Judgment : Hon'ble Mrs. Ranjana Pandya, J. 1. Challenge in this appeal is to the judgment and order dated 20.9.2014 passed by Additional Sessions Judge, Court No. 1, Jhansi in S.T. No. 326 of 2012 (State of U.P. Vs. Mahesh and Others) and S.T. No. 79 of 2012 (State Vs. Neetu @ Netram and Others), under Sections 363, 366 and 376 I.P.C., Police Station-Kakarbai, District-Jhansi, arising out of Crime No. 96 of 2011, whereby Bhurey, Mahesh, Neetu @ Netram and Matey were found guilty under Section 376(2)(g) I.P.C. and sentenced to ten years rigorous imprisonment coupled with a fine of Rs. 10,000/- each. Further they were sentenced to five years rigorous imprisonment and Rs. 5,000/- fine under Section 366 I.P.C. with default stipulation. 2. Filtering out unnecessary details, the case of the prosecution is that as per the F.I.R. the accused Neetu @ Netram and Matey enticed away the victim on 9.2.2011 at 10 O'clock from her house. The informant and his family members were working in the fields, while the victim was alone in the house. Neetu and Matey were members of the dance party, who used to dance in the village. They had performed in the village of the informant for one month prior to the incident. The accused persons had stayed in the house of Deep Chandra and Jaipal of the same village. They were also distantly related to Deep Chandra. Many villagers had seen the accused taking away the victim, hence report was lodged. 3. Investigation was entrusted to P.W. 6 S.I. Abdul Aziz on 12.11.2011. He recorded the statement of the chick writer in the case diary on 17.12.2011. He also recorded the statement of the informant. He further recorded the statement of Shimmu, on whose pointing out the site plan was prepared which was proved as Exhibit Ka-8, and was copied in the case diary. On 18.12.2011 the parents of the victim accompanied with police went to the Garautha crossing, where the victim was found standing. She was recovered from the Garautha crossing and brought to the police station. Her statements were recorded. She told the police that the accused Bhure had taken her away, who had kidnapped her. On 22.12.2011, the statement of the victim was got recorded under Section 164 Cr.P.C., which was copied in the case diary. 4. She was recovered from the Garautha crossing and brought to the police station. Her statements were recorded. She told the police that the accused Bhure had taken her away, who had kidnapped her. On 22.12.2011, the statement of the victim was got recorded under Section 164 Cr.P.C., which was copied in the case diary. 4. After this, investigation was transferred to P.W. 5 Mahendra Prakash, who perused the statement of the victim recorded under Section 164 Cr.P.C. He perused the investigation conducted by his predecessor, copied the supplementary and pathological report of the victim in his case diary, submitted the charge-sheet against the accused, which was proved by this witness. The victim was medically examined by Dr. Alpana Bartharia P.W. 4, who did not find any external or internal injuries on the body of the victim. Her hymen was torn and vagina was admitting two fingers easily. This witness proved the medical report and supplementary report. 5. The prosecution examined as many as seven witnesses. P.W. 1 is Gyan Swaroop @ Kathuley, the informant, who proved the written report as Exhibit Ka-1. P.W. 2 is the victim. P.W. 3 in S.T. No. 326 of 2012 is Constable Hari Om, who proved the chick report as Exhibit Ka-3 and copy of general diary as Exhibit Ka-4, whereas in S.T. No. 79 of 2012 P.W. 3 is Shimmu. P.W. 4 in both the S.T.S is Dr. Alpana Bartharia. P.W. 5 in S.T. No. 326 of 2012 is Mahendra Prakash. In S.T. No. 79 of 2012 P.W. 5 is S.I. Abdul Aziz. In the same case P.W. 6 is Mahendra Pratap Singh and P.W. 7 is Constable Hari Om, whereas in S.T. No. 326 of 2012 P.W. 6 is S.I. Abdul Aziz and P.W. 7 is Constable Gyanendra Prakash. 6. After examining seven witnesses the prosecution closed its evidence. 7. The statements of the accused persons were recorded under Section 313 Cr.P.C. in both the cases, where the accused persons have stated that the victim is a girl of easy virtues and the accused had been falsely implicated in the occurrence. They are innocent, however no defence was adduced by the accused-appellants. 8. The learned lower court after hearing the learned counsels for the parties and perusing the record, found the accused guilty and convicted them as specified in para 1 of the judgment. 9. Feeling aggrieved, the accused-appellants have come in appeal. They are innocent, however no defence was adduced by the accused-appellants. 8. The learned lower court after hearing the learned counsels for the parties and perusing the record, found the accused guilty and convicted them as specified in para 1 of the judgment. 9. Feeling aggrieved, the accused-appellants have come in appeal. 10. I have heard the learned counsel for the parties and perused the record of the trial court. 11. It has been contended on behalf of the appellants that there is inordinate delay in lodging the F.I.R., which goes to strike at the root of the case. It has further been contended that the occurrence is said to have taken place on 9.12.2011. The written report is dated 12.11.2011, as per chick report, report was lodged on 12.11.2011 at 16:30 hrs. The distance of the police station from the place of occurrence being 2 kms. Since there is no reasonable and plausible explanation for the delay, hence benefit should go to the accused-appellants. 