Judgment : Hon'ble Mrs. Ranjana Pandya, J. 1. Challenge in this appeal is to the judgment and order dated 31.05.2014 passed by the learned Sessions Judge, Kanpur Dehat in Sessions Trial No. 110 of 2013 (State vs. Amar and another) arising out of Case Crime No. 404 of 2012, under section 376 IPC, PS Akbarpur, district Kanpur Dehat, whereby the accused Jaipal was acquitted for the charge under section 376 IPC and the accused Amar was convicted and sentenced to ten years' rigorous imprisonment and a fine of Rs. 25,000/- with default stipulation. The accused was also directed to pay Rs. 50,000/- as compensation to the victim, failing which, he shall further undergo one year additional imprisonment. 2. Filtering out the unnecessary details, the prosecution case is that the informant herself lodged an FIR stating that she is resident of Akbarpur, district Ramabai Nagar and is student of class-10. In the intervening night of 24/25.06.2012, she was sleeping in the veranda in front of her house, at about 4 O'clock in the night her neighbour Amar, son of Ram Babu, came quietly and caught hold of her hand, pressed her mouth and dragged her in the room and raped her after breaking the tape of her Salwar. Somehow she managed to get her mouth opened and shouted, her family members came from the roof and raised alarm, on which Amar got up and ran outside. His head banged against from of the door (Chaukhat) and his head started bleeding. Blood was lying on the spot. The whole incident was narrated by the informant to her family members, who could not go to the police station to lodge an FIR due to fear. On the next day FIR was lodged. Investigation was entrusted to PW-6, Atar Singh on 25.06.2012. On that day, he copied the written report in the case diary. He recorded the statement of Constable Moharrir 43, Raj Bahadur Singh. He further recorded the statement of victim, copied the medical report, which was received from lady constable Sunita Kumari and Monika Patel with the aid of the lady constable and the informant. The spot was inspected. The site plan was prepared, which was proved by this witness as Ext. Ka-9. He further recorded the statement of victim, copied the medical report, which was received from lady constable Sunita Kumari and Monika Patel with the aid of the lady constable and the informant. The spot was inspected. The site plan was prepared, which was proved by this witness as Ext. Ka-9. During investigation, in presence of Sushila Devi, Ranjeet, the Investigating Officer collected bloodstain and plain earth, it was sealed and memo was prepared, which was signed by Sushila Devi and Ranjeet. This witness has proved it as Ext. Ka-10. The clothes of the victim were taken into possession by this witness, which were stained. The clothes were sealed and its memo was prepared. This memo was proved by this witness, which was previously Exhibited as Ka-3. After that the statements of mother of the victim, namely, Sushila Devi, her father Chhotey Lal were recorded. The victim was sent for medical examination. The accused was arrested and his statement was recorded. The underwear worn by the accused, which was stained with blood was taken into possession and sealed and its memo was prepared, which was proved as Ext. Ka-11. After that the accused was also sent for medical examination, which medical report was copied in the case diary. The statement of Dinesh was recorded on 27.06.2012. On 29.06.2012 the pathology report and supplementary medical report of the victim was copied in the case diary. On 02.07.2012, the victim was sent with lady Constables for recording her statement under section 164 Cr.P.C., which was recorded by the court on 03.07.2012. It was copied in the case diary, which was perused by this witness. After that the accused Jaipal was apprehended. The statements of witnesses Chhotey Lal, Sushila Devi, Ranjeet and Constable Ravindra Kumar were recorded. On 03.08.2012 the material exhibits were sent to the forensic laboratory for examination. The docket was proved as Ext. Ka-12. Further this witness recorded the statement of Dr. Archana Srivastava, Constable Nishat Ali. The statement of accused was recorded in jail after obtaining permission from the court. The investigation ended into a charge sheet, which was proved by this witness as Ext. Ka-13. 3. The prosecution examined as many as eight witnesses. PW-1 is the victim, who has proved the written report as Ext. Ka-1 and her statement recorded under section 164 Cr.P.C. as Ext. Ka-2. The investigation ended into a charge sheet, which was proved by this witness as Ext. Ka-13. 3. The prosecution examined as many as eight witnesses. PW-1 is the victim, who has proved the written report as Ext. Ka-1 and her statement recorded under section 164 Cr.P.C. as Ext. Ka-2. PW-2 is Chhotey Lal, the father of the victim, who has proved the memo as Ext. Ka-3. PW-3 is Sushila Devi, the mother of the informant, who has also proved the memo regarding taking of possession of clothes of the victim. PW-4 is Constable 43, Raj Bahadur Singh, who scribed the chik report, which was proved as Ext. Ka-4. This witness further proved the copy of G.D. as Ext. Ka-5. PW-5 is Dr. Archana Srivastava, who medically examined the victim and found the following injuries on the body of the victim: (i) Superficial linear abrasion 1 X 1 c.m. over anterior aspects of right fore-arm. (ii) Superficial linear abrasion 0.3 X 0.3 c.m. on anterior aspects of left fore-arm. 4. The doctor did not find any injury in or around the private part of the body. The hymen old torn and healed. The vagina was admitting two fingers easily. There was no bleeding. She prepared two slides to be sent for examination. The clothes worn by the victim were handed over to the police personnel. This witness proved the medical report as Ext. Ka-6. Reference slip as Ext. Ka-7 and supplementary report as Ext. Ka-8. The statement of PW-6, Investigating Officer, Atar Singh has been discussed earlier. PW-7 is Constable 200 AP, Ravindra Kumar, in whose presence underwear of the accused was taken into possession and the memo was prepared, which was proved by this witness as Ext. Ka-11. PW-8 Constable Clerk 482 Lal Singh, who prepared carbon copy of the G.D., which was proved as Ext. Ka-14. 