JUDGMENT Mrs. Ranjana Pandya, J. – Challenge in this appeal is to the judgement and order dated 20.08.2009, passed by Additional Sessions Judge, F.T.C., 1, Badaun in S.T. No. 20 of 2005 (State v. Ujjawal and Another) arising out of Crime No. 315 of 2003, under Section 376(2)(g) I.P.C., Police Station-Faizganj, Behta, District-Badaun, whereby accused-appellants were found guilty under Section 376 (2)(g) I.P.C. and each were sentenced to 10 years rigorous imprisonment with Rs. 5,000/- fine with default stipulation. 2. Brief facts of the case are that on 27.9.2003 a report was lodged by the informant Chandra Pal stating that he is the resident of Faizganj, Behta. His daughter-in-law got ill after delivery, hence the informant and his wife went to Delhi along with his daughter-in-law. The daughter of the informant i.e. the victim and another daughter-in-law of the informant were at home. All the sons of the informant live in Delhi and did the work of labour. On 18.9.2003 at about 9: 00 a.m., the victim was going to throw cow-dung, on the way the appellants Ujjawal and Nirdosh on the basis of gun and country made pistol gagged the mouth of the victim with cloth, took her in the maize field and raped her. This occurrence was witnessed by Munendra and Dalvir, who saw the accused persons taking away the victim in the maize fields. When the informant came back from Delhi, the victim narrated him the incident, at which he lodged the report. 3. P.W. 8, Dr. Beena Agrawal, conducted the medical examination of the victim. She did not find any external or internal injury on the body of the victim. Her vagina was admitting two fingers easily. The hymen was old torn and healed. There was no bleeding or discharge from the vagina. Slides of smear were prepared. This witness proved the medical report as Exhibit Ka-11 and supplementary report as Exhibit Ka-12. 4. The prosecution examined as many as eight witnesses. P.W. 1 is Dr. Neeta Chandrel, who conducted the pathological test. She did not find any sperm on the slides prepared. She proved the pathological report as Exhibit Ka-1. P.W. 2 is Chandra Pal, the informant, who proved the F.I.R. as Exhibit Ka-2. P.W. 3 is Dr. M.P. Gangwar, the Radiologist, who proved the x-ray report as Exhibit Ka-3 and x-ray plate as material Exhibit-1. P.W. 4 is the victim. She did not find any sperm on the slides prepared. She proved the pathological report as Exhibit Ka-1. P.W. 2 is Chandra Pal, the informant, who proved the F.I.R. as Exhibit Ka-2. P.W. 3 is Dr. M.P. Gangwar, the Radiologist, who proved the x-ray report as Exhibit Ka-3 and x-ray plate as material Exhibit-1. P.W. 4 is the victim. P.W. 5 is S.I. Amarpal Singh. He copied the F.I.R. in the C.D. He recorded the statement of the informant and inspected the place of incident. This witness proved the site plan as Exhibit Ka-4. Further, he recorded the statements of the witnesses. 5. On 19.10.2003, he recorded the statements of the accused persons and submitted the charge-sheet against the accused-appellants, which was marked as Exhibit Ka-5. On 29.9.2003 this witness seized and sealed the cloths of the victim and prepared the seizure memo and proved it as Exhibit Ka-6. On 7.11.2003, the victim was called to get her statement recorded under Section 164 Cr.P.C., but she could not come. Later on, the statement of the victim was recorded under Section 164 Cr.P.C., which was copied in the C.D. by this witness. Thereafter Section 376 was also added. 6. Later, this witness received the affidavit of Munendra Pal Singh, whose statement was re-recorded in the C.D., after that this witness was transferred, due to which the remaining investigation was conducted by S.I. Ajay Pal Singh P.W. 7, who perused the C.D. and submitted the charge-sheet against the accused-appellants, which was proved by this witness as Exhibit Ka-10. P.W. 6 is Constable Vijendra Singh, who scribed the chik report and proved the chik report as Exhibit Ka-7, further this witness proved the copy of C.D. as Exhibit Ka-8. P.W. 8 is Dr. Beena Agrawal, whose evidence has already been discussed by me. 7. After examining eight witnesses, the prosecution closed its evidence. Thereafter the statements of the accused-appellants were recorded under Section 313 Cr.P.C., in which they denied the occurrence and stated that they had been falsely implicated. The accused-appellants did not adduced any evidence. The defence examined D.W. 1 Harpal Singh and D.W. 2 Prakash, who tried to given evidence that the victim was friendly with the accused and the accused had been falsely implicated. 8. The accused-appellants did not adduced any evidence. The defence examined D.W. 1 Harpal Singh and D.W. 2 Prakash, who tried to given evidence that the victim was friendly with the accused and the accused had been falsely implicated. 