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Karnataka High Court · body

2019 DIGILAW 1480 (KAR)

Shankar C. v. State Of Karnataka

2019-06-28

K.NATARAJAN

body2019
JUDGMENT : K. Natarajan, J. This appeal is preferred by accused No.1 being aggrieved by the judgment of conviction and order on sentence passed by the III Additional District and Sessions Judge, Ramanagara, (hereinafter referred to as 'trial Court', for the sake of convenience) in Sessions Case No.71 of 2015 for having sentenced to undergo rigorous imprisonment for 7 years with fine of Rs.5,000/- for the offence punishable under Section 376 of Indian Penal Code (I.P.C) and in default of payment of fine, to undergo simple imprisonment for 3 months; to undergo simple imprisonment for 3 years for the offence punishable under Section 363 of I.P.C. and to undergo simple imprisonment for 3 months for the offence punishable under Section 323 of I.P.C. vide judgment dated 24-7-2017. 2. The appellant was accused No.1 and the respondent Police was the complainant before the trial Court. The ranks of the parties before the trial Court are retained for the sake of convenience. 3. Heard the arguments of the learned counsel for the appellant and the learned High Court Government Pleader for the respondent-State. 4. Before adverting to the grounds urged by learned counsel for the appellant and the learned High Court Government Pleader for the respondent-State, it is worth to mention the brief facts of the case of the prosecution: The Circle Inspector of Police, Magadi Circle, filed a charge-sheet against accused No.1-Shankar C., the appellant herein and Ravi Kiran-accused No.2 for the offences punishable under Sections 323, 363 and 376D read with Section 34 of I.P.C. on the complaint of P.W.1- prosecutrix filed on 28-3-2015 at 8.00 p.m. alleging that when she was coming by walk from Adarangi towards Kagimadu Village, accused No.1-Shankar and another accused-Venkatesh have dragged her to Kodi Channel and attempted to outrage her modesty and assaulted on her face by hands. While the prosecutrix was sitting at Rangaiahnapalya road, P.W.2 seen her and took her to the Village. Thereafter, P.W.1 along with other Village people went to Kudur Police Station and lodged the complaint on 29-3-2015. Case in Crime No.110 of 2015 has been registered for the offences punishable under Sections 363, 323 and 376D read with Section 34 of I.P.C. and issued F.I.R. Thereafter, P.W.1 was referred to the Hospital for medical examination, wherein it was found that she has been subjected to rape by the accused. Case in Crime No.110 of 2015 has been registered for the offences punishable under Sections 363, 323 and 376D read with Section 34 of I.P.C. and issued F.I.R. Thereafter, P.W.1 was referred to the Hospital for medical examination, wherein it was found that she has been subjected to rape by the accused. Later, further statement of prosecutrix was recorded by the Police and converted the case into Section 376 of I.P.C. Thereafter, accused No.1 and another accused Ravi Kiran have been arrested and they have been subjected to medical examination. Then P.W.1 in her further statement stated that accused Nos.1 and 2 abducted her to banana plantation, which belongs to one Kempamma, situated near Kagimadu Main Road and committed rape on her. Later, after investigation, the Police filed charge-sheet against accused Nos.1 and 2 for the offences punishable under Sections 363, 323 and 376D read with Section 34 of I.P.C. Accused were arrested and have been released on bail. After committal, the trial Court framed the charges against the accused. The accused pleaded not guilty and claimed to be tried. Hence, they were put on trial. 5. The prosecution examined in all 9 witnesses as P.Ws.1 to 9, got marked 17 documents as Exs.P1 to P17 and also got marked 13 material objects as MOs.1 to 13. Then the accused were examined under Section 313 of the Code of Criminal Procedure, 1973. The case of the accused was one of total denial, but not entered into any defence and after hearing the arguments, the trial Judge convicted accused No.1, but acquitted accused No.2. Hence, this appeal is filed by accused No.1. 