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2019 DIGILAW 41 (UTT)

Gulab Singh Alias Kunal v. State of Uttarakhand

2019-01-09

RAVINDRA MAITHANI, SUDHANSHU DHULIA

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JUDGMENT : RAVINDRA MAITHANI, J. 1. Both these appeals are being decided by this common judgment as these appeals have been preferred against the common judgment and order dated 28.02.2017, passed by learned Fast Track Court/ Additional Sessions Judge/Special Judge, POCSO, Haridwar, in Sessions Trial No. 335 of 2013, State Vs. Gulab Singh @ Kunal and another, whereby appellants Gulab Singh @ Kunal and Mukesh Kumar have been convicted under Section 376-D, 376 (2)(n), 307/34, 419, 420, 467, 468 and 471 I.P.C. and sentenced as hereunder: “(i) Twenty years’ rigorous imprisonment and a fine of Rs.1,00,000/- each. In default of payment of fine, simple imprisonment for a period of ten months each under Section 376 D I.P.C. (ii) Ten years’ rigorous imprisonment and a fine of Rs.50,000/- each. In default of payment of fine, simple imprisonment for a period of five months each under Section 376 (2)(n) I.P.C. (iii) Ten years’ rigorous imprisonment and a fine of Rs.10,000/- each. In default of payment of fine, simple imprisonment for a period of one month’s each under Section 307/34 of I.P.C. (iv) Three years’ rigorous imprisonment and a fine of Rs.5,000/- each. In default of payment of fine, simple imprisonment for a period of fifteen days’ each under Section 419 of I.P.C. (v) Five years’ rigorous imprisonment and a fine of Rs.10,000/- each. In default of payment of fine, simple imprisonment for a period of one month’s each under Section 420 of I.P.C. (vi) Five years’ rigorous imprisonment and a fine of Rs. 10,000/- each. In default of payment of fine, one month’s simple imprisonment each under Section 467 I.P.C. (vii) Five years’ rigorous imprisonment and a fine of Rs. 10,000/- each. In default of payment of fine, one month’s simple imprisonment each under Section 468 I.P.C. (viii) Five years’ rigorous imprisonment and a fine of Rs. 10,000/- each. In default of payment of fine, one month’s simple imprisonment each under Section 471 I.P.C.” 2. Prosecution case, briefly stated is that the prosecutrix PW1 had an acquaintance with the appellant Gulab Singh @ Kunal since 2012, when by dialing a wrong number, she got in contact with him. Thereafter, they started speaking to each other. 10,000/- each. In default of payment of fine, one month’s simple imprisonment each under Section 471 I.P.C.” 2. Prosecution case, briefly stated is that the prosecutrix PW1 had an acquaintance with the appellant Gulab Singh @ Kunal since 2012, when by dialing a wrong number, she got in contact with him. Thereafter, they started speaking to each other. The appellant Gulab Singh @ Kunal introduced himself as an officer of the income tax department and had assured her a job in the income tax department, but for that he had asked the prosecutrix to visit Haridwar. Two days prior to the date of incident, the appellant Gulab Singh @ Kunal telephoned the prosecutrix, and asked her to come to Haridwar on 15.07.2013 for her interview. Believing the assurance of the appellant Gulab Singh @ Kunal, the prosecutrix reached Haridwar on 05.07.2013. At the bus stop, appellant Gulab Singh @ Kunal alongwith one of his friends, received her. He was in his car Swift Dzire, bearing registration no. UK-08-AB-3233. The vehicle had a plate on its front with the inscription ‘Bharat Sarkar’. The appellant introduced the person accompanying him as the appellant Mukesh Garg, a senior officer in the income tax department. Appellant Gulab Singh @ Kunal also told the prosecutrix that as a formality, her interview has to be taken at Sukhdham Bhawan, Bhupatwala. Believing it once again, the prosecutrix boarded the car and reached Sukhdham Bhawan, where the appellants got room no.11 opened and they entered the room. As soon as they entered the room, the appellant Gulab Singh @ Kunal asked the prosecutrix to sleep with them, in return for the Government job. The prosecutrix was shocked to hear it, and she realized that she has been trapped. She tried to open the door and run away but both the appellants caught hold of her and dropped her to the bed. The clothes of the prosecutrix were forcibly removed and first the appellant Gulab Singh @ Kunal had sexual intercourse and oral sex with her, and then the appellant Mukesh Garg had sexual intercourse with her and then twice again, the appellant Gulab Singh @ Kunal had sexual intercourse with her. In this process, according to the first information report, both the appellants helped each other, by overpowering the prosecutrix. Somehow, the prosecutrix released herself from the clutches of the appellants and went inside the bathroom. In this process, according to the first information report, both the appellants helped each other, by overpowering the prosecutrix. Somehow, the prosecutrix released herself from the clutches of the appellants and went inside the bathroom. She dialed police D.G.P. control room at number 9411112780, and informed about the incident and sought assistance. As the prosecutrix was in the bathroom, the appellants broke open the door of bathroom and tried to kill her by pressing her neck meanwhile, Police came and rescued her. The prosecutrix gave written account of this incident to the Police and at the place of incident itself, both the appellants were arrested. The undergarments of the prosecutrix and of both the appellants were recovered. The bed sheet and the plate with the inscription ‘Bharat Sarkar’ was also recovered from the car and a Case Crime No. 506 of 2013 under Sections 419, 420, 467, 468, 471, 376(2)(n), 376-D and 307 I.P.C. was registered against the appellants at 4:30 p.m. at Police Station - Kotwali Haridwar. The appellants and the prosecutrix were medically examined. 