Judgment : Hon'ble Mrs. Ranjana Pandya, J. 1. Challenge in this appeal is to the Judgment and order dated 27.11.2010 passed by the Additional Sessions Judge, Court No. 7, Bareily (State Vs. Munna Deevana and others) in S.T. No. 215 of 2010 under Section 376 I.P.C. Thana Baradari, Bareily whereby the accused appellants Munna Deevana and Mustaq were found guilty under Section 376 (2) I.P.C. and sentenced to 10 years rigorous imprisonment and Rs.10,000/- fine each with default stipulation. 2. The prosecution case in brief is that the father of the victim, namely, Nasim Khan lodged a report on 12.6.2009 that he lives with his daughter aged 17 years. He has two small children Mohd. Taliv and Mohd. Ujair, who lived with him. He is a widower. The prevailing night at 2.30 a.m. in the night, the accused appellant Munna Deevana accompanied by another boy entered the house of the informant and carried away his daughter. They took her in a nearby field and both raped her. On hearing the shrieks of his daughter, he went out of the house. He saw Munna Deevana and the other boy fleeing away. He could identify the other boy if he saw him. His daughter wept and narrated the whole incident to him. He tried to trace the culprits but he could not trace them. Hence, he lodged the report. 3. On the basis of this written report, Constable Clerk 976 G.R. Gautam (P.W.5) scribed the chik report, which was proved as Ext.Ka-7 on the basis of which G.D. was also written and proved as Ext.Ka-8. Investigation of the matter was entrusted to S.I. Raghunandan Singh (P.W.4), who copied the chik report on 12.6.2009 in the case diary. He recorded the statement of Constable clerk G.R. Gautam. The medical report of the victim was received which was entered in the C.D. The statement of the victim was recorded by the witness. On her pointing out, the spot was inspected and site plan was prepared and proved by this witness as Ext.Ka-4. On 14.6.2009, accused Munna Deevana was arrested and his statements was recorded. On 19.6.2009, the statement of the informant Naseem Khan was recorded. Further the statement of Ubaig and Mohsin were recorded. On her pointing out, the spot was inspected and site plan was prepared and proved by this witness as Ext.Ka-4. On 14.6.2009, accused Munna Deevana was arrested and his statements was recorded. On 19.6.2009, the statement of the informant Naseem Khan was recorded. Further the statement of Ubaig and Mohsin were recorded. In the presence of witnesses Asad Khan and Bhura Khan at the residence of the informant, the clothes of the victim were taken into custody by the witness and recovery memo was prepared, which was proved as Ext. Ka-5. On 2.7.2009, the statement of Mustaq was recorded. On 19.7.2009, the pathological and X-ray report of the victim was received, which was copied in the case diary. On 5.8.2009, the statement of witness Ujair was recorded. The investigation ended into a charge sheet which was proved by this witness as Ext. Ka-6. 4. The prosecution examined as many as five witnesses. P.W. 1 is the informant Naseem Khan, who proved the written report as Ext. Ka1. P.W. 2 is the victim. P.W. 3 is Dr. Sarika Singh, who examined the victim. She did not find any injury on the internal parts of the victim. The hymen was torn at 3 O'clock position, which was slightly bleeding on touch. The lower part of the hymen at 6 O'clock position and was of red colour. The vagina was admitting one finger. Slides were prepared and sent for examination. This witness proved the medical report as Ext. Ka-2 and the supplementary report as Ext. Ka-3. The statement of P.W. 4 Raghu Nath Singh and P.W.5 Constable Clerk G.R. Gautam has already been discussed by me. 5. After examining five witnesses, the prosecution closed its evidence. The statement of the accused was recorded under Section 313 Cr.P.C. in which the accused appellants denied the occurrence. The accused Mustaq has stated that the informant wanted to usurp his house, hence, he has falsely implicated this accused. His parents were blind and since he was sent to jail, his parents were ousted from the house. The informant is used to filing such reports. The accused Munna Deevana, while denying the occurrence, has stated that the house of Mustaq was usurped by the informant after turning out his blind parents. The house of this accused appellant was also usurped his mother being alone. Hence, he has been falsely implicated. The informant is used to filing such reports. The accused Munna Deevana, while denying the occurrence, has stated that the house of Mustaq was usurped by the informant after turning out his blind parents. The house of this accused appellant was also usurped his mother being alone. Hence, he has been falsely implicated. The accused did not adduce any evidence in defence. 6. The learned lower court, after hearing counsel for the parties, passed the impugned conviction and sentence. Feeling aggrieved, the accused have come up in appeal. 7. I have heard the learned counsel for the parties and perused the trial court record. 8. Counsel for the appellants has submitted that the whole prosecution theory is unreliable, undigestable and the conviction is bad in law as the prosecution has miserably failed to prove its case beyond reasonable doubt. 