6. Learned counsel for the appellant has contended that while lodging the complaint by P.W.1 along with Village people, she has stated that accused attempted to outrage her modesty and she has escaped from them. So many villagers have signed the complaint, but she has not whispered anything about the rape. P.Ws.2 and 5 are the villagers, who have enmical terms with the accused. Therefore, a false case has been foisted against the accused. Even otherwise, there is no medical evidence to corroborate the evidence of P.W.1. Police has setup a false case after thought. There is no injury found on the body or seminal stains found on the clothes of the prosecutrix. There is no evidence against the accused to prove the case beyond reasonable doubt. Even otherwise, there is no medical evidence to corroborate the evidence of P.W.1. Police has setup a false case after thought. There is no injury found on the body or seminal stains found on the clothes of the prosecutrix. There is no evidence against the accused to prove the case beyond reasonable doubt. Complaint shows that the complainant-prosecutrix was also raped by accused No.2-Venkatesh, but later Ravi Kiran was brought as accused No.2 and the name of Venkatesh was deleted. There is no reason assigned by the prosecution in this regard. Therefore, the evidence of P.W.1 is not sufficient to prove the guilt against the accused. Hence, he prayed for acquittal. 7. Per contra, the learned High Court Government Pleader contended that the evidence of P.W.1 and the medical evidence corroborate with each other, though P.W.1 has not stated anything in the F.I.R., but her subsequent statement clearly goes to show that this accused along with the other accused raped her. There is no reason to disbelieve the evidence of P.W.1, who is a natural witness. Since she being the village girl, there may be some discrepancy in the evidence that she might have suppressed the real fact. Therefore, her evidence cannot be thrown out. Hence, he prayed for dismissal of the appeal. 8. Upon hearing the arguments, it is necessary to have a cursory look at the evidence adduced by the prosecution before the trial Court, which is as under; 8.1 P.W.1-prosecutrix deposed before the Police that she knows accused No.1-Shankar and accused No.2-Ravi Kiran and about one and half-a-year prior to her evidence, at about 7:00 p.m., when she was proceeding to her sister's house situated in Kagimadu Village, at that time, accused Nos.1 and 2 came in the motorbike. Accused No.2 closed her mouth, due to which, she sustained injury. Both the accused lifted her to banana plantation and committed rape on her. After the alleged act, when she was returning to her house, she met P.W.2-Imran and Issack. One Nawaz and Issack took her to the house and later, they brought her to the Police Station. Thereafter, she was sent to Magadi Hospital and complaint came to be filed by the elders of the Village. She further says that at about 8:00 p.m., they went to Police Station and filed the complaint as per Ex.P1. One Nawaz and Issack took her to the house and later, they brought her to the Police Station. Thereafter, she was sent to Magadi Hospital and complaint came to be filed by the elders of the Village. She further says that at about 8:00 p.m., they went to Police Station and filed the complaint as per Ex.P1. She further says, the Police have not inquired her and she has narrated entire episode in her complaint. Thereafter, she was sent to Rajarajeshwari Hospital. The clothes worn by her were collected by the Police which are marked as MOs.1-4, i.e. chudidar top, chudidar pant, veil and bra respectively. She admits that she is unable to identify the motorbike. In the cross-examination, she has admitted that Police seized MOs.1 to 4 which were worn by her and admitted regarding lodging of the complaint by herself along with her relatives. During cross-examination, the learned counsel for the accused set up defence that the accused has been falsely implicated. P.W.1 has admitted that her younger brother-Nawaz and Imram are friends. She has further admitted that accused No.1 was working as a Driver under Nissar, who is a President of Adarangi Grama Panchayat and a member of Congress party and P.W.2-Imran is from JDS party. P.W.2-Imran was defeated by Nissar in the election. She also admits that she knows Venkatesh, son of Govindappa, very well, who is also running autorickshaw in Adarangi Village and there was quarrel between her elder brother-Issack and Venkatesh with regard to auto-rickshaw and a complaint has been lodged in the Police Station. She further admits that Venkatesh is having political influence and she has given complaint in Ex.P1 naming Venkatesh as accused No.2. Police arrested and brought the said Venkatesh to the Police Station. She was present in the Police Station and identified the said Venkatesh. She further admits that after discussing with the Police, some political leaders came and got released the said Venkatesh from the Police Station and she also admits that the said