3. Investigation was carried out and after investigation, charge-sheet under Sections 419, 420, 467, 468, 471, 376(2)(n), 376-D and 307 I.P.C. was submitted against the appellants in the court of Chief Judicial Magistrate, Haridwar on 05.10.2013. Since the offences were exclusive triable by the court of sessions, the case was committed to the court of sessions for trial. The charges under Sections 419, 420, 467, 468, 471, 376(2)(n), 376-D and 307 r/w 34 I.P.C. were framed against the appellants on 03.12.2013, to which they denied and claimed trial. 4. Prosecution examined as many as ten witnesses in support of its case namely PW1 Shyam Sundari, PW2 Dr. Alpana Khare, PW3 Dilmohan Singh, PW4 Constable Mukesh Rawat, PW5 Head Constable Pramod Kandari, PW6 Shiv Bihari Mishra, PW7 Sub-Inspector Sanjeev Mamgain, PW8 Sub-Inspector Neelam Rawat, PW9 Sub-Inspector Manohar Singh and PW10 Dr. Manoj Agarwal. 5. Appellants were examined under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Code’). In his statement under Section 313 of the Code, appellant Gulab Singh @ Kunal stated that he has been falsely implicated in the case. Similarly, appellant Mukesh Kumar has also stated that he has also been falsely implicated in the case and on 15.07.2013, Police had called him at Police Station and falsely implicated him. In his statement under Section 313 of the Code, appellant Gulab Singh @ Kunal stated that he has been falsely implicated in the case. Similarly, appellant Mukesh Kumar has also stated that he has also been falsely implicated in the case and on 15.07.2013, Police had called him at Police Station and falsely implicated him. After considering the material on record, learned trial court convicted and sentenced the appellants, as stated hereinabove. Aggrieved, appellants have preferred these two appeals. 6. Heard Ms. Pushpa Joshi, learned Sr. Advocate for the appellant Gulab Singh @ Kunal, Mr. Arvind Vashistha, learned Sr. Advocate for the appellant Mukesh Kumar, Mr. Amit Bhatt, learned Deputy Advocate General for the State and Mr. Deep Chandra Joshi, Advocate for the complainant and perused the record. 7. Ms. Pushpa Joshi, learned Sr. Advocate appearing for the appellant Gulab Singh @ Kunal would argue that the statement of the PW1 prosecutrix is not trustworthy and it is wavering. There are gross inconsistencies and contradictions in her statement; the statement of PW1 prosecutrix is not corroborated by any medical evidence. Prosecution story is totally improbable and unbelievable. Arrest is alleged to have been made from a public place i.e. Sukhdham Bhawan, but neither any employee of Sukhdham Bhawan nor any independent person has been made witness to the arrest or recoveries, therefore, it is argued that the prosecution utterly failed to prove the charges against the appellants and the impugned judgment and order dated 28.02.2017 deserves to be set aside and appeal allowed. 8. Mr. Arvind Vashistha, learned Sr. Advocate for the appellant Mukesh Kumar also argued that the statements of PW1 prosecutrix are not believable and trustworthy, because it is inconsistent, contradictory and wavering. It is further argued that the presence of appellant Mukesh Garg has not been established even by the statement of PW1 prosecutrix, who had no occasion to know the appellant Mukesh Garg and as such, she has not even identified him in the court. It is argued that the prosecution has failed to prove the charges against appellant Mukesh Garg, therefore, the impugned judgment and order dated 28.02.2017 deserves to be set aside and appeal allowed. 9. In support of their contentions, learned counsel appearing for the appellants placed reliance on the principles of law as laid down in the case of Rai Sandeep alias Deepu Vs. 9. In support of their contentions, learned counsel appearing for the appellants placed reliance on the principles of law as laid down in the case of Rai Sandeep alias Deepu Vs. State (NCT of Delhi) and others, (2012) 8 SCC 21 , in para 22 of it, Hon’ble Court has held as under:- “22. In our considered opinion, the “sterling witness” should be of a very high quality and caliber 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 co-relation 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.” 10. On the other hand, Mr. Amit Bhatt, learned Deputy Advocate General for the State would argue that the appellants lured prosecutrix. She was an innocent girl, who, on believing the appellants that she might get a job in the income tax department, came to Haridwar but the appellants betrayed the trust, took the prosecutrix to Sukhdham Bhawan and repeatedly raped her. Fortunately, the prosecutrix could manage to go to bathroom and called the Police. Police reached at the spot and in the half naked state, the appellants and the prosecutrix were found in the room. It is argued that the evidence of PW1 prosecutrix is natural and believable. Her statements are corroborated by the statements of other witnesses, who reached at the spot on receiving a phone call from the prosecutrix and also from the statements of the employees of Sukhdham Bhawan. 