5. After closing of the evidence of prosecution witnesses, the statement of accused persons were recorded under section 313 Cr.P.C., who denied the occurrence. The accused Amar has stated that the father of the victim and his son Dinesh had assaulted him on the night of the alleged incident regarding which case was lodged at the police station, due to that enmity the present case has been falsely lodged. The accused Jaipal has stated that he is innocent. He has not committed any offence. The accused Amar has stated that the father of the victim and his son Dinesh had assaulted him on the night of the alleged incident regarding which case was lodged at the police station, due to that enmity the present case has been falsely lodged. The accused Jaipal has stated that he is innocent. He has not committed any offence. The informant Chhotey Lal and his son Dinesh had assaulted his nephew Amar, for which a case had been lodge, due to that enmity, he was falsely implicated. 6. The accused examined two witnesses in defence. DW-1 is Ram Balak, who has deposed that the father and brother of the victim have assaulted the accused Amar. DW-2 Deva has deposed the same version. 7. The learned lower court after hearing the counsel for the parties, convicted the accused as mentioned in paragraph 1 of the judgment. 8. Feeling aggrieved, the accused has preferred the present appeal. 9. Heard Shri K. Kumar Tripathi, learned counsel for the appellant, learned Additional Government Advocate for the State-respondent and perused the lower court record. 10. It has been submitted on behalf of the appellant that as per the FIR, the occurrence is said to have been taken place during the intervening night of 24/25 of June, 2012, whereas the matter was reported to the police station on 25.06.2012, the distance of police station being 7 kms from the place of occurrence. The report was lodged on 25.06.2012 at 22.00 hours meaning thereby at 10.00 p.m., whereas the occurrence is said to have taken place on 25.06.2012 at 4.00 a.m. Although the time of occurrence has been mentioned to be night, but 4, O clock is in June is practically dawn. 11. Thus, in the cases of rape this delay is not too material, inasmuch as it has been mentioned in the FIR that the accused person was muscleman, hence the victim could not report the matter to the police during the day time. Hence, she came during the evening hours. 12. As far as the occurrence is concerned, as per the FIR, the victim was student of high school. She was sleeping in her veranda in front of her house. Amar dragged her in the room and raped her. When her mouth was opened, she raised hue and cry, when her family members came, due to which Amar fled away, who hurt his head. She was sleeping in her veranda in front of her house. Amar dragged her in the room and raped her. When her mouth was opened, she raised hue and cry, when her family members came, due to which Amar fled away, who hurt his head. The victim PW-1 was examined in support of prosecution story, who has corroborated the FIR. In her examination-in-chief, she has stated that Amar broke the tape of her salwar and raped her, whereas the co-accused Jaipal caught hold her hands and pressed her mouth. However, Jaipal has been acquitted by the trial court. In her examination-in-chief, this witness has stated that when the accused fled away when her brother and parents came. She narrated the whole incident to her brother and parents. This witness has admitted that there is only one room in her house and this is the room where she was raped by the accused Amar. This witness had to undergo the test of cross-examination, in which she has stated that ^^,Q-vkbZ-vkj- esa tks ;g fy[kk gS fd vej iq= jke ckcw eq>s [khapdj eqag nckdj dejs esa [khap ys x;k] ;g ckr fcYdqy xyr gSA^^ Thus, this witness denied the averments in the FIR, which is scribed by her ownself. Further this witness has stated that initially, when she went to the police station, she took a written report with her, in which the name of Jaipal as co-accused was also written, but when she reached the police station, she was asked to remove the name of Jaipal only then her report could be lodged. That report, in which the name of Jaipal was mentioned, was torn by the police and she lodged the report as told to her by the police personnel. There is nothing on record to show as to why the police personnel were interested in Jaipal and what was the reason why the police insisted that the victim should exclude the real culprit and lodge the FIR only against Amar. The witness has further stated that in the night the doors of the room were closed. When her brother and parents reached the place of incident, she was naked. Her mother made her wore the clothes. The witness has further stated that in the night the doors of the room were closed. When her brother and parents reached the place of incident, she was naked. Her mother made her wore the clothes. She was wearing a salwar, which was pressed to the feet, it was having elastic not a tape (nara), but in the FIR the victim has mentioned that the tape (nara) of her salwar was broken and she was raped. I do not think that the victim being a young girl could not differentiate between a salwar and leggy because in the forensic laboratory report, there is mention of leggy and in the recovery memo taking the clothes of the victim into possession the Investigating Officer has mentioned it as Salwar (leggy). 