JUDGMENT Hon’ble Harsh Kumar, J.—The present two appeals have been filed against the judgment and order dated 15.9.2005 passed by Additional Sessions Judge, F.T.C. No. 4, Banda in Sessions Trial No. 60 of 2005 “State v. Kallu Kanchhi and Kallu Kahar”, under Sections 452, 376, 504, 506 I.P.C., Case Crime No. 139 of 2004, P.S. Giranwa, District Banda, by which the accused appellant of Criminal Appeal No. 4168 of 2005 Kallu Kanchhi was convicted for the offence under Section 114 I.P.C. and sentence with five years rigorous imprisonment and Rs. 3,000/- fine and accused appellant of Criminal Appeal No. 4840 of 2005 Kallu Kahar was convicted for the offence under Sections 376 and 450 I.P.C. and sentenced with ten years rigorous imprisonment and Rs. 6,000/- fine under Section 376 I.P.C. and five years rigorous imprisonment and Rs. 3,000/- fine under Section 450 I.P.C. with respective default clauses. 2. The F.I.R. of this case was lodged by prosecutrix on 21.8.2004 at 2:10 p.m. with the averments that, “on 12.8.2004 at about 10:00 p.m. when she was sleeping all alone in her house, as her husband was out to Punjab for earning livelihood, both the accused appellants armed with fire-arms entered in her house by opening the door which was bolted by KUNDI from inside by inserting their hands, caught hold of her and when she tried to raise alarm she was over-powered and was threatened of life and while accused appellant Kallu Kanchhi remain standing there with pistol in his hand, the appellant Kallu Kahar committed rape on her and when they left by rear door she raised alarm upon which her sister-in-law (Jethani) Munni Bai and brother-in-law (Jeth) Raj Bahadur as well as persons of village and neighborhood arrived there and saw the two culprits going out from the house of victim. It is also alleged that when the brother-in-law of prosecutrix/victim asked the appellants Kallu Kanchhi and Kallu Kahar that they have committed a wrong, they threatened him of life in case the matter is reported.” 3. Upon investigation, charge-sheet was submitted against the two accused-appellants under Sections 452, 376, 504, 506 I.P.C. and the case was committed to Sessions. The Sessions Judge, Banda framed charges under Sections 450 and 376 I.P.C. against Kallu Kahar and under Sections 450 and 114 I.P.C. against Kallu Kanchhi. The accused-appellants denied from charges and claimed trial. 4. Upon investigation, charge-sheet was submitted against the two accused-appellants under Sections 452, 376, 504, 506 I.P.C. and the case was committed to Sessions. The Sessions Judge, Banda framed charges under Sections 450 and 376 I.P.C. against Kallu Kahar and under Sections 450 and 114 I.P.C. against Kallu Kanchhi. The accused-appellants denied from charges and claimed trial. 4. The prosecution in order to prove its case has produced Raj Bahadur, the Jeth of prosecutrix as P.W.-1, prosecutrix as P.W.-2, Medical Officer Dr. Smt. R.D. Singh as P.W.-3, Head Constable Raj Kishore as P.W.-4 and Investigating Officer Sabhapati Yadav as P.W.-5. After completion of prosecution evidence, the statements of accused-appellants were recorded under Section 313 Cr.P.C. The accused-appellants did not produce any witness in defence evidence but filed documentary evidence, the certified copy of F.I.R. of Case Crime No. 101 of 1987 as well as the certified copy of judgment dated 9.1.1991 in above matter in Criminal Case No. 638/IX/1990 per list 47/B. 5. Heard learned counsel for the appellants in two appeals, learned A.G.A. for the State and perused the record. 6. Heard learned counsel for the appellants in two appeals, learned A.G.A. for the State and perused the record. 6. Learned counsel for the appellants contended that impugned judgment and order of conviction is wrong on facts and law; that the prosecution failed to give any explanation for lodging the F.I.R. after inordinate delay of 9 days from the occurrence while the husband of the prosecutrix, who was alleged to be out of station had arrived the very next day; that there are material contradictions in the statement of prosecutrix; that the prosecution has failed to produce the husband and mother-in-law of prosecutrix as well as any independent eye-witness of the occurrence while according to the F.I.R. on her alarm several persons of village and neighbourhood assembled at the spot and allegedly seen the accused persons coming out of the house of prosecutrix, as has also been stated by prosecutrix in her statement on oath before the trial Court; that P.W.