11. Mr. Amit Bhatt, learned Deputy Advocate General would further argue that learned trial court has rightly convicted and sentenced the appellants and there is no reason to interfere in the impugned judgment and order dated 28.02.2017, therefore, instant appeals deserve to be dismissed. 12. In support of his contention, learned Deputy Advocate General has placed reliance upon the principles of law, as laid down in the cases of B.C. Deva alias Dyava Vs. State of Karnataka, (2007) 12 SCC 122 and Vishnu @ Undrya Vs. State of Maharashra, 2005 (8) Supreme 165 . 12. In support of his contention, learned Deputy Advocate General has placed reliance upon the principles of law, as laid down in the cases of B.C. Deva alias Dyava Vs. State of Karnataka, (2007) 12 SCC 122 and Vishnu @ Undrya Vs. State of Maharashra, 2005 (8) Supreme 165 . In the case of B.C. Deva alias Dyava (supra), Hon’ble Court, inter alia, held as under:- “18 The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though the report of the gynecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted.” 13. In the case of Vishnu @ Undrya (supra), Hon’ble Court, inter alia, held as under:- “In the traditional non-permissive bounds 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 suitable match. Not only she would be sacrificing her future prospect of getting married and having 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.” 14. PW1 is the prosecutrix. In her statements, she has reiterated the contents of the First Information Report. According to her in the year 2012, by dialing a wrong number, she spoke to the appellant Gulab Singh @ Kunal. Thereafter, appellant Gulab Singh @ Kunal started talking to her. He had introduced himself as an officer of the income tax department. According to this witness, she is a graduate and was looking for a job. Appellant Gulab Singh @ Kunal had assured that he would get her a job in the income tax department. Two days prior to the incident, appellant Gulab Singh @ Kunal telephoned her saying that she has to come Haridwar for an interview on 15.07.2013. She reached Haridwar bus stop, where appellant Gulab Singh @ Kunal received her in his car Swift Dzire bearing no. UK-08-AB-3233. Two days prior to the incident, appellant Gulab Singh @ Kunal telephoned her saying that she has to come Haridwar for an interview on 15.07.2013. She reached Haridwar bus stop, where appellant Gulab Singh @ Kunal received her in his car Swift Dzire bearing no. UK-08-AB-3233. There was a plate with the inscription ‘Bharat Sarkar’ in front of the car. Considering the vehicle to be a government vehicle, she stepped inside the car. Appellant Gulab Singh @ Kunal was driving the car and the person who was sitting by his side was introduced as Mukesh Garg, a senior officer in the income tax department. The appellants told her that as a formality, her interview was to be taken at Sukdham Bhawan. Believing the statements of the appellants as true, she accompanied them to Sukhdham Bhawan, where they got room no.11 opened. As they entered into the room appellant Gulab Singh @ Kunal offered to have physical relations with her and told that she could get the job only when she sleeps with them. According to PW1 prosecutrix, she was shocked beyond belief and realized that she has been trapped in wrong hands. She tried to run away but both the appellants caught hold of her and laid her on the bed and then by assisting each other, first appellant Gulab Singh @ Kunal had sexual intercourse and oral sex with her, and later appellant Mukesh Garg had sexual intercourse with her. According to PW1 prosecutrix, again appellant Gulab Singh @ Kunal had twice sexual intercourse with her. This witness tried to shout, but her mouth was gagged and she was threatened of her life. Somehow, she could manage to go to bathroom and bolted the door from inside. She tried to telephone the Police at number 100, but she could not get it. Thereafter, she telephoned the D.G.P. control room number 9411112780 and informed about the incident. She was assured that she would be provided immediate police help. According to PW1 prosecutrix, when the appellant had broke open the door of the bathroom, she was scared. The appellants caught hold of her and started throttling her, when the Police reached the spot. They pushed the door open and rescued the prosecutrix. According to PW1 prosecutrix, this incident happened between 12:30 p.m. to 2:30 p.m. When Police entered into the room, she and the appellants were in a half naked state. The appellants caught hold of her and started throttling her, when the Police reached the spot. They pushed the door open and rescued the prosecutrix. According to PW1 prosecutrix, this incident happened between 12:30 p.m. to 2:30 p.m. When Police entered into the room, she and the appellants were in a half naked state. Her lower under garments were taken into custody by the Police. Police also recovered the plate fixed at the front of car with the inscription ‘Bharat Sarkar’. This witness also proved F.I.R., which, according to her, she gave to the Police at the place of occurrence itself. 15. PW2 Dr. Alpana Khare, examined the prosecutrix on 15.07.2013 at District Female Hospital, Haridwar. According to her, the condition of the prosecutrix was normal. She observed as hereunder:- “1. Breast well developed, auxiliary hair well developed. 