9. Per contra learned A.G.A. has submitted that conviction is well founded and based on credible evidence adduced by the prosecution, hence, the appeal deserves rejection. 10. Perusal of the Chik report Ext.Ka-7 reveals that the report was lodged on 12.6.2009 at 21.3.30 hours distance of the police station from the place of occurrence being 1 1/2 kms whereas the occurrence is said to have been taken place in the intervening night on 11/12.6.2009 virtually on 12.6.2009 at 2.30 in the night. As far as the delay is concerned, in the report, the applicant has stated that he was trying to trace the rapists with the aid of his neighbours but they were not seen anywhere, hence, after that report was lodged. Delay in lodging the F.I.R. in a rape case would not be very fatal because in cases of rape on an unmarried girl, the reputation of the family, the facts that the girl has to be married are all kept in mind before lodging the report at the police station. In this regard, Nasim Khan has stated that he tried to trace the miscreants along with the neighbours but they could not be traced. After that, they proceeded to the police station and lodged the report because initially they went to the Kaka Tola Police Chowki, who directed him to go to police station Baradari to lodge the report due to which the informant proceeded to the police station Baradari where he lodged the report which was dictated to Naim Khan. After that, they proceeded to the police station and lodged the report because initially they went to the Kaka Tola Police Chowki, who directed him to go to police station Baradari to lodge the report due to which the informant proceeded to the police station Baradari where he lodged the report which was dictated to Naim Khan. As far as the delay is concerned, the informant (P.W.1) and the victim were put to very lengthy and tough cross-examination in which explaining the delay he has said that he was perturbed, hence, there was slight delay in lodging the F.I.R. The informant has also stated that initially, they went to the police chowki. Sometime was taken at the police chowki. They were returned back and they went again to the police station. The victim has stated that when she accompanied her father went to the police Chowki, the police personnel asked them to come after some time and asked them to lodge the report at the police station. After that report was lodged. Thus, the delay in lodging the F.I.R. has been satisfactorily explained. 11. As far as the age of the victim is concerned as per the F.I.R., she was aged about 17 years. At the relevant time, consent for rape was 16 years. The word "consent" has been interpreted by the Hon'ble Apex Court in the case of Kaini Rajan Vs. State of Kerala, (2013) 9 SCC 113 . Paras 26, 27 & 28 of this Judgment read as follows:- 26. "Consent" is stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of "consent", for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. An inference as to consent can be drawn if only based on evidence or probabilities of the case. 27. It has been further held that the consent is intended by Sections 375 and 376 I.P.C. should not be under a misconception of fact. 28. In the case of Deelip Singh alias Dilip Kumar Vs. An inference as to consent can be drawn if only based on evidence or probabilities of the case. 27. It has been further held that the consent is intended by Sections 375 and 376 I.P.C. should not be under a misconception of fact. 28. In the case of Deelip Singh alias Dilip Kumar Vs. State of Bihar, 2005 1 SCC 88 , Hon'ble the Apex Court has held that:- "In the matter of consent, the court has to see whether the person giving the consent had gone it under fear of injury or misconception of fact and the court should also be satisfied that the person doing the act, i.e, alleged offender is conscious of the fact or should have reason but think that but for the fear or misconception, the consent would not have been given." 12. It is the admitted case of the prosecution that the victim was sleeping inside her house along with the brothers and her father when she was picked up by the appellants, taken her to fields and raped. Perusal of the F.I.R. makes it clear that only accused Munna Deevana has been named in the F.I.R. and the name of the co-accused appellant Mustaq does not find place in the F.I.R. When the informant Nasim Khan was examined before the court, he said that when he went out of the house on hearing shrieks of her daughter, he saw accused appellants Munna Deevana and Mustaq, who were catching her daughter. At that time, he recognized Munna and Mustaq only by his face. When he reached the spot his daughter told him that Mustaq and Munna had pressed her mouth and had picked her from house and raped in the fields. When this witness immediately after the occurrence was told about the name of Mustaq by the victim there was absolutely no reason not to name Mustaq in the report. Even if he could not identify Mustaq by name as per his own version the name of Mustaq was told to him by his daughter but not naming Mustaq in the F.I.R. makes the F.I.R., which is the backbone of a criminal case, very weak. When this witness was asked before the trial court as to since when he knew Munna Deevana and Mustaq, he stated that he knew them for the last 