12. As far as delay is concerned, perusal of the written report makes it clear that in the written report there is over-writing on the date and 11 has been over-written as 12. The Original exhibits are available in S.T. No. 326 of 2012. The statements of the witnesses were recorded separately in both the Sessions Trial. 13. As far as delay in lodging the F.I.R. is concerned the present case is not one, in which the informant has said that the reputation of the family was at stake due to which the informant was hesitant to lodge the F.I.R. 14. In State of Himanchal Pradesh Vs. Prem Singh A.I.R. 2009 (SC) Page 1010, the Hon'ble Apex Court has considered the issue at length and observed as under : "This is trite law that Delay in lodging FIR more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Thus, FIR is to be filed more promptly and if there is any delay, the prosecution must furnish a satisfactory explanation for the same for the reason that in case the substratum of the evidence given by the complainant/informant is found to be unreliable, the prosecution case has to be rejected in its entirety." 15. In 2005 SCC (Criminal) Page 410 Sri Narayan Shah & Another Vs. State of Tripura the Hon'ble Apex Court has held that : "Mere delay in lodging the F.I.R. is really of no consequence, if the reason is explained because in cases of rape generally the family remains reluctant to report the matter to the police to save shame and prestige of the family." 16. As far as version of the informant is concerned, he has stated that he was working as labourer at Delhi, his parents informed him telephonically that the victim was missing. On the next date at 12 O'Clock he reached home, when he was told by the villagers that Neetu and Matey had enticed away the girl. He kept tracing the girl and lodged the report on 12.11.2011. In cross-examination, he has admitted that he does not know the meaning of the words "Mahoday" "Janpad" "Son of" and "Anurodh", because he is illiterate. He had not dictated these words to the scribe and he cannot explain how these words crept in the report. He had also stated that he did not dictate English dates in his report. But he has definitely stated that on 9th, he was informed about the occurrence and on 10th, in noon he reached home. 17. This witness could not tell the telephone number of his father. However, there is inordinate delay in lodging the F.I.R., which casts a shadow of doubt on the whole prosecution case. 18. In cases of rape, the sole testimony of the prosecutrix, if trust-worthy, reliable and probable can form the basis of conviction. 17. This witness could not tell the telephone number of his father. However, there is inordinate delay in lodging the F.I.R., which casts a shadow of doubt on the whole prosecution case. 18. In cases of rape, the sole testimony of the prosecutrix, if trust-worthy, reliable and probable can form the basis of conviction. If, the statement of the prosecutrix is quite natural, inspires confidence, then her evidence should be accepted, because in the traditional non permissible bonds of society of India, no girl or woman of self respect and dignity would depose falsely implicating somebody of ravishing her chastity by sacrificing and jeopardizing her future prospect of getting married with a suitable match, not only she would be sacrificing her future prospect of getting married and having a family life, but also would invite the wrath of being ostracized and outcast from the society, she belongs to and also from her family circle, as has been laid down by the Hon'ble Apex Court in AIR 2006 (SC) 508 Vishnu @ Undriya Vs. State of Maharashtra decided on 24.11.2005. 19. Gyan Swaroop is although the father of the victim, but his testimony cannot be ignored just on the ground of his relationship with the victim. Obviously, where the statement of any witness is shaky and unreliable, the court definitely seeks for corroboration. Gyan Swaroop, P.W. 1 has stated that when his daughter was missing from the house, his parents, his daughter and two young sons were present in the house. What the victim P.W. 2 has said about this aspect of the matter is also the concern of the court, because the victim has stated that when the accused Neetu and Matey came to her house, she was alone in the house. Her parents had gone to work at Delhi. This is against the statement of father of the victim. According to whom the grand parents and some children were present at the house at the time of the incident. 20. P.W. 1 Gyan Swroop, the father of the victim is not a witness to the incident of rape. However, the victim P.W. 2 has stated an absolutely new theory before the court and she has behaved as if only she is witty and has brains in the world. 