2. Labia Majora and Labia Minora well developed. 3. No signs of injury over genital. 4. Vagina admitting two fingers easily. According to this witness, vaginal smear was taken for pathological examination of spermatozoa dead or live and prosecutrix was also referred to Chief Medical Officer for age determination. This witness proved her supplementary report, which was based on the report of the pathologist, according to which, no dead or live spermatozoa were found in the vaginal smear. 16. PW3 is Dilmohan Singh, Sub-Inspector, who was in-charge Police Chauki Saptrishi on 15.07.2013. According to this witness, on that day, at about 02.41 p.m. he got a telephone call from the Station House Officer of the Kotwali Nagar, Haridwar informing him about the gang rape at Sukhdham Bhawan. On this information, according to this witness, he alongwith Police Constable Mukesh Rawat rushed towards Sukhdham Bhawan, where other Police Officers had also arrived. In Sukhdham Bhawan while inquiring from the employees, they reached room no. 11 and heard the shouting voice of a girl. They pushed the door open and saw two persons and a girl in half naked state in the room. The girl was PW1 prosecutrix, who told them that the appellants had assured her to get a job in the income tax department and called her at Haridwar and from bus stop they brought her in a car at Sukhdham Bhawan and raped her. The two persons were the appellants. The girl was PW1 prosecutrix, who told them that the appellants had assured her to get a job in the income tax department and called her at Haridwar and from bus stop they brought her in a car at Sukhdham Bhawan and raped her. The two persons were the appellants. This witness also narrated the action which he took regarding taking of the articles in his custody and arrest of the appellants. PW4 Constable, Mukesh Rawat had accompanied PW3 Dilmohan Singh to Sukhdham Bhawan. 17. PW5 Head Constable, Pramod Kandari is a formal witness, who has recorded the chick F.I.R. and registered the case. 18. PW6 Shiv Bihari Mishra was an employee of Sukhdham Bhawan on the relevant date. According to him, on 15.07.2013, appellant Mukesh Garg came to Sukdham Bhawan and introduced himself as a trustee Ramesh Kant and when it was found that there is no trustee named Ramesh Kant, Mukesh Garg talked to the Manager and thereafter room no. 11 was allotted to him. According to this witness, appellant Gulab Singh @ Kunal and one more girl had joined him and they went into the room no. 11 and for about, 1½- 2 hours, they did not hear any voice from room no.11. According to this witness after they had checked out, a girl crying out came at the reception and thereafter police arrived. 19. PW7 is Sub-Inspector, Sanjeev Mamgain who had conducted the investigation. 20. PW8 Sub-Inspector, Neelam Rawat is the person who received telephonic call from the telephone no. 8171198704 at her telephone no. 9411112780 at about 2:25 p.m. on 15.07.2013. A girl from the other side informed that she is speaking from room no. 11 of Sukdham Bhawan and two persons have raped her, who are now trying to kill her. According to this witness, hearing it, firstly she informed Women Cell, Haridwar, thereafter, Station House Officer, Khankhal, and then Station House Officer, Police Station Kotwali Nagar Haridwar. This witness further states that later she inquired about the action taken from the Station House Officer, Kotwali Nagar Haridwar and she was told that two accused had been arrested from Sukhdham Bhawan. She made relevant entry in the register, kept for the purpose. 21. PW9 Sub-Inspector, Manohar Singh has taken investigation from PW7 Sub-Inspector Sanjeev Mamgain and further investigated the case and submitted a chargesheet against the appellants. 22. PW10 Dr. She made relevant entry in the register, kept for the purpose. 21. PW9 Sub-Inspector, Manohar Singh has taken investigation from PW7 Sub-Inspector Sanjeev Mamgain and further investigated the case and submitted a chargesheet against the appellants. 22. PW10 Dr. Manoj Kumar Agarwal is a Senior Assistant Scientist, Forensic Science Laboratory, Dehradun, who proved the report submitted by him with regard to semen detection on undergarments and bed sheet recovered by Police from the scene of occurrence. According to this witness, semen was detected on the undergarments of the appellants but it was not detected on the bed-sheet recovered from Room No. 11 of Sukhdham Bhawan and underwear of the prosecutrix. 23. The appellants were examined under Section 313 of the Code. Both the appellants have stated that they have been falsely implicated in the case. In defence, six witnesses have been examined by the appellants namely DW1 Smt. Shiv Devi, DW2, That Singh, DW3 Rajesh Kumar, DW4 Durgesh Kumar Singh, DW5 Prashant Bhushan and DW6 Rajeev Singh Sengar. 24. DW1 is mother of the prosecutrix. She mentions the name of one Raj Bahadur, who was their neighbour in Dehradun. Her husband was also employed in District Jail, Dehradun, where Raj Bahadur was also an employee. According to her, prosecutrix is her youngest daughter, who is not staying with them, for the last two and a half years. They wanted to marry her, but the prosecutrix was never ready for it. She would decline to marry, sometime Raj Bahadur would say no to the marriage proposals. According to her, about two years and four months back on 14th, on Sunday, Raj Bahadur took the prosecutrix from her house saying that he would get a job in police department and her examination is at Rishikesh and then at Roorkee, on the next day. According to her, she also expressed the desire to accompany them, but Raj Bahadur told that the prosecutrix is like his daughter to him. The prosecutrix returned home after three days and after some days, they came to know that a rape case has been lodged against the appellants, which according to this witness was false. 