3-4 years. When this witness was asked before the trial court as to since when he knew Munna Deevana and Mustaq, he stated that he knew them for the last 3-4 years. He has specifically stated that he recognized the accused persons in moon light and since the accused fled from near him, he recognized them. The victim (P.W.2) has stated that the accused pressed her mouth, lifted her from her house, took her to the fields and they raped her. When she shouted her father came followed by her neighbours. They were seen by her father, hence, they fled away. She narrated the incident to her father. The report was dictated to Naim Khan, who had read over the report and it was signed by her father after that. Again a million dollar question arises as to why the name of Mustaq did not find place in the F.I.R. which was lodged the next day at 21.30. hours. specially when the victim had told the name of both the rapists to her father instantly. 13. As far as the incident is concerned, it is trite law that the conviction can be based on the sole testimony of the prosecutrix provided her evidence is trustworthy and reliable and worthy of credence. From the judicial decisions rendered by the Apex Court, the law as regards the credibility of the testimony of prosecutrix may be summarized as follows:- 30. 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. (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 unnatural-ness 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". 14. Accused appellant Mustaq has stated that he has been falsely implicated in the matter and his involvement in the case is also doubtful because as far as he is concerned, the evidence of the prosecution is shaky and the witnesses have been making improvements now and again. 15. When P.W.1 Naseem was asked about this matter, he admitted that when he went to lodge the report, the victim was present with him. He has further stated that he knows the house of Mustaq and recognizes him by his face. He has further said that the victim only told the name of Munna Deevana and said that she could recognize the other rapist by face. Clarifying the whole issue, this witness has stated that he came to know the name of other rapist as Mustaq three-four days after the occurrence. The evidence of star witness P.W.2 (the victim) is very important on this point, who has stated that she did not name both the accused to her father. But, in the next breath, she has stated that she had told the name of miscreants to her father. The evidence of star witness P.W.2 (the victim) is very important on this point, who has stated that she did not name both the accused to her father. But, in the next breath, she has stated that she had told the name of miscreants to her father. As far as the statement of the Investigating Officer SI Raghu Nandan Singh (P.W.4) on this point is concerned, he has stated that although the name of Mustaq was not mentioned in the F.I.R. but the victim and the witnesses named him in their statement under Section 161 Cr.P.C. 16. It is trite law that mere fact that no injuries were found on the body of the victim cannot be a ground to hold that no rape was committed. Absence of injuries and delay in lodging the First Information Report cannot be a ground to disbelieve the prosecution theory if otherwise found reliable. 17. As far as the prosecution case is concerned, the victim was carried away from the house by both the accused to the fields and was raped there. The father of the victim, namely, P.W.1 Naseem has said that since he was sleeping, he was not aware how his girl was lifted and he did not see how she was taken away but he narrated what was told to him by his daughter. The victim (P.W.2) stated that while she was sleeping both the accused came, pressed her mouth, took her to the fields of Ehsan Khan and raped her. In cross-examination, this witness has stated that when the accused came to lift her, she was sleeping. The rapists had not muffled their faces. They pressed her mouth, picked her in the lap and took her. Further she has stated that whole family was sleeping in the courtyard. There was no door in her house. She was sleeping towards the door-side and her father was sleeping towards the wall. Between the father and the daughter two sons were sleeping. The way in which the family members are said to have been sleeping, does not appeal to common sense. I fail to understand why the father instead of sleeping himself towards the opening without doors would make his daughter sleep and would make her unsafe. Between the father and the daughter two sons were sleeping. The way in which the family members are said to have been sleeping, does not appeal to common sense. I fail to understand why the father instead of sleeping himself towards the opening without doors would make his daughter sleep and would make her unsafe. It is obvious that if there is young girl in the house, the father would sleep towards the door and make his young daughter sleep towards the wall. The manner in which the victim is said to be lifted is that Mustaq pressed her mouth, caught her from the front, and Munna Deevana caught her from the legs and lifted her. The presence and involvement of Mustaq is doubtful. Inasmuch as this witness has stated that she did not name both the accused to her father and the manner in which the victim is said to have been lifted is not reliable. 