Venkatesh is not the accused before the Court. She was present in the Police Station and identified the said Venkatesh. She further admits that after discussing with the Police, some political leaders came and got released the said Venkatesh from the Police Station and she also admits that the said Venkatesh is not the accused before the Court. From the above admission of this witness, it is clear that she has given a complaint against accused No.1-Shankar and accused No.2-Venkatesh and subsequently, the said Venkatesh was brought to the Police Station and left free and thereafter, implicated Ravi Kiran as accused No.2 and as per the evidence, she knows the said Ravi Kiran from past 2 years before the incident. When herself stated in the complaint-Ex.P1 and in the further statement, naming accused No.2 as Venkatesh and later, there is no explanation given by her to implicate Ravi Kiran as accused No.2, who is said to have committed rape on her. She has changed the version of the complaint in Ex.P1 and further examination of P.W.1 goes to show that place of occurrence was on the way to Adarangi Village to Kagimadu about one and half kilometer which is situated on the main road of Nelamangala and there are number of vehicles passing and public used to cross the said road. She further admits that on the way going to Kudur from Nelamangala, Ramanahalli is situated while going to Kagimadu and Scheduled Caste colony is also situated about one furlong away. There are so many people residing. She further admits that near the place of occurrence, i.e. survey No.30/2, there are residents on both side and about 50 feet away, the house of Srinivas is also situated and so many people are residing on the way to banana plantation. Admission of P.W.1 goes to show that there are number of houses situated on both side on the place of occurrence and also there is Scheduled Caste colony situated just one furlong on the way to the place of occurrence to Adarangi main road. In further cross-examination, P.W.1 has admitted that she has not stated in her complaint about commission of rape. She also stated that she has not disclosed the commission of rape before the Doctor in Kudur, Magadi Hospital and Bowring Hospital. After treatment in Rajarajeshwari Hospital, she came to the Police Station and Police obtained 2-3 signatures on some records. In further cross-examination, P.W.1 has admitted that she has not stated in her complaint about commission of rape. She also stated that she has not disclosed the commission of rape before the Doctor in Kudur, Magadi Hospital and Bowring Hospital. After treatment in Rajarajeshwari Hospital, she came to the Police Station and Police obtained 2-3 signatures on some records. She also admits that the Police have not done any Test Identification Parade for identifying the accused. She has stated that accused No.2 closed her mouth, due to which, she sustained injury on her face and further stated that accused No.2 bitten her on face and accused Nos.1 and 2 both lifted her to banana plantation and committed rape. Further, she has admitted that even though there is no such incident occurred, but she has given false evidence and she further admitted that there was rivalry between her brother Nawaz and Nissar as accused worked under Nissar. Therefore, she lodged a false complaint and the same was admitted by her. This witness has turned hostile and in the crossexamination, she has stated that accused raped her and she has lodged complaint at the instigation of Nawaz has been denied, and says, she has given a true case. As per the evidence of P.W.1, on earlier occasion while lodging the complaint-Ex.P1, she has not stated accused Nos.1 and 2 committed rape on her, but she has only stated they made an attempt to outrange her modesty and in the cross-examination, she has stated that she has not shown the spot to the Police or to P.W.2. There is no consistency in her evidence in report of commission of rape by the accused. 