25. DW2 is one That Singh, who states that appellant Gulab Singh @ Kunal and Raj Bahadur and states about some money dispute between Raj Bahadur and appellant Gulab Singh @ Kunal. 26. DW3 is Rajesh Kumar. 25. DW2 is one That Singh, who states that appellant Gulab Singh @ Kunal and Raj Bahadur and states about some money dispute between Raj Bahadur and appellant Gulab Singh @ Kunal. 26. DW3 is Rajesh Kumar. According to this witness, he got a deal of plot done between Raj Bahadur and appellant Mukesh Garg, but thereafter, the deal could not materialize, and they both started abusing each other. 27. DW4 Durgesh Kumar Singh, who is a Manager (Legal) in Idea Cellular Company, has produced the record of mobile no.8057269641 dated 09.01.2016. 28. DW5 Prabhat Bhusan, who is an Assistant Nodal and Regulatory Officer in Vodafone Company, has given the details of the mobile no.8006266537 and its call details. 29. DW6 Rajeev Singh Senghar, who is Chief Nodal Officer in Bharti Airtel Ltd., has produced in the court the details of mobile no.8979072480. According to him, Mukesh Garg had applied for this mobile number as prepaid number. 30. This is a case, in which, according to the prosecution, when PW1 prosecutrix was gang raped by the appellants, she rescued herself and went inside the bathroom on some pretext and called the police. Police came and the appellants were apprehended. The appellants case is that this story cannot be believed. 31. Arguments have also been advanced to distort the prosecution story about the presence of appellant Mukesh Garg at Sukhdham Bhawan. Appreciation of evidence can never be done in isolation, each and every statement is weighed in connection with its relation with other attending factors, the background, in which the statement is made, and other relevant factors. 32. In the instant case also, few facts need to be kept into consideration while appreciating the evidence. The facts are that, according to PW1 prosecutrix, she had acquaintance with the appellant Gulab Singh @ Kunal, since 2012. It is PW1 prosecutrix, who wrongly dialed the number, got connected to the appellant Gulab Singh @ Kunal and then the relationship began. PW1 prosecutrix has categorically stated that thereafter appellant Gulab Singh @ Kunal started talking to her over telephone frequently, twice a month. Not only this, she has further stated in her cross examination that once the appellant Gulab Singh @ Kunal had come to Dehradun and met her at examination centre. The appellant Gulab Singh @ Kunal, at that time had enquired as to how she did in her examination. Not only this, she has further stated in her cross examination that once the appellant Gulab Singh @ Kunal had come to Dehradun and met her at examination centre. The appellant Gulab Singh @ Kunal, at that time had enquired as to how she did in her examination. Appellant Gulab Singh @ Kunal, according to PW1 prosecutrix, had introduced himself as an officer in the income tax department. PW1 prosecutrix was a graduate and was looking for a job. Her father was posted in District Jail, Dehradun. She has also stated in her cross examination that her two brothers were also working in police department and at that relevant time, they were posted in two Police Stations at Bahadrabad and Pathri in District Haridwar. 33. It is also a factor in the instant case that DW1 the mother of the PW1 prosecutrix has not supported prosecution case. According to her, PW1 prosecutrix was not staying with her and PW1 prosecutrix never agreed for marriage and she declined it many a time and many a time Raj Bahadur had declined it. According to this witness, father of PW1 prosecutrix and Raj Bahadur both were posted together in District Jail, Dehradun. Raj Bahadur was a frequent visitor to their house and a day prior to the date of incident, this Raj Bahadur had taken PW1 prosecutrix alongwith him on the pretext of her examination at Rishikesh and then at Roorkee. After three days PW1 prosecutrix returned and then they knew that a false case of gang rape was lodged against the appellants. DW2 That Singh & DW3 Rajesh Kumar have stated about the transaction between Raj Bahadur and appellants. 34. Appellant Gulab Singh @ Kunal have also stated in his statement under Section 313 of the Code that in collusion with Raj Bahadur, he has been falsely implicated. Importantly, PW1 prosecutrix has also stated that she was staying in the house of Raj Bahadur from 14. 09.2013, as a tenant and Raj Bahadur and his family also accompanied her on the date, when she was deposing before the court i.e. on 18.10.2014. Why this man Raj Bahadur is so helpful to the prosecutrix? Why prosecutrix left her parents and started living separately, as a tenant in the house of Raj Bahadur? Prosecutrix two brothers were posted in different police stations in district Haridwar. Why this man Raj Bahadur is so helpful to the prosecutrix? Why prosecutrix left her parents and started living separately, as a tenant in the house of Raj Bahadur? Prosecutrix two brothers were posted in different police stations in district Haridwar. She never informed her brothers about the fact that she would be reaching Haridwar for the interview. Even after incident she did neither inform her parents nor her brothers about the rape. At one stage of her cross examination she has stated that in the evening of 15.07.2013, when she saw many missed calls of her parents, she told about it to police and the police informed her parents, who came to see her at Haridwar but they did not stay with her, instead they returned on the same day. In this backdrop, the evidence would be evaluated. 