8. After hearing counsel for the parties, learned lower court found the accused guilty and sentenced them as has been specified in Para 1 of the judgement. 9. Feeling aggrieved, the accused-appellants have come in appeal. 10. I have heard Shri R.P.S. Chauhan, learned counsel for the appellants, learned A.G.A. for the State, and perused the trial court record. 11. An argument has been advanced on behalf of the appellants that there is inordinate delay in lodging the F.I.R., inasmuch as the occurrence is said to have taken place on 18.9.2003 at 9: 00 a.m., whereas the report was lodged after about 9 days on 27.9.2003 at 9: 20 a.m. There is no explanation to the delay. As regard the delay is concerned, in the F.I.R. the informant has stated that he had gone to Delhi because his daughter-in-law was sick and when he returned from Delhi, the victim narrated the incident to him. Hence, he went to the police station to lodge the report. 12. As regards the delay in lodging the F.I.R. in 2007 (57) ACC 471 Ramdas and Others v. State of Maharashtra, the Hon'ble Apex Court has held that : “Mere delay in lodging the F.I.R. is not necessary fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice.” 13. The victim has stated that when her parents returned back from Delhi, she narrated the whole incident to her parents and she went with her father to lodge the report. The informant would be the best person who can explain the delay in lodging the F.I.R. The informant P.W. 2 Chandra Pal has not given an eye-witness account, but he has stated that his daughter-in-law was admitted in the Delhi Hospital, hence he had gone to Delhi because she had delivered a child by major operation. Further, the informant has stated that he had returned on 22.9.2003 from Delhi. Further, the informant has stated that he had returned on 22.9.2003 from Delhi. If the statement of this witness has taken to be true that he returned on 22.9.2003 from Delhi, there is no reason coming-forth from the side of the prosecution as to what prevented this witness from lodging the F.I.R. till 27.9.2003. This witness had to undergo the test of cross-examination, which was done to test his veracity, in which he stated that he had not returned home on 22.9.2003. He returned on 23.9.2003 in the evening. Even if he had returned on 23.9.2003, there is no explanation as to what prevented him from lodging the F.I.R. from 23.9.2003 to 27.9.2003. 14. Another glaring feature in the statement of this witness is that, he has stated that ^^fnukad 22-09-2003 dks eSa ?kj okil ugha vk;k FkkA 23-09-2003 dks 'kke dks ?kj okil vk;k FkkA ;g dguk xyr gS fd eSaus vius c;kuksa esa ;g crk;k gS fd eSa fnukad 22-09-2003 dks vius ?kj okil vk;k gwWaA ;fn eSaus 22-09-2003 dk c;ku fn;k gS rks og xyr gSA** 15. This witness tried to further improve and develop his statement. He further stated that when he returned, the victim did not narrate the incident to him, but she narrated the incident to her mother and her mother told the incident to the informant on the same night, when they returned. Even if this is taken to be correct, even then the F.I.R. is much delayed. Tried to give another explanation this witness has stated that he did not go in the night to lodge the report because of the fear of loot. 16. On the next day when he went to lodge the report, Sub-Inspector asked him to submit a written report. Although, he was accompanied by his son, but on that date his son did not scribe the report and the Sub-Inspector returned them by saying that come on next day. On the next day also, he did not file the written report because he was told by the police that the S.O. is taking charge, then he went on the 3rd day and gave the written report at the police station, but his report was not lodged on 27.9.2003. He has further stated that on 27.9.2003 his wife, victim and his son had accompanied him to the police station. He has further stated that on 27.9.2003 his wife, victim and his son had accompanied him to the police station. Mere saying that the informant went to the police station continuously for 3 days and his report was not lodged would not suffice, because something more should have been done. The prosecution could have called for the records from the police station, which was not done in this case, which compels the court to draw an adverse inference against the prosecution. This witness has stated that he want to Delhi to see his ailing daughter-in-law whereas in the F.I.R. he has stated that he took his ailing daughter himself to Delhi. 17. The informant has tried to explain the delay in vein and he has given all sorts of explanations, which cannot be believed and digestible by the Court. 