JUDGMENT: 1. The present appeal arises out of the impugned judgment of conviction and order of sentence dated 16.09.2004 passed by Additional Sessions Judge (FTC), Ramanujganj, Sarguja (C.G.) in Sessions Trial No.398 of 2003 whereby, the learned Additional Sessions Judge convicted the appellants and sentenced them as under :- Conviction Sentence Under Section 450 of Indian Penal Code, 1860 R.I. for 5 years and fine of Rs.3,000/-, in default of payment of fine amount, additional R.I. for 1 year. Under Section 376(2)(g) of Indian Penal Code, 1860 R.I. for 10 years and fine of Rs.5,000/-, in default of payment of fine amount, additional R.I. for 1 year. Both the sentences were directed to run concurrently. 2. The prosecution story, in brief, is that, on the date of incident i.e. 05.04.2003, at about 7:00 AM, prosecutrix (PW-1) was residing at village Santoshi Nagar. She was alone at her house and was making food. At that relevant time, appellants entered into the house of prosecutrix, asked for matchbox and enquired about her husband's whereabouts. The prosecutrix gave them a matchbox. Thereafter, appellants shut the door of her house and caught hold of her hand, closed her mouth with a piece of cloth, dragged her and committed rape turn by turn upon her. After committing rape, accused Amal Vishvas opened her face and told that she will not narrate the incident to anyone and ran away from her house. Upon shouting of prosecutrix, her sisters-in-law came there, at that time, accused Amal Vishvas trying to ran away, but they caught hold of accused Amal Vishvas and locked him in a room. Thereafter, First Information Report was lodged against the accused persons bearing Crime No.32 of 2003 vide Ex.P/1. Clothes of prosecutrix was seized. The prosecutrix was sent for medical examination. Spot map was prepared. Statements of witnesses were recorded and thereafter, accused persons were arrested. The accused persons were also sent for medical examination. After completion of investigation, chargesheet was filed. 3. So as to hold the accused/appellants guilty, the prosecution has examined as many as 16 witnesses. The statement of the accused/appellants was also recorded under Section 313 of the Cr.P.C., in which, they denied the circumstances appearing against them and pleaded innocence and false implication in the case. 4. After completion of investigation, chargesheet was filed. 3. So as to hold the accused/appellants guilty, the prosecution has examined as many as 16 witnesses. The statement of the accused/appellants was also recorded under Section 313 of the Cr.P.C., in which, they denied the circumstances appearing against them and pleaded innocence and false implication in the case. 4. After hearing the parties, vide impugned judgment of conviction and order of sentence dated 16.09.2004, learned Additional Sessions Judge, has convicted and sentenced the accused/appellants as mentioned in para-1 of this judgment. Hence, the present appeal. 5. Learned counsel for the appellants submits that conviction and sentence imposed upon the appellants are based on presumptions, surmises and conjectures, as such, unwarranted and irrelevant to the circumstances of the case. He further submits that prosecution could not establish the occurrence of the alleged incident. It is contended that finding of the trial Court is contrary to the settled law and evolution of evidence relied upon by learned trial Court do not establish the guilt, as such, the prosecution witnesses have not supported the case of prosecution. It is further argued that trial Court has failed to appreciate the medical evidence available on record in its proper perspective. It is argued that trial Court has failed to consider the fact of unexplained delay of 11 hours in lodging the FIR, which raises a serious doubt regarding the authenticity of the case. It is lastly argued that the impugned judgment passed by the learned trial Court is illegal and arbitrary, which deserves to be set aside. He placed reliance upon the judgment rendered by Hon’ble Supreme Court in cases of Vadivelu Thevar v. The State of Madras reported in AIR 1957 SC 614 , Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 , Baldev Singh v. State of Punjab reported in (1990) 4 SCC 692 , Bijoy Singh and another v. State of Bihar reported in (2002) 9 SCC 147 , Ram Swaroop and others v. State of Rajasthan reported in (2004) 13 SCC 134 and Paulmeli and another v. State of Tamil Nadu through Inspector of Police reported in (2014) 13 SCC 90 . 6. Per contra, learned counsel appearing for the State, supporting the impugned judgment, opposed the arguments advanced on behalf of the appellant. 7. 6. Per contra, learned counsel appearing for the State, supporting the impugned judgment, opposed the arguments advanced on behalf of the appellant. 7. Heard learned counsel for the parties and perused the material on record including the impugned judgment. 8. In the instant case, prosecutrix was a married woman. Dr. Sunita Sharma (PW-6) had examined the prosecutrix and gave its report vide Ex.P/11, which is as follows : “Patient is of normal height and she was mentally fit. 5 small linear bruise present over upper outer right breast, one bruise about 4-5 cm in length present at same site, which is reddish brownish in colour. 7 abrasions of 3-4 cm present over upper inner left breast. One abrasion present about 3-4 cm over right inner side of thigh.” 