35. It is settled principle of law that minor discrepancies in the statement of the witness are natural and it always transpires confidence. But which discrepancy in the statement of a witness is minor or which is such a major discrepancy, that may doubt the veracity of the statement of a witness, depends upon facts and circumstances of each case. In the instant case, PW1 prosecutrix has in her statement before the court said that when the appellants tried to overpower, she wanted to shout but her mouth was gagged but these facts namely her intention to shout and gagging of mouth by the appellant, are neither written in the FIR nor stated by PW1 prosecutrix in her statement under Section 164 of the Code. This variation in the statements, under the given facts and circumstances of the case cannot be ignored as minor instead it is such variation in the statement of PW1 prosecutrix that it doubts truthfulness of her statement. 36. According to the FIR, when police was called, police came in the room, where PW1 prosecutrix and the appellants were half naked. This is, what has been stated by PW1 prosecutrix in her examination in the court but in her statement given to Magistrate under Section 164 of the Code, PW1 prosecutrix has stated that when appellants forcibly opened the door of bathroom and caught hold of her neck, she some how escaped shouting and reached at the reception of Sukhdham Bhawan, where many peoples were there but none helped her. On this very important aspect the statement of PW1 prosecutrix is inconsistent. 37. PW6 Shiv Bihari Mishra, who was Assistant Manager, at the relevant time at Sukhdham Bhawan also stated that when the appellants had checked out the room, a girl came crying at the reception. But this witness, i.e. PW6 Shiv Bihari Mishra did not support the version of PW1 prosecutrix about the incident of rape, forcibly confining, breaking of the doors of the bathroom. What he says is, in fact, in contradiction to what PW1 prosecutrix has stated. According to PW6 Shiv Bihari Mishra, when appellants have checked out from the room, a girl came crying to the reception and then police reached. 38. PW6 Shiv Bihari Mishra demolishes the version of PW1 prosecutrix that she alongwith appellants was found in the room, in a half naked state. It also falsifies the statement of PW1 prosecutrix given in the court that police forcibly pushed the door of the room and the bolt slipped and the door opened. It further cast doubt on the veracity of the statement PW3 Dilmohan Singh and PW4 Mukesh Rawat regarding arrest of the appellants and recovery of articles from room no. 11 of Sukhdham Bhawan. As stated hereinbefore, even at one stage, in her statement recorded under Section 164 of the Code, PW1 prosecutrix has stated that she on her own reached at the reception, where none helped her. If PW1 prosecutrix had reached at the reception, PW6 Shiv Bihari Mishra was at that place, why she did not narrate the story to him or any other employee of Sukhdham Bhawan. At this juncture, itself reference can be made to some more facts with regard to the opening of the door. PW1 prosecutrix in her examination-in-chief has stated that when she entered in the bathroom, the appellants forcibly broke open the door. In her cross examination, she has stated that police entered the room by pushing the door, due to which, bolt was displaced from its place. Neither map of the site plan shows anything with regard to breaking open of the door or displacement of the bolt of the room or breaking open of the door of the bathroom, nor did PW6 Shiv Bihari Mishra state anything about it. It also cast serious doubt on the truthfulness of the statement of PW1 prosecutrix. 39. Neither map of the site plan shows anything with regard to breaking open of the door or displacement of the bolt of the room or breaking open of the door of the bathroom, nor did PW6 Shiv Bihari Mishra state anything about it. It also cast serious doubt on the truthfulness of the statement of PW1 prosecutrix. 39. According to PW1 prosecutrix, when she went inside the bathroom, she called at D.G.P. Headquarter. Though in her cross examination, she has also stated that she first dialed the number 100 for help but she could not get through. Thereafter, she dialed D.G.P. Control Room at number 9411112780. Very interestingly, this witness does not remember any other telephone number. Although her mother was in police and father was an employee in jail. When asked in the beginning of her cross examination, she could not tell the telephone number of her mother, father, brother and sister or any one. Even when asked, she was not able to tell when she passed her high school examination. 