8.2 P.W.2-Imran @ Abdul Reham has deposed that about one and half-a-year prior to his evidence, at about 7:30 p.m. to 8:00 p.m., Issack and himself were proceeding on a motorcycle, they found P.W.1 was sitting on the side of the road at Rangaiahnapalya. On enquiry, she has informed that Shankar and Ravi Kiran abducted her and committed rape on her. They took the prosecutrix to her house. Thereafter, they went to Police Station and lodged the complaint at midnight. Police asked him to show the spot, he took the Police and shown the banana plantation, which belongs Hanumaiah, then Police prepared Ex.P2-spot panchanama; seized chudidar pant and chappals. They took the prosecutrix to her house. Thereafter, they went to Police Station and lodged the complaint at midnight. Police asked him to show the spot, he took the Police and shown the banana plantation, which belongs Hanumaiah, then Police prepared Ex.P2-spot panchanama; seized chudidar pant and chappals. He also identified the chudidar pant as MO.5 and chappals as MO.6. In the cross-examination, he has admitted that P.W.1 was known to him and he has admitted his wife is also a member of the Grama Panchayat. There was darkness in the road, he saw P.W.1 with the help of headlight of the motorcycle and brought back P.W.1 in the motorcycle. He further admits that P.W.1 has not shown the spot to him, but he has shown the spot to the Police and in further cross-examination, he has admitted that he has contested in Grama Panchayat election and he also admits that he supported JDS party and Nissar belongs to Congress party and accused No.1 was working as a Driver with Nissar and he has won the election against Nissar. In the further crossexamination, he has admitted that he has not given any statement to the Police stating that P.W.1 told that the accused have committed rape on her. Even on perusal of the evidence and admission of this witness and evidence of P.W.1, she has not stated that the accused have committed rape on her, when she met P.W.2 on the said night. Even in the complaint, it is not revealed by her or any other Village people about the commission of rape on P.W.1. This witness also admitted that he knows Venkatesh and P.W.1 also told that Venkatesh accompanied accused No.1 on the said date. He further stated that while lodging the complaint, she has not shown the name of accused No.2-Ravi Kiran, but mentioned accused No.2 as Venkatesh. This witness has denied the suggestion that due to political enmity, the accused have been falsely implicated. His evidence goes to show that P.W.1 has not told anything to him, but brother of P.W.1 told that the accused have committed rape on her. He has clearly admitted that they have not named accused No.2-Ravi Kiran, but they have named one Venkatesh in the complaint. His evidence goes to show that P.W.1 has not told anything to him, but brother of P.W.1 told that the accused have committed rape on her. He has clearly admitted that they have not named accused No.2-Ravi Kiran, but they have named one Venkatesh in the complaint. If at all, P.W.1 has been raped by accused Nos.1 and 2, she could have informed in the Police Station while lodging the complaint, but she has not whispered anything about the commission of rape on her by the accused. 8.3 P.W.5-Mohammed Thoufiq Ahmed is a panch witness to seizure of motorbike of the accused under Ex.P7 and identified the photographs of the vehicle. 8.4 P.W.6-Muneer Khan is one of the panch witnesses to the spot panchanama, where MOs.5 and 6 were seized by the Police. He has supported the case in respect of seizing of MOs.5 and 6 and he also speaks about seizure of motorbike under Ex.P7. Seizure of MOs.5 and 6 and seizure of motorbike were not disputed by the accused. 8.5 P.W.3-Dr. Shreya M.S. has deposed that on 29-3-2015 at 10:50 p.m., she has examined P.W.1 on the history of sexual assault by two persons. She has found following injuries on P.W.1: i. Petechial hemorrhage both left and right cheek; ii. Swelling and redness over lips; iii. Small scratch on dorsum on the right upper limb, and iv. Multiple bruise over lower limbs. On examination, she found 0.5 x 0.5 cm tear injury over introitus and hymen not intact. She has collected vaginal smear, vaginal swab, vulval swab, hand nail clipping, public hair, chudidar top, pant, veil and bra for examination and gave report as per Ex.P3 that there are signs suggestive of recent use of forceful penetration of vagina-anus and sexual violence cannot be ruled out. She has stated that the injuries are simple in nature and there are chances of sustaining above injuries, if a lady is dragged to sexual assault. During cross-examination, she has stated that prior to examining P.W.1, the P.W.1 was examined by Kudur Primary Health Centre and Government Hospital at Magadi, however, she has not received any such information either in document or by P.W.1. Evidence of this witness goes to show that P.W.1 was not referred by those Doctors. During cross-examination, she has stated that prior to examining P.W.1, the P.W.1 was examined by Kudur Primary Health Centre and Government Hospital at Magadi, however, she has not received any such information either in document or by P.W.1. Evidence of this witness goes to show