JUDGMENT : Pratyush Kumar, J. 1. The aforesaid appeals filed separately on behalf of accused-appellants are directed against the judgment and orders dated 7.11.2014 passed by the First Additional Sessions Judge, Court No. 1, Saharanpur in S.T. No. 402 of 2012 (State vs. Mumtaj @ Muntyaz and Others), whereby the appellants have been convicted under sections 366/34, 376(2)(G), IPC and sentenced to undergo rigorous imprisonment of 10 years each on both the counts. They have also been fined with Rs. 2,000/- each on both the counts. In default of payment of fine they have been directed to undergo further rigorous imprisonment of two years on both the counts. Both the appellants, by the same judgment, have been acquitted from the charges framed against them under sections 363, 323/149 and 120B, IPC. Non-appellants/ co-accused Mumtaj @ Muntyaz and Shaukeen S/o Mannu have also been acquitted from all the charges framed against them. 2. Heard learned counsel for the appellants, learned A.G.A. for the State and perused the record of the case. 3. The facts of the present case giving rise to the present appeal may be summarized as under:- That Yaseen gave a written report dated 13.5.2011 addressed to S.H.O. P.S. Deoband, District Saharanpur stating therein that on 23.4.2011 at 7.00 a.m. his daughter (hereinafter referred as the victim) had gone to attend the call of nature in the grove nearby the village. When she was on her way towards Talheri, appellant Shaukeen tricked her to inhale stupefying substance, co-accused Mumtaj alias Chhota, Nakli, Ayyub and Shaukeen S/o Mannu took his daughter in unconscious state to an unknown destination by Ambassador Car of white colour. Sattar, Shahbaz and other villagers had seen the incident and chased them, but they succeeded in escaping from there. He made an extensive search for his daughter and also informed the police of P.S. Deoband, but his report was not lodged. He prayed for suitable action against the accused persons. 4. At this check FIR was scribed at P.S. Deoband on 13.5.2011 at 10.30 a.m. Case Crime No. 295/11 under sections 363, 366, IPC was registered and investigation was handed over to S.I. Indrapal Singh, who examined the witnesses, inspected the spot, arrested the accused persons and recovered the victim got her medically examined, thereafter her statement under Section 164, Cr.P.C. was recorded and charge sheet was submitted. 5. 5. The appellants, co-accused Mumtaj @ Muntyaz, Shaukeen S/o Mannu were charged under sections 366/149, 323/149, 376(2)(G), IPC jointly. They were further charged under sections 363, 120B, IPC. They denied the charges and claimed to be tried. 6. In order to prove the charges on behalf of prosecution besides documentary evidence eight witnesses were examined. In the defence one witness was examined. 7. Case of the defence was of simple denial. 8. Yaseen, PW-1 is the first informant and father of the victim. He has proved written report, Exhibit Ka-1 and substantiated the prosecution version. 9. Victim, PW-2 has stated that she knew Shaukeen, Nakli, Ayyub, Mumtaj and Shaukeen S/o Mannu. Two years ago when she was going to relieve herself in the field nearby the grove, Shaukeen asked her to help in lifting a bundle of the grass. When she helped him, he tricked her to smell something to make her semi-unconscious. Other accused took her in the Ambassador Car of white colour. They had taken her to Ambala, kept on a Rathan, there Nakli, Ayyub and Shaukeen had committed rape with her, others used to beat her. When after a month Shaukeen S/o Mumtaj brought her to Deoband railway station, they were caught by the police. She has proved her statement recorded under section 164, Cr.P.C. Exhibit Ka-3. 10. Abdul Sattar, PW-3 has supported the prosecution version. 11. Constable Dharampal Singh, PW-4 is the scribe of check FIR. He has proved the check FIR, Exhibit Ka-4, copy of the report of the General Diary, Exhibit Ka-5. 12. Dr. Surendra Singh, PW-5 is the Radiologist under whose supervision she was X-rayed. He has proved X-ray report, Exhibit Ka-6. 13. Dr. Mamta Sodhi, PW-6 has medically examined the victim on 23.5.2011. She has found no mark of injury either on her person or on her private parts. She was found by her to be habitual to sexual intercourse. She has proved medical examination report, Exhibit Ka-7 and supplementary report Exhibit Ka-8. She has opined that age of the victim was above 18 years. 14. Sanjeev Kumar, PW-7 has proved the extract of family register, Exhibit Ka-9. 