JUDGMENT : 1. The present appeal under Section 374 (2) Cr.P.C. has been filed by the appellants-Jagjeet Singh and Niyamat Ali against the judgement and order dated 15.01.1983 passed by the III Additional Sessions Judge, Fatehpur in Sessions Trial No. 311 of 1981 (State of U.P. vs. Jagjeet Singh and another) by which the accused-appellants were convicted and sentenced under Section 376 I.P.C. to 06 years rigorous imprisonment. 2. During the pendency of the present appeal the appellant no.1-Jagjeet Singh died on 19.03.2015. His appeal stands abated vide order dated 16.01.2020 passed by a co-ordinate Bench of this Court. The present appeal thus survives only with regards to the appellant no.2-Niyamat Ali. 3. The name of the prosecutrix is not being disclosed and mentioned in the present judgement in the light of directions of the Apex Court in various judgements and as per Section 228-A of the Indian Penal Code. She is, thus, referred to as victim ‘X’ in the judgement. 4. The prosecution case as per the first information report lodged on 14.02.1979 at about 16:00 hours by Jhoori with regards to an incident which is said to have taken place on 12.02.1979 at about 3 pm in the field of victim against Jagjeet Singh and Niyamat Ali is that when he returned home on 14.02.1979 he was told that victim ‘X’/his daughter-in-law had gone along with his daughter Kumari Shanti aged about 7 years to the field for binding fodder. She was over-powered by the accused persons at about 3 pm. Both the accused persons committed rape on her by pressing her and gagging her mouth. Later on, on hearing her shrieks Kallu and Ganeshi along with other persons came to the place of incident but in the meanwhile, the accused persons ran away from there. She then returned to her house with Kumari Shanti and told her mother-in-law of the entire incident and kept waiting for her husband and on his return disclosed it to him and then he informed the police. The present first information report was thus lodged as Case Crime No. 38 of 1979, under Section 376 I.P.C., Police Station-Khaga, District-Fatehpur on the oral information of the first informant Jhoori. The same was marked as Exb: Ka-1 to the records. 5. Corresponding GD entry was prepared regarding the oral information given by the informant. The same was Exb: Ka-2 to the records. 6. The same was marked as Exb: Ka-1 to the records. 5. Corresponding GD entry was prepared regarding the oral information given by the informant. The same was Exb: Ka-2 to the records. 6. The victim ‘X’ was medically examined on 15.02.1979 by Dr. Rani Bhatia at 10 am while being brought by Constable of the police station. On general examination the doctor noted as follows:- “A young lady of normal built. Length 4 feet 10 inches. Teeth: 14/14.” On external examination the doctor found and noted as follows: “No external injury anywhere on the body. Breasts well-developed, axillary and pubic hairs both well developed. Per Abd exam- Uterus 20 weeks pregnancy Per Vaginal exam- old tears of hymen seen. 2 fingers can be introduced easily, formix- clear, cervix- blue and congested. Ut- 20 wks pregnancy.” Vaginal smear was taken and sent for pathological examination to District Hospital Fatehpur. She was advised X-Ray of wrist and elbow joint for confirmation of age. The vaginal smear report was received which stated of no spermatozoa in it. It was stated that supplementary report will be given later on as X-Ray report is not received. The genuineness of the said document was not disputed by the defence as per its note dated 01.01.1983 on it. The said report is Exb: Ka -5 to the records. 7. The site plan of the place of occurrence was prepared which is Exb: Ka -3 to the records. 8. The investigation concluded and a charge-sheet No. 59 dated 23.04.1979 was submitted against both the accused persons under Section 376 I.P.C. The same is Exb: Ka -4 to the records. 9. Vide order dated 23.11.1982 passed by the III Additional Sessions Judge, Fatehpur charge under Section 376 I.P.C. was framed against the accused-appellant who pleaded not guilty and claimed to be tried. 10. The accused persons were thus convicted as stated above against which the present appeal has been filed. 11. The prosecution in order to prove the guilt of the accused produced and examined Jhoori the first informant and father-in-law of victim ‘X’ as P.W.-1, victim ‘X’ as P.W.-2, Ganeshi as an independent witness as P.W.-3, Head Constable Brahma Deo Singh as P.W.-4, and Sub-Inspector Kamta Prasad Tripathi as P.W.-5. 12. The accused in his statement under Section 313 Cr.P.C. denied the prosecution case and stated of being falsely implicated. No defence evidence was led. 13. 12. The accused in his statement under Section 313 Cr.P.C. denied the prosecution case and stated of being falsely implicated. No defence evidence was led. 13. Jhoori P.W.