that P.W.1 was not referred by those Doctors. She further states that they are maintaining Medical Record in their hospital and they have mentioned the case number, but she has not produced any legal evidence to the Court. This witness also admits that she has not collected the undergarments of P.W.1 and she has not noticed the signs of sperms or bloodstains on the clothes of P.W.1 and unable to say, whether the tear of hymen was fresh or older one. Though she has stated that there were bloodstains and hymen was tear, but unable to say regarding commission of rape. She further admits that, when forcible rape is committed on a woman on the ground, there are chances of sustaining injuries on the back bone and buttocks and there are chances of clothes becoming soily, but no such thing was found on P.W.1 and no such soily was found on her clothes. She further admits that she has not collected the bloodstains and hymen rupture would be caused by cycling and other reasons also other than rape and such injury found on P.W.1 goes to show that she has resisted while committing rape or any scratch marks on her body. 9. On perusal of evidence of P.W.3- Dr. Shreya M.S., she has not firmly stated that P.W.1 was subjected to commission of rape and since the tear of hymen was new one, she has not mentioned the shape of it. As per the evidence, there must be injuries on the buttocks and the back of the victim, if she was subjected to forcible rape. Apart from that, clothes of P.W.1, i.e. MOs.1 to 4, vaginal smear, vaginal swab, vulval swab, hand nail clipping, public hair and MOs.5 and 6 were sent to the F.S.L., but the F.S.L. report was negative and no seminal stains were found on any of the articles sent to the F.S.L. 10. Apart from that, evidence of P.W.4- Dr. Pradeep Kumar, who examined accused Nos.1 and 2, gave the medical examination report as per Exs.P4 and P5 that there is no evidence of recent sexual act. Apart from that, evidence of P.W.4- Dr. Pradeep Kumar, who examined accused Nos.1 and 2, gave the medical examination report as per Exs.P4 and P5 that there is no evidence of recent sexual act. The clothes of accused No.1, i.e. MOs.7 to 10 and clothes of accused No.2, i.e. MOs.11 to 13 were sent to the F.S.L., but there was no seminal stains found on the clothes of the accused. This witness also admits in the cross-examination that if the accused attempted to have forcible sexual intercourse in a dry garden land, there are chances of sustaining scratch injuries on the legs, palms and hands, but no such injuries were found on the body of the accused. This witness further admits that, since 2009, he has been working in Forensic Medicine Department and he has examined as many as 50 persons based upon the history of sexual assault. He has clearly admitted that during sexual assault, if the victim tried to escape from the clutches of the assailant, there are chances of injury even on the assailant. As per the evidence of this witness and on examination of P.W.1 by P.W.3-Dr. Shreya M.S., they have not found any such injuries or scratch marks on the body of the accused or P.W.1 and no such skin tissues found on nail clipping of P.W.1 in order to show that P.W.1 tried to escape and caused any injury on the accused at the time of offence. 11. On perusal of the evidence of P.W.1 compared with P.Ws.3 and 4-medical witnesses, the evidence of P.W.1 does not corroborates with the evidence of medical witnesses to prove the contention of the prosecution that P.W.1 was forcibly raped by accused Nos.1 and 2 on the alleged date, time and place mentioned by her. 12. No doubt, there was some hymen rupture, but as per the medical evidence, the Doctor has opined that hymen rupture would be caused other than intercourse and due to cycling or penetration of any material. When forcible rape is committed on P.W.1, if she has really resisted the accused, there must be some injury found either on accused Nos.1 and 2 or scratch marks or other marks on back of P.W.1 and there is no seminal stains found on clothes. When forcible rape is committed on P.W.1, if she has really resisted the accused, there must be some injury found either on accused Nos.1 and 2 or scratch marks or other marks on back of P.W.1 and there is no seminal stains found on clothes. P.W.1 has not whispered anything about rape at the first instance while lodging the complaint-Ex.P1 to the Police, but same was developed in the further statement, that too, after examination by the Doctor, who suspected the intercourse. However, P.W.4-Doctor, who examined accused Nos.1 and 2, has categorically stated that the accused have