18. In 2011 (74) ACC Page 556 Bhaiya Miyan @ Jardar Khan and another v. State of M.P., the Hon'ble Apex Court has held that : “If, the explanation for delay is difficult to believe, then the accused would be entitled to acquittal, if the other evidence is also not reliable and shaky.” 19. In 2003 (47) ACC Page 985 State of Karnataka v. Mapilla P.P. Soopi, the Hon'ble Apex Court has held that : “If, there is no explanation for the delay and no one arrives on the seen of occurrence despite alarm, if there are serious doubts of the testimony of the prosecutrix, then the accused would be entitled to acquittal.” Thus, in the present case since there is no explanation for the delay it would definitely be fatal for the prosecution. 20. The age of the victim has to be determined as per Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007, thus, in the absence of other evidence, the medical evidence has to be relied upon. The supplementary report of the victim states her to be about 19 years of age. Dr. Beena Agarwal, who has proved the supplementary report, has also stated her to be about 19 years of age. Thus, definitely she is above the age of consent. 21. The statement of the victim was recorded under Section 164 Cr.P.C., which is nothing but the previous statement of the victim in which she has stated that when she was returning from fields, she met Ujjawal and Nirdosh. Thus, definitely she is above the age of consent. 21. The statement of the victim was recorded under Section 164 Cr.P.C., which is nothing but the previous statement of the victim in which she has stated that when she was returning from fields, she met Ujjawal and Nirdosh. Ujjawal was armed with gun, whereas Nirdosh was armed with country made pistol. They took her in a maize field, gagged her mouth. First Ujjawal raped her twice and then Nirdosh raped her. When Nirdosh was raping her, Ujjawal stood on both of her hands, since her mouth was gagged, she could not raise alarm, even Nirdosh raped her twice. If a young man stands on the hands of a girl weighing only 33 Kg., there is no reason why she would not have sustained fracture or injuries on her hands. If the testimony of the prosecutrix before the court and her statement before the Magistrate recorded under Section 164 Cr.P.C. are contradictory, then it would make a dent in the prosecution case. 22. The victim supported the prosecution version in her examination-in-chief. The veracity of any witness can obviously be tested by cross-examination. This witness stated that after being raped she was returning home and she met Dalvir and Munendra on the way and she told them about the occurrence. She has stated that when the accused caught her, Munendra and Dalvir were coming, but they were threatened by the accused persons, hence they returned back. It has further been submitted that the accused had threatened Munendra and Dalvir that if they would tell anything to the parents of the victim, they would be killed. Hence, both the witnesses did not raise alarm. This witness is changing her version again and again, inasmuch as at places, she has stated that when she was going with the cow-dung, occurrence took place, whereas at some places she had stated that when she was returning the occurrence took place. 23. Tried to explain this factual aspect, she has stated that ^^esjh eq[; ijh{kk esa tks xkscj Mkyus tkus okyh ckr fy[kh gS og lgh ugha gSA eSa xkscj Mkydj okil vk jgh Fkh ;g ckr lgh gSA** Thus, as I have stated above, the witness is changing her statement in every breath. Tried to prove herself innocent, she has stated that both Ujjawal and Nirdosh caught her, while she was returning. Tried to prove herself innocent, she has stated that both Ujjawal and Nirdosh caught her, while she was returning. She had the container of cow-dung, she tried to hit the accused with the container, which fell from her hands. The accused Ujjawal caught her from behind and pressed her mouth, hence she could not raise alarm. 24. In the statement recorded under Section 164 Cr.P.C., the victim has stated that Ujjawal was having a gun and Nirdosh was having country made pistol, whereas in the statement before the court the witness has stated that Ujjawal was having a country made pistol whereas Nirdosh was having gun. She has further stated that when she returned, she met her sister-in-law, who asked her, at which she narrated the incident to her sister-in-law. Why everybody kept quiet is not digestible and palatable. Although, she has stated that she telephoned her parents from Kheda on 23.9.2003 and she has also stated that through Vinod, she telephoned her parents, who told her parents telephonically about the incident. She has also admitted that there was whispering in the village about the occurrence. The ladies also came to enquire about the occurrence and she told the incident to all the ladies, who enquired about the incident. 