-1 is the first informant and father-in-law of victim ‘X’. He states that victim ‘X’ is his daughter-in-law. His son is a labour working in Kanpur and comes to village often. The incident is about 04 years back. He had gone to Gopalpur to his relatives. Victim ‘X’ had gone to the field to bring fodder. The field belongs to Nazir which was taken by him for work on co-sharing basis. Victim ‘X’ had gone at about 2 pm. When she had gone to bring fodder both the accused persons caught her and committed rape on her. She raised shout and shrieks on which witnesses arrived and then the accused persons ran away. She came back and told her mother-in-law of the incident. On the next day when he came from the house of his relatives then he was told about the incident by his wife and his daughter-in-law. His daughter-in-law had told him that witnesses Kallu and Ganeshi had exhorted on which the accused ran away. At the time of the incident his younger daughter Shanti had also gone to the fields with his daughter-in-law. He had then gone to lodge a report on the same day. It was an oral report. Whatever he told was written after which he affixed his thumb impression. He identifies the said report and his thumb impression on it which was marked as Exb: Ka-1 to the records. He was given a copy of the said report. His daughter-in-law was sent for medical examination on the next day with a police constable after which she was medically examined. In his cross-examination, he states that he had returned from outside on the third day. His wife was in the house. His son was not there. He was told about the incident by his wife and his daughter-in-law. He has his nephew in the family. His nephew works outside. He only lives in the house. Report could have only been lodged when he had come home. In his absence no report could have been lodged. His wife is illiterate and cannot go to police station for lodging of a report. 14. He has his nephew in the family. His nephew works outside. He only lives in the house. Report could have only been lodged when he had come home. In his absence no report could have been lodged. His wife is illiterate and cannot go to police station for lodging of a report. 14. P.W.-2 Victim ‘X’ states that around 04 years on the day of incident she had gone to the field to bring fodder. The field was of Nazir which was taken on co-sharing basis. Her nand Kumari Shanti aged about 7-8 years had also gone with her. After cutting fodder she was collecting it and then both the accused persons came there, pressed her, and then Jagjeet committed rape on her after which Niyamat Ali committed rape on her. Her mouth was closed with a dhoti due to which she could not shout. Her nand Shanti ran back to the house to inform the family members after which Niyamat Ali gave her money and told her to sit. On her shout Kallu and one more witness came there after which the accused ran away. She then went back home and told about the incident to her mother-in-law. Her father-in-law was not at home. He came on the third day after which he went to the police station to lodge a report. She then went to Fatehpur for her medical examination which was done there. She did not know whether Kallu and others would give evidence or not. Her blouse and dhoti was torn and were stained but she had taken a bath. She did not give her blouse at the police station as the police did not ask for it. In her cross-examination, she states that at the time of incident her mother-in-law was three fields away from her. Her nand Shanti was with her where she was cutting grass. Her mother-in-law did not see the incident. She had come to the place of occurrence later on hearing her shout. Kallu was the first person to reach the place on hearing her shrieks along with one more person. Kallu was working in his field. As soon as Kallu came the accused persons ran away. Kallu did not see the accused persons committing rape on her as he had come on hearing her shout. No one had gone to her house and told her mother-in-law to lodge a report. Kallu was working in his field. As soon as Kallu came the accused persons ran away. Kallu did not see the accused persons committing rape on her as he had come on hearing her shout. No one had gone to her house and told her mother-in-law to lodge a report. No one went to lodge a report. When her father-in-law came back then he was told of the incident after which he lodged the report. Her dhoti and blouse was not taken by the police. She was interrogated by the Investigating Officer. She was not asked about her dhoti and blouse. She was not told of wearing the same and go for medical examination. She kept on wearing the same for 4-5 days. At first Jagjeet came and then Niyamat Ali came. She saw the accused persons. They had pressed her. They did not talk to her. They had closed her eyes and mouth with clothes. She could see as to who committed rape on her first. When Jagjeet was committing rape on her Niyamat Ali had pressed her so that she may not shout and may not run away. The incident took about one hour. Each person pressed her for about ½ an hour. Neither she nor her family members have any enmity with the accused. It is incorrect to state that they destroy the fields of the accused and due to the saying of the villagers false case has been lodged. As soon as accused persons left her she started shouting as before it they had pressed her. She was raped by the side of medh. It was open place. She knows the accused since the last two years as they had their field near her field, she and her family members use to cross their field. She never talked to the accused before the incident. She is aged about 18 years. She does not know when she got married. She got married around 5-6 years before. Her children have died. She was having a pregnancy of about five months. She states that it is incorrect to say that she is aged about 34-35 years of age. 15. P.W.