20. P.W. 1 Gyan Swroop, the father of the victim is not a witness to the incident of rape. However, the victim P.W. 2 has stated an absolutely new theory before the court and she has behaved as if only she is witty and has brains in the world. It will not be out of place to mention here that all the witnesses were examined separately in S.T. No. 326 of 2012 and S.T. No. 79 of 2012. If one is telling a lie he has to tell another hundred lies to cover up his first lie. But in case of truthful witness, no matter how many times he gives the statement there will only be minor contradictions and the main incident will remain the same. 21. The victim inducing a new story has stated that Neetu and Matey came to her house and asked for water. She gave them water and they asked her to accompany them to Delhi to go to her parents. She refused to go with them, at this both raped her in her house. Now this is a new story exaggerated by this victim, which neither finds place in the statement under Section 164 Cr.P.C. nor in the F.I.R. 22. This victim P.W. 2 has stated a series of lies in a pre- planned manner. She has admitted that inspite of the fact that Neetu and Matey raped her inside the house. She accompanied them to Gursarai, because they were threatening her. This is an absolutely improbable version because as per prosecution version when the victim was taken away the grand parents and siblings of the victim were at the house. Besides victim has not stated that Neetu and Matey were armed with any weapon She has admitted that she went by different conveyance i.e. by Bus from her house to Gursarai. There were many people sitting in the Bus, but she did not complain to anybody. She has gone to the extent of saying that when she got out of the bus, even driver and conductor of the bus were not there. 23. A fanciful story has been put forth by the victim that initially Neetu and Matey took her to Gursarai from where the accused appellant Mahesh took her to Noida. At Noida Mahesh and Bhurey raped her. She was kept at Noida for 9 days. 23. A fanciful story has been put forth by the victim that initially Neetu and Matey took her to Gursarai from where the accused appellant Mahesh took her to Noida. At Noida Mahesh and Bhurey raped her. She was kept at Noida for 9 days. She went to Noida by Train in which many people were sitting, but she did not raise any alarm. She got down at the bus stand and met the police personnel also, but still she did not raise any alarm. When she was returning from Noida, she met many people including police personnel, but she did not make any complaint to them also. It appears that this witness was interested to go for an outing, for which her father refused, hence she went away with the accused persons as is evident from her statement, in which she has stated that she felt bad when her father told her not to go out because there was nobody in the house to cook food. 24. As far as medical report on this point is concerned, Dr. Alpana Bartharia did not find any injuries on the external or internal parts of the body as is also evident from the medical report and the supplementary report. 25. The victim has stated that when she went for medical examination, she had stated her age to the Doctor. The Doctor had written her correct age. She has also stated that she is illiterate, she stated her age as she was told about her age by her father. Thus, she had mentioned her age to be 15 years in her statement recorded under Section 164 Cr.P.C. on 22.12.2011 before the Magistrate and 16 years in her statement recorded in S.T. No. 326 of 2012 on 23.11.2013 and 16 years in her statement recorded on 20.4.2012 in S.T. No. 79 of 2012. 26. As referred earlier, the statement of this victim was once recorded on 20.4.2012 in S.T. No. 79 of 2012 and secondly her statement was recorded on 23.11.2013 in S.T. No. 326 of 2012 i.e. there was about a difference of one year in recording both the statements. It is trite law that under the provision of Evidence Act, the previous evidence of a witness can specifically be put to the witness. It is trite law that under the provision of Evidence Act, the previous evidence of a witness can specifically be put to the witness. This was done in the present case and this witness had to undergo the test of cross-examination, which could not be undergone successfully by this witness. Thus, the victim has already being misleading the court as regards her age is concerned. No doubt she is a rustic illiterate villager but, if she was so innocent she would not have varied her age like that. 27. She has gone to the extent of denying what she stated on 20.4.2012 before the trial court in S.T. No. 79 of 2012. There is no reason why the trial court would record her incorrect statement in the court. In the statement recorded before the court in S.T. No. 79 of 2012, she had stated that she telephoned her father from Bhure's phone, but she pleaded ignorance about the telephone number of her father. 28. Another very eye-opening statement given by the witness on 20.4.2012 in S.T. No. 79 of 2012 is reproduced as follows : ^^mlds ckn Hkwjs eq>s jsyxkM+h }kjk emjkuhiqj jsyos LVs'ku NksM+ x;k vkSj eq>s 200 :i;k fn;k vkSj dgk fd ;gha ij [kM+h jgks rqEgkjs ikik vk tk;saxs rks pyh tkukA ogka ij esjs ikik o esjs nks ekek vk;s vkSj eq>s vius xkao ys x;sA iqfyl ls esjh dksbZ eqykdkr ugha gqbZA ckn esa esjs ikik Fkkuk ddjobZ ys x;sA^^ When this statement was put to the witness on 23.11.2013, when her statement was being recorded in S.T. No. 326 of 2012, she denied to have given any statement and could not say how it was written. Thus, the victim has built up many stones, which are all improbable and unreliable and has indirectly said indirectly that the trial judge recorded her statement as wrong. 