40. How did she remember the telephone number of D.G.P. Control Room alone. Categorically at one place in her cross examination, she has stated that the telephone number of D.G.P. Headquarter was not saved in her telephone. She was asked as to when did she get the telephone number of D.G.P. Control Room, to which, she was not sure. At one place she says that when she was in the first year of her graduation, she knew about this number in the college and in the next sentence she fully ignores as to when and how did she get this number. Does the number by which a call was made at D.G.P. Headquarter belongs to PW1 prosecutrix?. 41. Fact remains that a telephone call was made on 15.07.2013 at 2.25 P.M. from a telephone number 8171198704. Whose number was it? There is no record to show that it is PW1 prosecutrix’s number? There could have been a record of it, which was not forthcoming. 42. PW8 Sub-Inspector, Neelam Rawat was the person, who was present at D.G.P. Headquarter. She has proved the entry made by her on that day it is Ex. A-10. According to which, on 2.25 p.m. she was told by the complainant over the phone that the complainant has been raped and she had confined herself in the bathroom. She wanted the police assistance. She has proved the entry made by her on that day it is Ex. A-10. According to which, on 2.25 p.m. she was told by the complainant over the phone that the complainant has been raped and she had confined herself in the bathroom. She wanted the police assistance. Rape by two persons is not recorded in the entry as proved by PW8 Neelam Rawat. How could PW8 Neelam Rawat say that over telephone she was informed that two persons raped a girl? Did she remember it? because it is not on record. According to this witness, in the evening, she got action taken report on it, and it is only thereafter she came to know that two persons have been arrested in the matter. Now this document, which is Ex. A10, gains a little more importance because according to it, a call has been received at D.G.P. Headquarter at about 2.25 p.m. and finally PW8, Sub-Inspector, Neelam Rawat informed the Station House Officer, Kotwali Nagar, Haridwar about it. 43. PW3 Dilmohan Singh, Sub-Inspector states that on the date of incident i.e. 15.07.2013 at about 02:41 p.m. he got a telephone call informing him about the gang rape at Sukhdham Bhawan, then he proceeded. When did he reach at the place of incident. Categorically, time has not been stated in the recovery and arrest report of the appellants. If at 2.41 p.m., PW3 Sub-Inspector, Dilmohan Singh received the information, he might have reached a few minutes thereafter at the place of incident. whereas according to PW-8 Sub-Inspector, Neelam Rawat a call was made at 2.25 p.m. The intervening period is of 16 minutes, which is very important because according to PW1 prosecutrix while escaping from the clutches of the appellants, she went inside the bath room, bolted it from inside and made a call and immediately appellants shouted from outside asking her to open the door of bathroom and they forcibly broke open the door and meanwhile, police came (under Section 164 of the Code, her story is different and according to it, she had reached at the reception). If it is considered as true, it would imply that after making phone call at 02.25 p.m. for at least about 16 minutes, the appellants were trying to kill PW1 prosecutrix by catching hold of her neck and pressing it, because the intervening time when the prosecutrix made the call and when police reach was about 16 minutes. It further cast doubt on the case of the prosecution. If the prosecutrix struggled for 16 minutes with the appellants, why she did not get even one scratch as there was no injury on her person. It is though settled law that testimony of the victim, is not always required to be corroborated by medical evidence in terms of injury, in the cases of sexual assault. But each case depends on its own facts. If a grown up lady is struggling with two persons to save her life and these two persons are bent upon to kill her by pressing her neck under such circumstances, absence of even slightest injury on the person of the prosecutrix further doubts the veracity of PW1 prosecutrix. 44. Learned counsel for the appellant Mukesh Garg has referred to the statement of PW1 prosecutrix, recorded on 03.01.2015, when she has stated that she does not recognize the appellant Mukesh Garg and she saw him for the first time at Kotwali, Haridwar after the incident. According to learned counsel for the appellant, it falsifies the prosecution case. This argument was also advanced before the trial court and learned court below in paragraph 29 of the judgment has dealt with it and held that presence of appellant Mukesh Garg cannot be denied at the place of occurrence because PW1 prosecutrix was subjected to a very lengthy cross-examination on various dates and prior to it, she has categorically stated about the presence of appellant Mukesh Garg at the scene of occurrence. 45. It is true that PW1 prosecutrix have been subjected to detailed cross-examination and it is also true that the natural witness may vary in his statement. One of the purposes of the cross-examination is definitely to test the truthfulness of the witness. Admittedly, PW1 prosecutrix did not know the appellant Mukesh Garg before 15.07.2013. 