-3 Ganeshi was produced as an independent eye witness of the incident. He denies being the eye-witness of the incident. He was declared hostile as he did not support the prosecution case. 16. She was having a pregnancy of about five months. She states that it is incorrect to say that she is aged about 34-35 years of age. 15. P.W.-3 Ganeshi was produced as an independent eye witness of the incident. He denies being the eye-witness of the incident. He was declared hostile as he did not support the prosecution case. 16. P.W.-4 Brahm Deo Singh is the Head Constable. He transcribed the chik first information report and proved it. He also proves the corresponding GD entry. 17. P.W.-5 Kamta Prasad Tripathi, S.I. is the Investigating Officer of the matter. He took up the investigation, recorded the statement of the witnesses, copied the medical examination report, prepared the site plan and then completed it by filing a charge-sheet against the accused persons. 18. The accused persons have thus been convicted as stated above and the present appeal has thus been filed against the same. 19. Heard Sri Shyam Sunder Mishra, learned counsel for the surviving appellant-Niyamat Ali, Sri B.B. Upadhyay, learned counsel for the State and perused the records. 20. Learned counsel for the appellant-Niyamat Ali argued that the appellant has been falsely implicated in the present case. It is argued that the victim ‘X’ is a major lady as would appear from the fact that she was married and had two children who had died and was now carrying a pregnancy of five months. It is argued that there was enmity between the parties as field of the accused persons was adjacent to the field of the informant and they had caused damage to the crops of the accused persons. It is argued that the medical evidence does not corroborate with the prosecution case as the doctor did not find any injury either externally or internally on victim ‘X’. It is further argued that there is no supplementary medical examination report with regards to ascertainment of the age of victim ‘X’ and as such it can easily be deciphered that she was an adult woman. It is argued that Kumari Shanti nand of victim ‘X’ who had accompanied her to the field has not been examined by the prosecution for the reasons best known to them. Even she was not interrogated by the Investigating Officer. It is argued that Kumari Shanti nand of victim ‘X’ who had accompanied her to the field has not been examined by the prosecution for the reasons best known to them. Even she was not interrogated by the Investigating Officer. It is argued that the prosecution case is of two persons namely Kallu and Ganeshi being the persons reaching the place of occurrence at the very first moment on hearing shrieks of victim ‘X’. Even Kallu has not been examined in the trial. He was although interrogated by the Investigating Officer during investigation but for the reasons best known to the prosecution, he has been withheld in the trial and has not been produced. In so far as the other witness Ganeshi is concerned although he was produced as P.W.-3 before the trial court but he did not support the prosecution story and was declared hostile. It is argued that first information report has been lodged with an unexplained delay of 02 days. The present incident is said to have taken place on 12.02.1979 whereas first information report has been lodged on 14.02.1979. It is argued that although the first informant states of his wife being an illiterate and as such not being in a position to go and lodge a first information report but even the first informant as would appear from the records had put his thumb impression while giving oral report to the police which would also go to show that he was also illiterate. It is argued that delay in lodging of the first information report is unexplained and the prosecution story gets suspicious because of the same. Learned counsel has argued that the accused-appellant Niyamat Ali at the time of his recording of statement under Section 313 Cr.P.C. dated 11.01.1983 had stated of his being about 40 years of age on that date and looking to the said fact as of now he is aged about 80 years. It is argued that if the present appeal does not stand of chance of success, the same be allowed in part and appropriate fine be awarded to be paid by the accused-appellant to victim ‘X’ which would serve the ends of justice. 