there is no finding of rape either in the physical examination or in the chemical analysis. Therefore, it is clear that there is an improvement and exaggeration in the version and there are also material inconsistencies in the statements of both the prosecutrix. Moreover, this fact cannot be denied that Musahif, Javed, Sirdar and Makka, who are old persons, aged about 68 years to 85 years may not be physically capable of committing rape. 32. Therefore, it is clear that there is an improvement and exaggeration in the version and there are also material inconsistencies in the statements of both the prosecutrix. Moreover, this fact cannot be denied that Musahif, Javed, Sirdar and Makka, who are old persons, aged about 68 years to 85 years may not be physically capable of committing rape. 32. As discussed above, nothing has been said specifically against the present appellants in the First Information Report or the statements under section 161 CrPC about outraging of modesty or rape by the witnesses. S.I. Bheema Singh Poriya (PVV-6) has also stated in his statement that the witnesses had not told him that who of the appellants had committed rape and who of the appellants had outraged their modesty. This witness has further stated that Hazi had also not told the names of the persons who had committed alleged rape or allegedly outraged modesty of his daughters. 33. As discussed above, it appears that the improvement has been made by the witnesses in their statements, which do not find place in the First Information Report or the statements under section 161 CrPC. Other injured witnesses as well as the scriber of First Information Report, the brother of the complainant who had lit the fire with a jaw to identify the miscreants and the said independent witnesses, who are the villagers, have also not been examined by the prosecution. The statements of Smt. Sabira (PW-1), Smt. Rahisha (PW-2) and Hazi (PW-5) contained so many discrepancies and contradictions. It is also proved that none of the appellants have been assigned any weapon in their hand nor they have been assigned any specific role in committing the said offences. The appellants are residents of another village and they have their relationships in the village of incident. It is improbable that they will come for dacoity without covering their faces by anything. It is also improbable that the sets of father and son will commit rape or outrage the modesty. Nothing has been recovered from the possession of the appellants and it is also proved that Kadir is the real brother of Hazi, but Hazi (PW-5) has denied this relationship for the basic reason that he is concealing material facts from the Court. It is also proved that there have been litigation between Kadir and Ramjani regarding the property of Bhaggal. It is also proved that there have been litigation between Kadir and Ramjani regarding the property of Bhaggal. The explanation of the prosecution that all other witnesses have been won over by the appellants do not depose the confidence because one of them is real brother of the complainant, one is wife, two are real sons and one is real "Bahnoi". The prosecution has withheld the material evidence without any sufficient reason. The testimony of prosecutrix suffers from infirmities and it is very much unsafe to base a finding of guilt to the same. An attempt and improvement and exaggeration in the prosecution version has been made by the witnesses and there are material omissions in the First Information Report as well as in the statement under section 161CrPC to disclose the said role of the appellants at the earliest opportunity. There is also absence of signs of rape in the findings of the medical examination and no chemical analysis has been made. From the aforesaid facts, the involvement of the present appellants is totally doubtful. It also appears that the said incident might have been committed by some unknown miscreants and the appellants have been implicated due to enmity as there is allegation in the statement under section 313 CrPC that Kadir and Hazi wanted to grab the property of Bhaggal, while Bhaggal has transferred bis property in the name of Ramjani one of the appellant. For the aforesaid facts and circumstances of the case, the appellants are entitled for benefit of doubt and the prosecution has failed to prove the guilt of the appellants beyond reasonable doubt. Accordingly, the appeal deserves to be allowed. 34. The appeal is allowed. The judgment passed in Sessions Trial No. 6/1986 State v. Ramjani and others, by Special and Additional District and Sessions Judge, Hardoi dated 4.12.1989 is set aside regarding the present appellants. The appellants are acquitted. Their sureties are discharged. Office is directed to send a copy of this judgment along with the lower Court record to the concerned Court at the earliest.