45. It is true that PW1 prosecutrix have been subjected to detailed cross-examination and it is also true that the natural witness may vary in his statement. One of the purposes of the cross-examination is definitely to test the truthfulness of the witness. Admittedly, PW1 prosecutrix did not know the appellant Mukesh Garg before 15.07.2013. According to her, when she reached bus stop at Haridwar, she was introduced to a person as Mukesh Garg, an officer in the income tax department and then she has stated about what had happened to her. But it is true that on 03.01.2015 in her cross-examination PW1 prosecutrix has categorically stated that for the first time, she saw appellant Mukesh Garg in Kotwali Haridwar when after the incident she was taken to the Police Station. She has further categorically stated that she named appellant Mukesh Garg on the basis of information, which she received from someone in the Sukhdham Bhawan. This statement cannot be said to be minor variation of a natural truthful witness. It creates doubt about the complicity of appellant Mukesh Garg in the incident and further it doubts the truthfulness of PW1 prosecutrix. 46. PW1 Prosecutrix in her statement under Section 164 of the Code also stated that the appellant Gulab Singh @ Kunal has used condom to have sex with her, whereas appellant Mukesh Garg had sex with her without condom. She has stated in her statement under Section 164 of the Code that she got the used condom recovered by police, which the appellant Gulab Singh @ Kunal wanted to flush out. All the same, no condom was recovered. 47. In the instant case, it is alleged that two persons repeatedly raped the prosecutrix for about two hours by overpowering her. According to the prosecution, the undergarments of appellants and the prosecutrix and the bed-sheet were recovered and sent for forensic examination, a report which is proved by PW10 Dr. Manoj Kumar Agarwal. According to it, semen was detected on the underwears of the appellants but it was not detected on the undergarments of the prosecutrix or on the bed-sheet. As discussed hereinbefore, statement of PW1 prosecutrix does not inspire confidence. Therefore, merely because semen was detected on the undergarments of the appellants, it cannot be said that the appellants have committed the offence of rape. 48. There is another aspect of the matter. As discussed hereinbefore, statement of PW1 prosecutrix does not inspire confidence. Therefore, merely because semen was detected on the undergarments of the appellants, it cannot be said that the appellants have committed the offence of rape. 48. There is another aspect of the matter. According to PW1 prosecutrix, the incident occurred between 12.30 p.m. to 2.30 p.m. for almost two hours. As stated in the FIR and in her statement under Section 164 of the Cod, she has not stated that her mouth was gagged. Why she did not shout? Map of the scene and occurrence is on record, it shows that one wall of reception and of room no. 11 of Sukhdham Bhawan is common and bathroom is adjacent to the reception. If the mouth of PW1 prosecutrix was not gagged, why she did not cry. In her statement before the court, PW1 prosecutrix says that she tried to shout but her mouth was gagged and she was also threatened. It may also happen in some cases when the victim may not get an opportunity to shout or may be put under such threat perception, which may compel the victim to remain unmoved. But the instant case is definitely not such a case. In the FIR, and in her statement under Section 164 of the Code, PW1 prosecutrix has categorically stated as to what had happened inside the room. It is not one act of sexual intercourse, which she alleges instead according to her, firstly appellant Gulab Singh @ Kunal had raped her then he had oral sex and thereafter, appellant Mukesh Garg raped her and then according to PW1 prosecutrix, appellant Gulab Singh @ Kunal had twice sexual intercourse with her. In all, there were four counts of sexual intercourse and one of oral sex. Were the appellants holding PW1 prosecutrix throughout two hours, when they were having sexual intercourse with her? According to PW1 prosecutrix, she wanted to run away but she was caught hold by the appellants. For the first time, in the court, she says that she wanted to shout but her mouth was gagged. It means she was resisting the act. This statement of her cannot be accepted and is not reliable. 49. In view of the foregoing discussion, this Court is of the view that the evidence of PW1 prosecutrix is self contradictory, inconsistent, wavering and is not reliable. It means she was resisting the act. This statement of her cannot be accepted and is not reliable. 49. In view of the foregoing discussion, this Court is of the view that the evidence of PW1 prosecutrix is self contradictory, inconsistent, wavering and is not reliable. It cannot be a basis to convict the appellants. Accordingly, this Court is of the view that prosecution has not been able to prove its case beyond reasonable doubt and learned court below has committed an error in convicting and sentencing the appellants. Therefore, impugned judgment and order dated 28.02.2017 deserves to be set aside. 50. Accordingly, both the appeals are allowed. Impugned judgment and order dated 28.02.2017, passed by learned Fast Track Court/Additional Sessions Judge/Special Judge, POCSO, Haridwar in Sessions Trial No. 335 of 2013, State Vs. Gulab Singh@Kunal and Mukesh Kumar is set aside. The appellants are acquitted of the charges. Appellants are in jail. Let they be released forthwith, if not required in connection with any other case. 51. Let a copy of this judgment along with Lower Court Record be transmitted to the Court below for compliance.