21. Per contra, learned counsel for the State argued that there is a clear denial of any previous enmity by victim ‘X’ and as such there is no enmity between the parties. 21. Per contra, learned counsel for the State argued that there is a clear denial of any previous enmity by victim ‘X’ and as such there is no enmity between the parties. It is argued that the prosecution story gets corroborated by the untarnished and unblemished testimony of P.W.-2 who specifically states of the accused persons committing rape on her. It is argued that victim ‘X’ is sufficient to prove the prosecution case and on the basis of her statement alone conviction can very well be recorded. Her statement corroborates with the prosecution story. She was pregnant at the time of the incident as is apparent from her statement and also from the medical examination report. It is argued that in so far as delay in lodging of the first information report is concerned, the same has been reasonably explained by the first informant who has stated that his wife is illiterate and was not in a condition to go to the police station and lodge a report. It is argued that the prosecution has proved its case beyond reasonable doubts and the appeal be dismissed. 22. After having heard the learned counsel for the parties and perusing the record, it is evident that the incident in the present case is said to have taken place on 12.02.1979. The first information report was lodged on 14.02.1979 which is after about 02 days of the incident. Kumari Shanti the daughter of the first informant Jhoori and nand of victim ‘X’ is stated to be an eye-witness of the incident. She was neither interrogated during investigation nor produced as a witness in the trial for the reasons best known to the prosecution. She has been withheld by it. Kallu and Ganeshi are said to be the two persons who reached the place of occurrence on hearing shrieks and shout of victim ‘X’ immediately and on their exhortation the accused persons are said to have run away. Although Kallu was interrogated during investigation but he was also withheld by the prosecution and was not produced in court for reasons again best known to the prosecution. In so far as Ganeshi is concerned although he was produced as P.W.-3 before the trial court as an independent eye-witness of the incident but he was declared hostile. Although Kallu was interrogated during investigation but he was also withheld by the prosecution and was not produced in court for reasons again best known to the prosecution. In so far as Ganeshi is concerned although he was produced as P.W.-3 before the trial court as an independent eye-witness of the incident but he was declared hostile. The said facts thus leave us with the only testimony of victim ‘X’ in so far as the incident is concerned. The withholding of Kumari Shanti during investigation and in the court / trial, withholding of Kallu in the court / trial and the sole independent witness Ganeshi P.W.-3 not supporting the prosecution case and being declared hostile goes to show that the said version of the prosecution with regards to the persons being ocular witnesses is false. Although the first informant has tried to explain the delay of 02 days in lodging of the first information report by stating that his wife was illiterate and cannot lodge a report but even his status was not better as the first information report was an oral report and he had also put his thumb impression on it which would also go to show that probably he was an illiterate person. The mother-in-law of victim ‘X’ and the victim ‘X’ remaining silent for 02 days and waiting for the first informant to return for setting law into motion is an act which creates doubt on the prosecution story coupled with the fact that Kumari Shanti companion of victim ‘X’ not being interrogated during investigation and also not being produced in the trial, independent witness Kallu also not being produced in the trial even though he was interrogated during investigation and Ganeshi another independent witness and companion of Kallu who had reached the place of occurrence as the first person with Kallu who was produced as P.W.-3 turning hostile before the trial court creates a dent in the prosecution case. 23. With the above-mentioned infirmities and even the medical examination report of victim ‘X’ not corroborating with the prosecution case as the doctor did not find any injury externally & internally on her body, it is a fit case for giving benefit of doubt to the accused-appellant Niyamat Ali. 24. This Court thus extends benefit of doubt to the accused-appellant-Niyamat Ali and acquits him. 24. This Court thus extends benefit of doubt to the accused-appellant-Niyamat Ali and acquits him. The judgement and order dated 15.01.1983 passed by the III Additional Sessions Judge, Fatehpur is hereby set-aside. The appellant-accused Niyamat Ali is on bail. The bail bonds are cancelled and sureties discharged. 25. The appeal is allowed by giving benefit of doubt to the appellant. 26. A copy of this judgement along with the trial court records be sent to the trial court forthwith for communication and necessary action.