13. It is true that injury is not a sine qua non for deciding whether rape has been committed. But it has to be decided on the factual matrix of each case. As was observed by the Hon'ble Apex Court in Pratap Misra and others vs State of Orissa, 1977 (3) SCC 41 , where allegation is of rape by many persons and several times but no injury is noticed that certainly is an important factor if the prosecutrix' version is credible, then no corroboration is necessary. But if the prosecutrix's version is not credible then there would be need for corroboration. 14. Further she has stated that she tried to save herself for 10-15 minutes. During this period her clothes were not torn. I am aware that if the testimony of the prosecutrix is not shaky, reliable and worthy of credence, conviction can be based on her sole testimony, but in the present case, the statement of prosecutrix is improbable and not reliable because if she would have had a scuffle with the accused, there is no reason why she would not have sustain bruises, abrasions and scratches on her breast, thighs and feet as has been laid down in Radhu vs State of Madhya Pradesh, (2007) 12 SCC 57 , in which the Hon'ble Apex Court has held as under: "It is also well settled 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. Bruises, abrasions and scratches on the victim especially on the forearms, wrist, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instance where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case." No doubt the sole testimony of the prosecutrix is sufficient to convict the accused, but that can only be done if the evidence of the prosecutrix is found to be trustworthy, reliable and probable. 15. PW-1, the victim has further stated that initially she has stated that when her mouth was pressed, she sustained injuries, but in the next breath, she stated that she did not sustain injuries, but she sustained injuries on her both hands. The victim has further admitted that her parents were sleeping in the courtyard in the open space. 16. Chhotey Lal is father of the victim to whom she is said to have stated the occurrence immediately after the occurrence. PW-2 Chhotey Lal has stated that the victim was sleeping beside the room in the veranda. When he reached the spot on hearing shrieks of her daughter, he saw the accused running away from the house and the head of the appellant Amar dashed against the door and he sustained injuries. His daughter narrated the incident to him. Contradicting himself, he has stated that he saw the accused running away when he was standing on the chabutara. He has further stated that his wife did not see the accused fleeing away, but his son Dinesh saw them running away. Anything said by the victim at or about the time of occurrence to her parents would form part of res-gestae. Such conduct can be corroborative piece of her evidence. In other words, subsequent conduct not only is relevant, but important and material. 17. Anything said by the victim at or about the time of occurrence to her parents would form part of res-gestae. Such conduct can be corroborative piece of her evidence. In other words, subsequent conduct not only is relevant, but important and material. 17. PW-2, father of the victim has admitted that he stated to the Investigating Officer that appellant Amar dragged his daughter into the room and raped her. He has further stated that the Sub-Inspector scolded the victim and compelled her to write that Amar dragged her into the room and the name of Jaipal got deleted. This witness has further stated that there is only one room in his house, which has two doors. This is supported by site plan, Ext. Ka-9, in which two doors are shown to be in the room, where the victim is said to have been raped. This witness has stated that he handed over the salwar of the victim to the police. 18. Smt. Sushila Devi is wife of the informant and mother of the victim, who has stated that when she heard the shrieks of her daughter as soon as she reached the gallery, she saw Amar and Jaipal fled away. When she reached the place of occurrence, the victim told her that Jaipal had pressed her mouth and Amar had raped her and caught her hands. In cross-examination, this witness has stated that her daughter and husband told her that the original report was got torn at the police station by the Sub-Inspector after the victim and her father was detained at the police station. Although this witness in her examination-in-chief has stated that the occurrence took place at 4.00 a.m., but it appears that when she was being cross-examined on the next date she forgot what she had stated in her examination-in-chief. Thus, in cross-examination she has stated that they had got up at 4.00 a.m., it was raining slightly, due to which they all were standing in the veranda. The mother of the victim has specifically stated that the salwar was not bearing a tape (nara), but was bearing elastic. Although when she was further cross-examined on another date, she admitted that the tape (nara) of the salwar was broken. 19. The mother of the victim has specifically stated that the salwar was not bearing a tape (nara), but was bearing elastic. Although when she was further cross-examined on another date, she admitted that the tape (nara) of the salwar was broken. 