-1 Raj Bahadur and his wife Munni Devi are closely and doubly related with the prosecutrix as Munni Devi is real sister of prosecutrix while Raj Bahadur P.W.-1 is real brother of husband of prosecutrix and the real sister of prosecutrix has been married to real brother of her husband and thus Raj Bahadur and Munni Devi are real Jeth, Jethani as well as real Bahan, Bahnoi of the prosecutrix; that the medical report does not support the prosecution case and is in contradiction with the averments made in F.I.R. as no bodily injury is alleged to have been found on the person of prosecutrix; that it is proved from the evidence on record that prosecutrix was having illicit relations with P.W.-1 Raj Bahadur (her Jeth/Bahnoi); that the husband of prosecutrix was living out side for earning livelihood and had made the prosecutrix to reside in the house situated inside the village but due to illicit relationship with P.W.-1 Raj Bahadur (her Behnoi/Jeth), in absence of her husband she came to live in the house situated in Purwa adjoining to the house of P.W.-1 Raj Bahadur; that since accused-appellant Kallu Kahar had reported the husband of prosecutrix about the illicit relationship between prosecutrix and Raj Bahadur, due to enmity P.W.-1 Raj Bahadur has got him falsely implicated; that apart from it the father-in-law of prosecutrix (father of P.W.-1 Raj Bahadur) had lodged a false F.I.R. against accused-appellant Kallu Kachchi and five others at Case Crime No. 101 of 1987 in which all the accused persons were acquitted vide judgment and order dated 9.1.1991 and so the P.W.-1 Raj Bahadur was having enmity with accused-appellant Kallu Kachchi and since accused-appellant Kallu Kahar joins him in cultivation, the P.W.-1 Raj Bahadur has falsely implicated both of them in order to settle score against the accused-appellant Kallu Kachchi due to enmity and against Kallu Kahar for reporting his illicit relationship with prosecutrix to the husband of prosecutrix as well as for being the associate of accused-appellant Kallu Kachchi; that Investigating Officer has not recorded the statement of husband of prosecutrix even under Section 161 Cr.P.C. and has not mentioned his name as a prosecution witness in the charge-sheet; that the prosecution has failed to produce Vijay Bahadur, the husband of prosecutrix, Munni Devi, the real sister/Jethani of prosecutrix, and village Pradhan etc. who allegedly arrived at the spot and seen the accused persons coming out of the house; that for not producing above material as well as independent witnesses, there is sufficient ground for drawing adverse inference against the prosecution for not producing the best evidence in his possession; that there are material contradictions in prosecution evidence as no source of light is mentioned in the F.I.R. and by way of improvement at one place it has been alleged that the light of a lamp (Diya) was there on the spot while on the other place the light of Brass Dhibari has been stated; that similarly at one place it has been stated by prosecutrix that the accused persons unbolted the inside Kundi of southern door from outside while in her statement under Section 164 Cr.P.C. she has stated that they broken the Kundi; that P.W.-1 and 2 Raj Bahadur and prosecutrix have stated that after committing rape by accused-appellant Kallu Kahar upon both the accused-appellants left from the rear/northern door the prosecutrix raised alarm, on which Raj Bahadur and Munni Devi arrived and seen the two accused-appellants standing in front of their adjoining home while prosecutrix kept standing on northern door of her house and when P.W.-1 Raj Bahadur asked the accused persons that they have committed wrong and will have to face consequences, they threatened him; that the entire prosecution story false is highly improbable as at the time of occurrence in the month of August (12.8.2004) the people usually continues movements till late in the night and while the house of accused-appellant Kallu Kachchi is adjoining in the East to the house of prosecutrix, the accused are alleged to have entered from the front door through Khalihan of the village at 10:00 p.m. while opted its rear door for leaving; that in view of the nature of offence in such matters despite availability of opportunity of making entrance from nearer and rear door with comparatively lonely surroundings, the alleged entrance of accused persons from front door is highly improbable and similarly after committing the alleged offence and leaving by rear door, their conduct of keeping themselves standing with the northern wall of the house of accused-appellant Kallu Kachchi and not attempting to hide themselves by entering inside his house with the door at few steps is again improbable, and may not be believed particularly in absence of any reliable evidence; that in any case, there is no motive or evidence against the accused-appellant Kallu Kachchi of his being abettor of the offence and there is nothing to show that he abetted the co-accused Kallu Kahar to commit rape on the prosecutrix; that learned trial Court without considering the above arguments has acted wrongly in believing the untrustworthy evidence of the prosecutrix and most interested witness P.W.