15. S.I. Indrapal Singh, PW-8 is the Investigating Officer. He gave details of the steps taken in the course of investigation and proved site plans and charge sheet, Exhibit Ka-10 to Ka-14. 16. She has opined that age of the victim was above 18 years. 14. Sanjeev Kumar, PW-7 has proved the extract of family register, Exhibit Ka-9. 15. S.I. Indrapal Singh, PW-8 is the Investigating Officer. He gave details of the steps taken in the course of investigation and proved site plans and charge sheet, Exhibit Ka-10 to Ka-14. 16. The accused persons in their statements recorded under Section 313, Cr.P.C. have denied the facts stated by the prosecution witnesses. 17. In the defence Faiyaz Ahmad, DW-1 has been examined, who has deposed that Ayyub was teacher in Almahadul Islami Institution. On 23.4.2011 he was present in the Institution and stayed in the hostel. 18. Learned trial Judge after hearing the arguments had convicted the present appellants and acquitted rest as above. 19. In support of the appeal the learned counsel for the appellants have submitted that there was love affair between the appellant and the victim. All four accused were father and sons. Due to enmity they have been falsely implicated. It was not natural and probable that father and sons, real brothers together would commit rape on the same time with the same girl. His next argument is that FIR was lodged with 20 days' delay without any explanation. His third argument is that medical evidence does not support the prosecution version. His fourth argument is that there are material contradictions in the testimonies of the prosecution witnesses. 20. On behalf of State-Respondent these arguments have been repelled and it has been submitted that learned trial Judge has recorded correct findings of facts, well substantiated from the record, he has given cogent reasons in support thereof. Appeals are devoid of merit and deserves to be dismissed. During the arguments following points for determination arise:- 1. Whether FIR was lodged with delay without satisfactory explanation, if so its effect; 2. Whether evidence of prosecutrix is trustworthy, if so its effect; 3. Whether case of defence is made out on the test of preponderance of probability and judgment suffers from illegal findings. Point No. 1 (i) According to prosecution version, prosecutrix was kidnapped on 23.4.2011 at 7.00 a.m. FIR was lodged on 13.5.2011 at 10.30 a.m. Explanation tendered by the first informant is that after coming to know of kidnapping of his daughter he had gone to police station, gave the written report, which was lodged. Point No. 1 (i) According to prosecution version, prosecutrix was kidnapped on 23.4.2011 at 7.00 a.m. FIR was lodged on 13.5.2011 at 10.30 a.m. Explanation tendered by the first informant is that after coming to know of kidnapping of his daughter he had gone to police station, gave the written report, which was lodged. Subsequently, on 23.5.2011 when her daughter was recovered, he gave another written report. (ii) Question is whether to accept this explanation or consider the plea raised by the defence. Hon'ble Apex Court has attached great importance to prompt lodging of FIR vide Jai Prakash Singh vs. State of Bihar, 2012 (77) ACC 245. In the case of Khedu Mohton and Others vs. State of Bihar, AIR 1971 SC 66 Hon'ble Apex Court has given way to verify the truthfulness of the explanation for the delay in FIR tendered by the prosecution. According to the Hon'ble Apex Court it is a simple thing to contend, but it has to be established by calling for the necessary records from the police station to substantiate the explanation. (iii) In the present case during the cross examination first informant has claimed that first written report was handed over by him at the police station. It was very easy for the prosecution to call the clerk constable, who was at the duty on that day at the relevant time, but this has not been done. In such a serious matter prosecution has not cared to produce the link evidence, in absence thereof I do not think the explanation given by the first informant, PW-1 is satisfactory, thus, FIR has been lodged with great delay, which admits possibility of embellishments, consultation and on account of enmity false implication. The effect of this is very genesis of prosecution version becomes doubtful. Point no. 1 is decided accordingly. Point No. 2 (i) Yaseen, PW-1, father of the first informant has not seen the occurrence. Abdul Sattar, PW-3 has