29. As far as recovery is concerned there is no recovery memo on record. The accused-appellants Bhurey and Mahesh are not named in the F.I.R. Perusal of the statement of the victim under Section 164 Cr.P.C. reveals that she has stated that Neetu and Matey took her till Gursarai where she met Mahesh and Bhurey, who wanted the victim to marry their Mausa. She refused and telephoned her father. The accused persons purchased clothes and Sari and took her to the temple. She refused and telephoned her father. The accused persons purchased clothes and Sari and took her to the temple. They wanted her to marry, but she refused at which Mahesh, Bhurey, Neetu and Matey raped her and made her sit in a bus, after that she reached home. This type of fairy tale is narrated by the victim, whose statement is not supported by the medical evidence and is not palateable. 30. It is also well settled law that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. 31. Bruises, abrasions and scratches on the victim especially on the forearms, wrists, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. 32. In this case, the victim has come up with a case of gang rape and although she was examined on 19.12.2011 at least some signs of resistance should definitely have been found by the Doctor. Paramount consideration of the court is to ensure that miscarriage of justice is prevented. Miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent person. Thus, the medical evidence does not corroborate the prosecution version. 33. As far as the aspect of consent and age of the victim is concerned, in the F.I.R. the age of the victim has been mentioned to be 15 years. The informant went to the extent of saying in S.T. No. 326 of 2012 that if, age of the victim has been mentioned to be 15 years in the report, it is incorrect. The victim P.W. 2 herself has stated that the age as mentioned by the Doctor is correct. She is illiterate and is capable to understand the right and the wrong and her own welfare. As per the medical evidence, (which is admissible under Rule 12 of the Juvenile Justice [Care and Protection of Children], Act 2007) in the absence of academic record her age is about 18 years to 19 years. She is illiterate and is capable to understand the right and the wrong and her own welfare. As per the medical evidence, (which is admissible under Rule 12 of the Juvenile Justice [Care and Protection of Children], Act 2007) in the absence of academic record her age is about 18 years to 19 years. Hence, at the time of occurrence, she was quite above the age of the consent and she was a consenting party. Even the factum of the place and manner in which the victim is said to have been recovered is doubtful. In 2015 (3JIC) Page 383 SC State of M.P. Vs. Munna @ Shambhu Nath, the Hon'ble Apex Court has held that if the girl is found to be above 16 years of age, she would be competent to give her consent, thus, question of rape will not arise, if consensual intercourse has been proved. 34. I am also aware of the fact that even if a young lady is having an affair with the accused, she would not submit herself to have sex with other than the man/boy she loves, but this is a peculiar case in which after being raped by two people she went alongwith them willingly and did not raise any alarm anywhere for 10 days, although she travelled by public conveyance to many districts during her 10 days stay with the accused. 35. Thus, this is a clear case of consent especially when her statement in S.T. No. 79 of 2012 and S.T. No. 326 of 2011 both are contradictory and it appears that nowhere the witness has dared to bring the correct facts before the court. I am constrained to state that this is a case practically without any reliable evidence and the prosecution case is a bundle of incorrect facts. 36. Thus, the evidence of the victim is shaky, unreliable, not worthy of credence and the prosecution has miserably failed to prove the case against the appellants. 37. Thus, on the basis what has been stated above, I find that the learned lower court has misled itself in reaching to the conclusion that the accused-appellants are guilty for the offence charged. Thus, the accused-appellants are entitled to be acquitted and the appeal is liable to be allowed. 37. Thus, on the basis what has been stated above, I find that the learned lower court has misled itself in reaching to the conclusion that the accused-appellants are guilty for the offence charged. Thus, the accused-appellants are entitled to be acquitted and the appeal is liable to be allowed. Hence the impugned judgment of conviction and sentence dated 20.9.2014 passed by Additional Sessions Judge, Court No. 1, Jhansi in S.T. No. 326 of 2012 (State of U.P. Vs. Mahesh and Others) and S.T. No. 79 of 2012 (State Vs. Neetu @ Netram and Others), under Sections 363, 366 and 376 I.P.C., Police Station-Kakarbai, District-Jhansi, are hereby set aside. 38. Accordingly, the appeal is allowed. 39. The appellants are on bail. Their bail bonds are cancelled and the sureties are discharged. However, the appellants are directed to comply with the provision of Section 437-A Cr.P.C. 40. Let a copy of this order be sent to the trial court concerned. ——————