-1 Raj Bahadur, in holding the appellants guilty, without considering that there is presumption of innocent of accused he/they may not be convicted unless the charges are proved against them by cogent, independent and trustworthy evidence to the hilt beyond reasonable doubt; that the trial Court has imposed sentence very excessively; that though the prosecution has failed to prove charges against appellants, if the Court finds otherwise their sentence may be reduced upto the period already undergone in view of the law laid down by the Apex Court in the cases of Raj Kumar @ Raju Yadav @ Raj Kumar Yadav v. State of Bihar, (2006) 9 SCC 589 and Ravinder v. State of M.P., (2006) 9SCC 590. 7. Per contra, learned A.G.A. supported the impugned judgment and order of conviction and contended that there is no material contradiction in the prosecution evidence; that since the husband was not an eye-witness, he was not required to be produced as witness; that it is wrong to say that the husband did not support the prosecution case in view of the fact that he alongwith his mother accompanied the prosecutrix to the police station for lodging F.I.R.; that the testimony of P.W.-1 Raj Bahadur may not be discarded because he was most natural and available eye-witness; that since the prosecutrix is a married woman and rape was committed on her on pistol point so on the basis of medical examination report which was conducted after 10 days, it may not be inferred that rape was not committed on her; that in the matters of rape the statement of prosecutrix alone is sufficient for conviction and in such matters the independent witness may not be expected; that there is no reason for false implication; that the appeals have been filed with wrong and baseless allegations and are liable to be dismissed. 8. Upon hearing learned counsel for the parties and perusal of record, I find that as per F.I.R. the husband of prosecutrix had gone to Punjab for two months for earning livelihood by doing work as labour and on 12.8.2004 when the prosecutrix was sleeping in her house, at about 10:00 p.m., the accused-appellants entered her house after unbolting the Southern door (opening the Kundi from outside by inserting hand inside) and accused-appellant Kallu Kahar started committing rape on her and after committing rape when they left by the rear Northern door, she raised alarm on which her Jeth, Jethani Munni Devi and Raj Bahadur, Village Pradhan and several persons of village and neighbourhood arrived and seen the accused going out of her house. The P.W.-1 Raj Bahadur has stated in his statement on oath at page 3 that he had seen the accused running from northern door from a distance of 6-7 steps and stayed by the side of house of accused Kallu Kachchi when he told them that they have committed wrong and will have to face the consequences. The P.W.-1 has also stated that upon raising the alarm by him, Hira Lal Pradhan, Ram Baboo, Mool Chand, Prem Jamadar etc. The P.W.-1 has also stated that upon raising the alarm by him, Hira Lal Pradhan, Ram Baboo, Mool Chand, Prem Jamadar etc. 15-20 persons had arrived apart from which the prosecutrix had also come out of her house. He has also stated that on hearing the voice of prosecutrix, firstly his wife awaked and made him to awake and thereafter they came out of his house by Southern door and entered the house of prosecutrix by Southern door and saw the running accused persons from a distance of 6-7 steps and after the incident he informed his brother Vijay Bahadur, the husband of prosecutrix by telephone on 13.8.2004 and he as well as the mother-in-law of prosecutrix arrived home on 14.8.2004. The P.W.