19. It has been submitted on behalf of the appellant that the whole prosecution story is un-digestible and improbable, inasmuch as the tilak ceremony of son of Jaipal was being held on the date of occurrence and in fact the brother and father of the accused had assaulted Amar, for which a case was lodged, hence due to enmity the accused Jaipal and Amar have been falsely implicated. This submission find support from the statement of the victim PW-1, who has admitted in cross-examination that the tilak ceremony of son of the accused Jaipal was scheduled on the date of incident, in which her parents were not invited, but her uncle (tau) Babu Ram was invited. The mother of the victim, namely, Smt. Sushila Devi, PW-3 has admitted that Babu Ram was sleeping 10-12 paces away from the victim. How two persons took away the girl and dragged her is a theory, which cannot be believed. Even the father of the victim, namely, Chhotey Lal, PW-2 has admitted that on the date of occurrence, the doors of his house were closed. He was sleeping in the courtyard and the girl was taken in the room from the front door. This is also a theory, which cannot be digested. The victim has admitted that the accused Amar had lodged a report against her father and brother on the night of the incident. Chhotey Lal being the father of the victim has also admitted that the tilak ceremony of Shailendra being the son of Jaipal was being solemnized on the date of incident and relatives had come to the house of Jaipal. Smt. Sushila Devi, PW-3, the mother of the victim has denied that on the date of incident her husband had assaulted Amar and in order to save skin, a false case was lodged. 20. Dr. Archana Srivastava, PW-5, who examined the victim found a superficial linear abrasion 1 X 1 c.m. over anterior aspects of right fore-arm and superficial linear abrasion 0.3 X 0.3 c.m. on anterior aspects of left fore-arm. 21. 20. Dr. Archana Srivastava, PW-5, who examined the victim found a superficial linear abrasion 1 X 1 c.m. over anterior aspects of right fore-arm and superficial linear abrasion 0.3 X 0.3 c.m. on anterior aspects of left fore-arm. 21. The statement of PW-6, S.I. Atar Singh is important, who has admitted that prior to lodging of the FIR, the accused Amar had lodged an NCR against the father and brother of the victim. He has denied of having torn any report brought by the victim. 22. The question had remained unanswered throughout the trial is as to how the door of the house opened and who opened it and how the accused managed to enter the house. The statement of the victim recorded under section 164 Cr.P.C. is Ext. Ka-2, in which the victim has stated that the appellant Amar disrobed her while Jaipal caught her hands and pressed her mouth. While Amar was running away, his head hit the door and he started bleeding. The report lodged by the accused Amar is prior in time in comparing to report lodged by the victim. It is admitted case of the prosecution that the accused appellant Amar received injuries on his head. If the injuries of the accused Amar would have been due to striking of his head with the door, the Investigating Officer should have found blood on the door, which he did not find. Thus, it appears that the whole prosecution theory has been concocted just to save Chhotey Lal and Dinesh from the report lodged by the accused Amar against them. The role of the accused Jaipal has been disbelieved by the trial court on the same set of evidence. There are contradiction in the statement of the victim and her parents, which go to against the prosecution case. This is a case, in which there is sufficient reason for the victim to falsely implicate the accused, who had admittedly lodged a report against the father and brother of the victim. Even the father of the victim PW-2 Chhotey Lal had admitted that in the case, which was lodged by the accused appellant Amar against him, he had not got himself bailed out. This witness has stated that he has ignored whether Jaipal is witness in the case lodged by the appellant Jaipal, but the whole prosecution theory as set forth by the prosecution is unreliable. This witness has stated that he has ignored whether Jaipal is witness in the case lodged by the appellant Jaipal, but the whole prosecution theory as set forth by the prosecution is unreliable. The witnesses are not trustworthy. The prosecution has miserably failed to prove the case against the accused beyond reasonable doubt. There is admitted enmity between the accused appellant and the family of the victim. 23. Thus, what has been stated and discussed above, I conclude that the prosecution case is a bundle of false allegations and improbable facts, due to which the learned trial court mislead itself and has incorrectly convicted the accused, which conviction cannot be sustained in the eyes of law, as such the accused is entitled to be acquitted and the appeal is liable to be allowed. 24. Hence, the impugned judgment of conviction and sentence dated 31.05.2014 passed by the learned Sessions Judge, Kanpur Dehat in Sessions Trial No. 110 of 2013 (State vs. Amar and another) arising out of Case Crime No. 404 of 2012, under section 376 IPC, PS Akbarpur, district Kanpur Dehat is hereby set aside. 25. Accordingly, the appeal is allowed. 26. The appellant Amar is on bail. His bail bond is cancelled and the sureties are discharged. However, the appellant is directed to comply with the provision of Section 437-A Cr.P.C. 27. Let a copy of this order be sent to the trial court concerned for compliance of the order. ———————