not at all had any recent sexual intercourse. Apart from that, there was enmity between brothers of P.W.1 and the accused, who had worked in favour of one Nissar in the election. They belong to different political parties. Therefore, there is every chance of falsely implicating the accused by P.W.1. In this regard, the learned counsel relied upon the following judgments of the Hon'ble Supreme Court: 12.1 In the case of ABBAS AHMAD CHOUDHARY v. STATE OF ASSAM, (2010) 12 SCC 115 , wherein at paragraph No.9, it held as under: "9. We are, however, of the opinion that the involvement of Abbas Ahmad Choudhary seems to be uncertain. It must first be borne in mind that in her statement recorded on 17-9-1997, the prosecutrix had not attributed any rape to Abbas Ahmad Choudhary. Likewise, she had stated that he was not one of those who kidnapped her and taken to Jalalpur Tea Estate and on the other hand she categorically stated that while she along with Mizazul Haq and Ranju Das were returning to the village that he had joined them somewhere along the way but had still not committed rape on her. Likewise, she had stated that he was not one of those who kidnapped her and taken to Jalalpur Tea Estate and on the other hand she categorically stated that while she along with Mizazul Haq and Ranju Das were returning to the village that he had joined them somewhere along the way but had still not committed rape on her. It is true that in her statement in court she has attributed rape to Abbas Ahmad Choudhary as well, but in the light of the aforesaid contradictions some doubt is created with regard to his involvement." 12.2 In the case of RAJA AND OTHERS v. STATE OF KARNATAKA, (2016) 10 SCC 506 , wherein it has held as under: "A. Penal Code, 1860 - Ss.376(2)(g)/366/392 r/w S.34 - Gang rape after abduction - Appreciation of evidence - Inconsistent testimony of prosecutrix - Her conduct after alleged rape, dubious - Medical opinion belies allegation of gang rape - Plea of false implication cannot be discarded - Seizures effected by investigating agency also do not inspire confidence - Charge not proved beyond reasonable doubt - Benefit of doubt - Entitlement to - Reversal of acquittal by high Court, set aside - All accused acquitted." 12.3 In the case of RAI SANDEEP ALIAS DEEPU v. STATE (NCT OF DELHI), (2012) 8 SCC 21 , wherein it has held as under: "A. Penal Code, 1860 - S.376(2)(g) - Gang rape - Appreciation of evidence - Material contradictions - Totally conflicting versions of prosecutrix, from what was stated in complaint and what was deposed before court - Conviction reversed - Oral as well as forensic evidence not supporting case of prosecution - Prosecutrix (P.W. 4) alleging forcible sexual intercourse by both appellant-accused, after entering her sister's house, where she was staying, 'by knocking at the door in the night at about 1.30 a.m. - Only a minor abrasion on right side of neck below jaw, and no other injury on private parts of prosecutrix, although it was allegedly a forcible gang rape - There are material variations in complaint and deposition of prosecutrix in court as regards identification of accused persons, as well as manner in which occurrence took place - Socalled eyewitnesses (P.W.s 10 and 11, niece and nephew of prosecutrix, respectively, who were present in house when incident allegedly took place) did not support story of prosecution - Recoveries failed to tally with statements made. B. Criminal Trial - Witnesses - Generally - "Sterling witness" - Characteristics of, summarized - Evidence Act, 1872, Ss.155 and 137 Held: A "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have corelation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged." 12.4 Further, unreported judgment in the case of SHAM SINGH v. THE STATE OF HARYANA in Criminal Appeal No.544 of 2018 decided on 21-8-2018, wherein it has held at paragraph No.23 is as under: "23. The evidence of the victim/prosecutrix and the Aunt P.W.10 are unreliable, untrustworthy inasmuch as they are not credible witnesses. Their evidence bristles with contradictions and is full of improbabilities. We cannot resist ourselves to place on record that the prosecution has tried to rope in the appellant merely on assumptions, surmises and conjectures. The story of the prosecution is built on the materials placed on record, which seems to be neither the truth, nor wholly the truth. The findings of the court below, though concurrent, do not desire the merit of acceptance or approval in our hands with regard to the glaring infirmities and illegalities vitiating them, and the patent errors apparent on the face of record resulting in serious and grave miscarriage of justice to the appellant." 