-2 the prosecutrix has stated that she has two residential houses, one in the village and other in Purwa (township). At page 11 she has stated that by the noise of opening of door by accused-appellants, she did not awake and was over-powered by accused during her sleep who started to commit rape for 10 minutes, in contradiction to the averments made in F.I.R. that upon entrance of accused persons, she had awaken. She has further stated that when the people of village arrived the accused appellants Kallu Kachchi and Kallu Kahar after making exit from her house, made themselves standing by the side of house of prosecutrix, at a few steps. 9. Upon analysis of above evidence on record and hearing the arguments of both the parties, I find that it may not be disputed that in matters relating to rape which are bound to be committed in isolation, the independent witness of the incident of commission of rape may not be expected and so the statement of prosecutrix itself may be sufficient to establish the charges. However, the statement of prosecutrix being the interested witness may not be believed as gospel truth and her statement is to be considered with great care and caution with other evidence on record. The law of probability will always apply to the facts and circumstances of each case. 10. However, the statement of prosecutrix being the interested witness may not be believed as gospel truth and her statement is to be considered with great care and caution with other evidence on record. The law of probability will always apply to the facts and circumstances of each case. 10. Upon analysis of evidence on record, it is pertinent to mention the following aspects : (i) An ordinarily prudent person who is living adjacent to the house of prosecutrix and to whom a shorter way with loneliness to enter her house from rear door is available, may not be expected to choose the longer route and front door enhancing the possibility of his being seen/noticed by the village people or passersby. (ii) The Kundi of main door towards South was allegedly opened by accused persons by inserting the hands from outside. It is highly improbable for a person to unbolt the Kundi which is admittedly a chain type Kundi inside the door, by a person from outside. (iii) The two door leaves of main door after being bolted from inside by Kundi, may not have such a wide gap that the Kundi may be unbolted from outside, not only in view of the incident in question but otherwise also in view of safety and security reasons, because in such case, any miscreant may enter the house during night and take away all valuables and other articles. Even in case of such a wide gap a lady who was all alone (as her husband and mother-in-law were out of station) may not be expected to be so careless in leaving the main door without putting a lock over the Kundi for safety and security of valuables and articles of house. (iv) Even if the prosecution version is believed that the prosecutrix was raped by accused-appellants, it is quite natural that after leaving of the miscreants, and getting relieved of the alleged terror created by them on pistol point, firstly she would have taken some time in putting all her clothes in order, before raising alarm in partly disrobed and ruined condition which may be as short as at least 2 minutes. (v) As per statement of P.W.-1 Raj Bahadur, upon hearing the voice of the prosecutrix, firstly his wife Munni Devi awaked from sleep, and then she awaked P.W.-1 and thereafter by opening their main door in South they rushed to the adjoining house of prosecutrix and allegedly not only seen appellants running out and further he on coming out from rear and Northern door also seen them standing by the side of their house at a few steps, when on his asking for the consequences he was allegedly threatened by appellants. (vi) In above circumstances the P.W.-1 Raj Bahadur and his wife would have taken at least 5 to 10 minutes in arriving upto the place of occurrence and till then it may not be expected from any person/miscreant of ordinary prudence as well as the accused-appellants as the case may be, to keep themselves standing for getting seen and identified as culprit persons. (vii) Even on believing the prosecutrix with regard to entrance of appellants from Southern door by unbolting the Kundi from out side (on account of it having not been locked even for safety and security), in order to commit rape on the prosecutrix, considering the nature of crime of rape, the accused would have certainly bolted the door by Kundi from inside, as they are not supposed to have dared to commit rape by keeping the entrance door open for anybody or P.W.