25. Now this witness has stated that she narrated the incident to her brother, who scribed the F.I.R., which she signed. To prove her innocence, this witness also stated that when the accused-appellants fled away, they took the cloth by which they gagged the mouth of the victim along with them. If this was the position, there was no reason why the accused while fleeing would also bother to take the cloth by which the mouth of the victim was gagged. Although Dalvir, Munendra, Nirmal Das, Rajpal were not examined before the court, although they were the witnesses, who could give independent evidence that they had seen the victim being taken away by the accused, because the victim has specifically stated that both Munendra and Dalvir had seen the accused taking away her. 26. No doubt, sole testimony of the prosecutrix in a rape cases if trustworthy can be sole basis of conviction, but if there are embezzlement and contradictions in her statement, the court would seek for corroboration from other evidence, it may be medical evidence. 26. No doubt, sole testimony of the prosecutrix in a rape cases if trustworthy can be sole basis of conviction, but if there are embezzlement and contradictions in her statement, the court would seek for corroboration from other evidence, it may be medical evidence. According to Doctor and medical report, the victim did not have any external or internal injuries. I am aware that although the occurrence is said to have taken place on 18.9.2003, and the victim was medically examined on 27.9.2003, but if the victim would have been gang-raped by two people, there is no reason why after 9 days she did not have swelling in her private parts and why she did not have fracture or injuries on her hands, especially when one of the accused stood with his complete weight on the hands of the victim. 27. In 2003 (46) ACC Page 278 Shiv Lochan v. State of U.P. it has been held that : “If the medical evidence does not support the prosecution evidence, which is shaky, no injury found on the person of the victim who was found to be used to sexual intercourse, it would be safe to acquit the accused.” 28. However, learned counsel for the appellant has castigated the statement of the accused recorded under Section 313 Cr.P.C., in which there is some discrepancies about the time of the occurrence, but I do not think by this the accused was prejudice in any way, hence this would not at all be material. 29. D.W. 1 Harpal has stated that the victim and Nirdosh were known to each other. They used to go together to study. Some love letters were between them too had been caught, hence the accused had been falsely implicated. D.W. 2 Prakash has stated that he did not see the accused molesting the victim nor we heard anything of this sort. 30. I think positive evidence can be very reliable as compared to the negative evidence, but since the prosecution has miserably failed to prove its case beyond reasonable doubt, the prosecution cannot take advantage of the weakness of the defence case. 31. Thus, in my opinion, as the victim is an interested partition and unreliable witness, who was a privy to the whole episode, therefore, to save her skin, she has narrated a fabricated version without lending assurance from any independent source. 31. Thus, in my opinion, as the victim is an interested partition and unreliable witness, who was a privy to the whole episode, therefore, to save her skin, she has narrated a fabricated version without lending assurance from any independent source. Her testimony was insufficient to hold the appellant guilty. As pointed out above, she had changed her version from time to time and, therefore, cannot be relied upon. This, she seems to have done to rectify her mistake committed by damsel under infatuation, which too far to perceive. The hymen being torn can be taken to be a prima facie evidence, on preponderance of possibility that the victim was used to carnal intercourse. 32. Thus, on the basis what has been stated and discussed above, I find that the learned lower court has misled itself in reaching to the conclusion that the accused is guilty for the offence charged. Thus, the accused is entitled to be acquitted and the appeal is liable to be allowed. Hence, the impugned conviction and sentence dated 20.08.2009, passed by Additional Sessions Judge, F.T.C., 1, Badaun in S.T. No. 20 of 2005 (State v. Ujjawal and Another) arising out of Crime No. 315 of 2003, under Section 376(2)(g) I.P.C., Police Station-Faizganj, Behta, District-Badaun is hereby set aside. 33. Accordingly, the appeal is allowed. The appellants are in jail. They shall be released forthwith in this case. The provisions of Section 437A Cr.P.C. shall be complied with. 34. Let a copy of this order be sent to the trial court concerned. Appeal allowed.