claimed to have seen the incident of kidnapping. He is real elder brother of the first informant Yaseen that means uncle of the victim. Had he seen the occurrence, he would have raised the alarm. Abadi was near. It was not difficult to chase the kidnappers by taking help of the police, but in the present case he pretends to chase the car on foot. He is real elder brother of the first informant Yaseen that means uncle of the victim. Had he seen the occurrence, he would have raised the alarm. Abadi was near. It was not difficult to chase the kidnappers by taking help of the police, but in the present case he pretends to chase the car on foot. Thereafter informed his younger brother, who did nothing as found it at point no. 1, therefore, evidence of Abdul Sattar is of no significance. (ii) Only statement of prosecutrix requires careful scrutiny. She had not disclosed the fact to the Magistrate, that she was going to the field to attend the call of nature. This omission also finds place in her statement recorded under Section 161, Cr.P.C. Other material omission is that she had not stated before the Investigating Officer that she was tricked into inhaling some stupefying substance before she was kidnapped. She has stated in her statement recorded under section 164, Cr.P.C. that after she went to help Shaukeen in lifting a bundle of grass, he closed her mouth and made her sit in the car. Here also she has not stated about inhalation of stupefying substance. Her statements about sojourn at Ambala are also in consistence. According to her, Mumtaj and Shaukeen son of Mumtaj did not say anything to her. She was found at Ambala by her uncle Sattar. At that time she was with Shaukeen. These omissions and contradictions touch the prosecution version on the point of kidnapping, her sojourn in confinement and commission of rape. When asked about contradictory statements, she has stated that police had threatened her to depose so. I do not think her explanation is correct. Police has shown her to have been recovered by them at railway station, Deoband with Shaukeen. On material facts statement of prosecutrix is contradictory as also inconsistent. (iii) Medical evidence consisting of statement of Dr. Mamta Sodhi, PW-6 along with exhibit Ka-7, Ka-8 reveals that there was no mark of external injury on her person. No mark of injury was found on her private parts. She was found habitual to sexual intercourse. She was aged above 18 years of age. When considered in the light of arguments submitted by learned counsel for the appellants, the grounds raised by them appear to be well substantiated and I do not think statement of prosecutrix, PW-2 is trustworthy. No mark of injury was found on her private parts. She was found habitual to sexual intercourse. She was aged above 18 years of age. When considered in the light of arguments submitted by learned counsel for the appellants, the grounds raised by them appear to be well substantiated and I do not think statement of prosecutrix, PW-2 is trustworthy. Learned trial Judge has not appreciated her evidence in accordance with law and material on record. Point no. 2 is decided accordingly. Point No. 3 (i) Though in view of findings recorded in reference to point nos. 1 & 2, this point does not require to be adjudicated upon, however, to place correct factual position on record I notice that co-accused Nakli had lodged an FIR about the kidnapping of the niece of Mumtaj against Kallu. Though the first informant has denied that he had lodged the first information report at the behest of Kallu, but his simple denial when taken into consideration with the observations made in reference to point nos. 1 & 2 is examined, his denial appears to be empty denial with no truth therein. 21. As above, appeals have substance and the impugned judgment is full of erroneous findings, against weight of material on record and law. It cannot be sustained, hence, appeals are allowed. Impugned judgment and orders as also conviction and sentences of the appellants are set aside. 22. Appellants Ayyub and Shaukeen are acquitted from the charges framed under sections 366/34, 376(2)(g), IPC. They are in jail. If they are not wanted in any other case, they be released forthwith provided they file a personal bond and two sureties each in the like amount in view of the provisions contained in section 437-A, Cr.P.C. 23. Office is directed to communicate this order to the court concerned and to send back the record to the court below. ——————