-1 to come from adjoining house and catch him red-handed in the mid of crime or being seen by some passerby from the open door. After committing the rape when the accused allegedly left by rear and Northern door, they are not supposed to reopen the Southern door so as to facilitate the arrival of P.W.-1 on alarm to be raised by prosecutrix and prosecutrix does not say that with raising alarm, she also opened the Southern door, and so the arrival of P.W.-1 and his wife immediately after the incident in the house of prosecutrix is also doubtful and there is every possibility of the opening of Southern door, upon their arrival and knocking of the door, which would also have taken further one minute or two. (viii) Usually in every crime, after committing rape, theft or any other offence, the accused leaves the place of occurrence with an intention to hide himself as well as his identity and in view of the facts and circumstances mentioned hereinbefore the accused appellants had enough time to disappear in the darkness of night by entering in their house which is adjoining to the house of prosecutrix (in East) as per site plant Ext-A-7, and the contention that after fleeing from the spot they kept themselves standing at few steps by the side of Northern wall of their house, till arrival of P.W.-1, Village Pradhan and other people of village so that they may be identified as the miscreants, may not be believed under any imagination. (ix) The village Pradhan and other persons who assembled there may not have assembled on alarm of prosecutrix from inside of her house on which arrival of only the arrival of P.W.-1 and his wife is possible and the village Pradhan and other persons may have arrived only on second call/alarm from outside the house. P.W.-1 Raj Bahadur in his examination-in-chief at page 13 of paper-book has stated that when he reached with his wife, the accused were running towards the room of Kallu Kanchhi and ^^eSauss 'kksj fd;k rks 'kksj djus ij iz/kku ghjkyky] ckcwjke vkfn igqqqWp x;^^ . In the circumstnaces when the incident is not alleged to be broad day light incident when above persons could be in Khalihan or nearby place, rather is an incident after 10:00 p.m. when people may be sleeping inside their houses, the arrival of above persons would have taken some more time and the contention that accused appellants still kept standing till their arrival is highly improbable and may not be believed. (x) When the incident of rape came to the knowledge of village people and Pradhan and the husband of prosecutrix also arrived one day after the incident, no plausible reason has been assigned for lodging F.I.R. after 8 days. (x) When the incident of rape came to the knowledge of village people and Pradhan and the husband of prosecutrix also arrived one day after the incident, no plausible reason has been assigned for lodging F.I.R. after 8 days. (xi) In view of the prosecution case, if the accused/culprits were identified on the spot and kept themselves standing outside the house, at a distance of 15 steps (As per site-plan A-7), in ordinary course the P.W.-1, Jeth of prosecutrix under anger for the crime committed by them, could have committed mar-peet with miscreants and at least some scuffle could have taken place with the accused and the conduct of P.W.-1 in mere asking the miscreants that they have done wrong is quite unnatural and unbecoming of a family member (Jeth) of prosecutrix. (xii) There is no evidence at all that the accused-appellants were seen at the time of entering in the house of prosecutrix or were going out from it, of any independent witness or of persons who had allegedly assembled there. 11. When the husband of prosecutrix had arrived on 14.8.2004 as stated by his brother P.W.-1 Raj Bahadur, the delay in lodging of F.I.R. on 21.8.2004 is found to have not been properly explained. It is also pertinent to mention that the trial Court has ignored the medical report which do not support the prosecution case on the ground of medical examination has been conducted after 10 days and the prosecutrix being married lady. It is noteworthy that the delay was on the part of the prosecutrix herself and she may not be given benefit of her own wrong. Moreover in absence of any evidence of rape in medical examination report, due to delay or otherwise, it may not be presumed that evidence would have disappeared due to lapse of time and rape would have been committed. 