18. As far as the occurrence as regards Munna Deevana is concerned, the statement of the victim P.W.2 is important who has explained that although there were no source of light on the place of occurrence but because both the appellants were so near to her, hence, she recognized them. The victim has further stated that the appellants had not muffled their face. She had not shown the place of occurrence either to her father or Investigating Officer. Clarifying the position on the spot, she has specifically stated by the time her father and neighbours came, the accused had fled away from the spot. It is not the case of the prosecution that any of the said accused were armed with any weapon. Although sole testimony of the prosecutrix is enough for conviction but the conduct of the victim immediately after the occurrence can also be looked into. Inasmuch P.W.1 Naseem has stated that he reached the spot on hearing shrieks of his daughter who raised alarm after she was raped. I fail to understand that how the father could not get up when his daughter was being lifted from inside the house and how he managed to hear shrieks of his daughter 60-65 paces away from the fields and why the accused after raping the girl kept waiting at the place of occurrence to enable the witnesses to see them. I fail to understand that how the father could not get up when his daughter was being lifted from inside the house and how he managed to hear shrieks of his daughter 60-65 paces away from the fields and why the accused after raping the girl kept waiting at the place of occurrence to enable the witnesses to see them. Although P.W.1 Naseem had not witnessed the occurrence but he has stated that they had pressed her mouth when they were raping her. At many places, P.W. 1 Naseem the informant has contradicted himself. I am aware that minor contradictions in one's statement would not render the statement untrue but if the contradictions strike at the root of the case then matter would take a different shape. Informant P.W.1 was confronted with the statement given to the Investigating Officer in which he has stated to the Investigating Officer that he awoke from sleep when his daughter returned home after the incident and in court, he has stated that he reached the spot on hearing alarm of his daughter. The statement that he reached the spot on hearing alarm is correct and his statement that he woke up after his daughter returned home after incident is incorrect. He was confronted with his two statements. In one he had stated that on the date of occurrence, he had slept at the Majar and on the other he had stated that, at the time of occurrence, he was sleeping inside the house. This witness was fair to admit that his statement that he slept at the Majar on the date of occurrence is incorrect. In fact he was sleeping in the house. 19. As far as the recovery of the clothes of the victim is concerned, the recovery memo is Ext.Ka-5. The Investigating Officer in this regard has stated that the clothes of the victim, which were taken into possession, were not produced before the Court. However, he has stated that he inspected the spot on the pointing out but the victim has denied the pointing out of spot to the Investigating Officer. Although the Investigating Officer (P.W.4) S.I. Raghunandan Singh has stated that the clothes were sent to the Forensic Lab but neither the report is on the record nor the clothes were produced before the Court. Although the Investigating Officer (P.W.4) S.I. Raghunandan Singh has stated that the clothes were sent to the Forensic Lab but neither the report is on the record nor the clothes were produced before the Court. Thus, as I have said earlier although injuries are not sine qua non for proving the allegations of rape but, in this particular case, the victim has categorically stated that she was trying her level best to get out of the clutches of the accused. She tried her level best to get herself released but they did not free her. She has also stated that the accused forcibly raped her. Mustaq pressed her mouth. If this would have been the real position, there would definitely have been some signs of injuries. Specially on the forearms, wrists, face, breast thighs and back which are indicative of struggle and would support the allegations of sexual assault as has been laid down in (2007) 12 SCC 57 (Radho Vs. State of Madhya Pradesh). 20. In the result, the prosecution evidence is shaky, unreliable, unworthy of credence and the prosecution has miserably failed to prove the case against the applicants beyond all reasonable doubt. Hence, the appeal is liable to be allowed. 21. Accordingly, the appeal is allowed and the Judgment and order dated 27.11.2010 passed by the Additional Sessions Judge, Court No. 7, Bareily (State Vs. Munna Deevana and others) in S.T. No. 215 of 2010 under Section 376 I.P.C. Thana Baradari, Bareily whereby the accused have been convicted and sentenced, is hereby set aside. 22. The accused is in jail. He shall be released forthwith in this case. The provisions of Section 437A Cr.P.C. Shall be complied with. 23. Let copy of the Judgment be certified to the court concerned. ——————