13. Similarly, in this case, P.W.1 gave complaint only for attempting to outrage her modesty and there is no complaint for committing rape on her, but later she has improved her version in the further statement that the accused have committed forcible rape on her and there were so many houses near the place of occurrence and she has not raised any hue and cry and tried to resist the accused by scratching the body of the accused and no injury found on her back and buttocks. Medical evidence not sure about the fresh hymen rupture. Medical evidence not sure about the fresh hymen rupture. Evidence of P.W.4 goes to show that there is no recent intercourse by accused persons. The undergarments of P.W.1 were not seized. Chudidar top, pant, veil and bra of P.W.1 and clothes of the accused were not found any bloodstains or seminal stains. Even the vaginal smear, vaginal swab and vulval swab do not contain any seminal stains of the accused. The F.S.L. reports- Exs.P3, P4 and P5 do not support the case of the prosecution. Ex.P10 is acknowledgment for having received the reports from F.S.L., but the same were not placed before the Court by the Investigating Officer. This Court can draw an adverse inference that prosecution suppressed the F.S.L. reports as it could be negative and may be against the prosecutrix. Absolutely, there is no corroborative evidence in support of the case of the prosecution. It is well settled law that in a rape case, the evidence of prosecutrix is enough to base the conviction. In the case on hand, there are lot of contradictions in the evidence of prosecutrix and in the complaint. There is improvement in her version. There is political rivalry between the brothers of P.W.1 and the accused. Therefore, there are every chances of falsely implicating the accused is not ruled out. Therefore, as held by the Hon'ble Supreme Court in the above stated cases, the prosecution is required to prove the case of rape against the accused beyond all reasonable doubt. The evidence of P.W.1 given in different version and different stages stating that one Venkatesh committed rape and later, she has changed accused No.2 as Ravi Kiran instead of Venkatesh. The Police have arrested Venkatesh and let him and not filed any charge-sheet against him. P.W.1 has not shown the spot to the Police, whereas P.W.2, who has not at all seen the spot, has shown the spot to the Police and the Police have prepared Ex.P2. These facts go to suggest that the evidence of the prosecutrix is doubtful and untrustworthy. Based upon assumptions, surmises and conjectures, it cannot be believed. Therefore, benefit of doubt has to be extended to accused No.1 and when two versions are possible, the version favourable to the accused has to be accepted. These facts go to suggest that the evidence of the prosecutrix is doubtful and untrustworthy. Based upon assumptions, surmises and conjectures, it cannot be believed. Therefore, benefit of doubt has to be extended to accused No.1 and when two versions are possible, the version favourable to the accused has to be accepted. P.W.1 may be consenting party for the sexual intercourse or there may not be any offence of rape committed, but she has stated that accused No.1 has tried to outrage her modesty, later she has improved the version due to political enmity between the accused and her brothers. On both way, the benefit of doubt shall have to be extended to the accused and the prosecution has failed to prove the case of rape on P.W.1 beyond all reasonable doubt. Though the trial Court acquitted accused No.2, but failed to appreciate the entire evidence on record and medical evidence, which was against the prosecution. Thereby, the trial Court committed an error in convicting accused No.1 based upon the evidence of prosecutrix and prosecution witnesses. Therefore, the appeal deserves to be allowed and accused No.1 is also entitled for benefit of doubt on par with accused No.2. Accordingly, I proceed to pass the following ORDER i. Appeal is allowed; ii. The judgment of conviction and order on sentence dated 24-7-2017 passed by the III Additional District and Sessions Judge, Ramanagara, in Sessions Case No.71 of 2015 is hereby set aside; iii. Accused No.1 is hereby acquitted of the charges leveled against him for the offences punishable under Sections 363, 323 and 376 of I.P.C.; and iv. The Registry is hereby directed to communicate this order to the concerned Jail Authorities for release of accused No.1 forthwith, if he is not required in any other case.