12. The husband and mother-in-law of prosecutrix may not be the eye-witness of the occurrence but would have been concerned with the rape having been committed with their wife/daughter-in-law and were essential witnesses to adduce their hearsay evidence. The non-production of husband, mother-in-law as well as sister/Jethani and independent persons viz. village Pradhan Hira Lal, Ram Baboo etc., who allegedly seen the accused persons who kept standing at 15 steps after leaving from the house after occurrence, makes sufficient ground for drawing adverse inference against the prosecution. The non-production of husband, mother-in-law as well as sister/Jethani and independent persons viz. village Pradhan Hira Lal, Ram Baboo etc., who allegedly seen the accused persons who kept standing at 15 steps after leaving from the house after occurrence, makes sufficient ground for drawing adverse inference against the prosecution. In the case of Gopal, Krishnaji Ketkar v. Mahomed Haji Latif and others, 1968 AIR 1413, a Three Judges Bench of Apex Court has held that: “Where a party in possession of the best evidence, which would throw light on the issue in controversy withholds it - Court ought to draw an adverse inference against him notwithstanding that onus of proof does not lie on him.” 13. It is also contended that in criminal case registered on the F.I.R. lodged by father of P.W.-1 and father-in-law of P.W.-2 against Kallu Kachchi and five others they were acquitted, which is proved from documentary evidence filed by defence per list 46/B (which are certified copies of judicial records and need not be proved by any other evidence). It is also alleged that the accused-appellant Kallu Kahar had reported the husband of prosecutrix about the illicit relationship between prosecutrix and P.W.-1 Raj Bahadur. In view of above facts, the possibility of false implication of accused persons in the case of rape at the instance of P.W.-1 Raj Bahadur may not be ruled out. 14. The evidence on record does not show any evidence of offence under Section 114 I.P.C. against the accused-appellant Kallu Kachchi particularly when he has been acquitted of the charges under Section 450 I.P.C. The nature of offence of rape allegedly committed by Kallu Kahar may not be supposed to have been committed on the alleged abetment of Kallu Kanchhi. The mere allegation that he had accompanied with Kallu Kahar with pistol in his hands is not supported by any other evidence and he is not alleged to have committed the offence in common intention with accused-appellant Kallu Kahar. 15. Upon analysis of entire oral and documentary evidence on record, I am of the considered view that prosecution story is highly improbable and unbelievable and the prosecution has failed to establish charges framed against accused-appellants by any trustworthy, cogent, reliable and independent evidence beyond reasonable doubt and to the hilt. 15. Upon analysis of entire oral and documentary evidence on record, I am of the considered view that prosecution story is highly improbable and unbelievable and the prosecution has failed to establish charges framed against accused-appellants by any trustworthy, cogent, reliable and independent evidence beyond reasonable doubt and to the hilt. The evidence of P.W.-1 Raj Bahadur and P.W.-2 prosecutrix may not be relied on account of material contradictions and improbabilities therein as discussed above as well as being the evidence of a most interested persons particularly in absence of any corroborative evidence of any independent witness. 16. In view of the discussions made above, the appeals are liable to be allowed and impugned judgment and order of conviction and sentence is liable to be set-aside. 17. Both the appeals are allowed accordingly and the impugned judgment and order of conviction and sentence of appellants Kallu Kachchi and Kallu Kahar dated 15.9.2015 passed by Additional Sessions Judge, F.T.C. No. 4, Banda is set aside and the accused-appellant Kallu Kanchhi is held not guilty of the offences under Section 114 IPC and accused-appellant Kallu Kahar is held not guilty of the offences under Sections 376 and 450 I.P.C. respectively. 18. The prosecution case stands failed and the accused appellants Kallu Kachchi and Kallu Kahar are acquitted of the charges under Section 114 IPC and Sections 376 and 450 I.P.C. respectively. 19. The accused-appellants are on bail. They need not to surrender. Their bail bonds and surety bonds are cancelled and sureties stand discharged. 20. The amount of fine, if any, deposited by the appellants or any of them will be returned to them on their application, without any delay. 21. Let the lower Court record be sent to the Court below alongwith copy of this judgment and order.