9. Dr. Sunita Sharma (PW-6) has stated that hymen of prosecutrix was ruptured. There were no injury marks on private parts. Two fingers were easily entered. Blood was coming from uterus due to menstruation. No definite opinion has been given regarding instant sexual intercourse. In cross-examination, she accepted that scratches found on breast could have come from fingernails of a breast-feeder. There is notable and important fact that according to FIR (Ex.P/1) written by prosecutrix, she has two children, who are aged about 4 years and 2 years, respectively. In such a situation, it can be said that 2 year old child is a milk-drinking child. 10. In the case at hand, slide was prepared of vaginal discharge of prosecutrix as well as her undergarments were seized, but, in absence of any chemical test report being produced and prosecutrix being a married woman, no definite conclusion can be given that appellants had committed sexual intercourse with her. 11. As per case of the prosecution, relatives of prosecutrix, i.e., Bina Sarkar (PW-3) sister-in-law, Ashok (PW-5) brother-in-law, Manju Devi (PW-7) neighbour and Shanti Biswas (PW-8) have been declared hostile as they denied their police statement regarding the incident and have not supported the case of prosecution. 12. Dipali (PW-4) sister-in-law of prosecutrix has stated in his evidence that appellants used to harass the prosecutrix. On the date of alleged incident, at about 7.00 A.M., she went to house of prosecutrix after hearing noise and saw that prosecutrix was assaulting the appellant Amal Vishvas. On enquiry, prosecutrix stated that appellant Amal Vishvas was pulling her by holding her hand and talked filthy things. On the date of alleged incident, at about 7.00 A.M., she went to house of prosecutrix after hearing noise and saw that prosecutrix was assaulting the appellant Amal Vishvas. On enquiry, prosecutrix stated that appellant Amal Vishvas was pulling her by holding her hand and talked filthy things. Thus, she may not have supported the entire case of the prosecution, but supported the fact that appellant Amal Biswas was present near the house of prosecutrix and at that time, prosecutrix had stated that appellant Amal Vishvas was pulling her by holding her hand and talked filthy things. At this juncture, this witness was not challenged in cross-examination. Thus, she remained uncontroverted in her statement. 13. Devvrat (PW-2), husband of prosecutrix has stated in the evidence that his wife (prosecutrix) was harassed by appellants. When a leading question put by declaring the witness hostile, he stated that Ashok (PW-5) had come and told that prosecutrix was being harassed by two boys and mentioned the names of appellants. Then, he came home where prosecutrix tearfully told him the names of appellants and stated that appellants had entered the house on the pretext of burning bidi. He has not corroborated the rest of prosecution's case and rebutted his police statement. Hence, same fact has come out in his evidence that appellants had harassed his wife, due to which, she was crying. 14. Patwari Gaurishankar Mishra (PW-14) has stated that after interrogating the witnesses on 10.06.2003, he prepared spot map vide Ex.P/6. In cross-examination, he admitted that he has not mentioned the distance of houses in Ex.P/6. He also admitted that place of incident has been mentioned in red ink and it is not clear whether incident took place inside the house or outside the house in the courtyard. 15. Sub Inspector Sapan Chaudhary (PW-11) has stated that he also prepared spot map vide Ex.P/3, which was proved by prosecution that incident was happened in a room inside the house. 16. Though some witnesses were declared hostile and some witnesses were partially supported the case of the prosecution, evidence of prosecutrix assumes significance. Even medical evidence does not definitely confirm that appellants had forcibly committed sexual intercourse with prosecutrix. At this stage, evidence of prosecutrix has to be examined in detail. The statement of prosecutrix having many ups and downs. There are contradiction in her examination-in-chief and cross-examination. Even medical evidence does not definitely confirm that appellants had forcibly committed sexual intercourse with prosecutrix. At this stage, evidence of prosecutrix has to be examined in detail. The statement of prosecutrix having many ups and downs. There are contradiction in her examination-in-chief and cross-examination. In the above situation, when statement of prosecutrix is important according to nature of crime, then what should be the position regarding admissibility and credibility of her evidence ? It would be appropriate and necessary to take the said fact into consideration. As such, evidence of prosecutrix can be properly reviewed and there is no need to repeat it. 17. In case of Sharad Birdhichand Sarda (supra), it is clear that evidence, on which, accused has not been examined under Section 313 of Cr.P.C., the same cannot be taken into consideration. Hon’ble Supreme Court has expressed in para- 145 as under : “145. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decision of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code, 1973 have to be completely excluded from consideration.” 18. Hon’ble Supreme Court in case of Vadivelu Thevar (supra) has held that oral testimony/evidence of witnesses may be classified into three categories and observed thus : “11. ….. (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable. 12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution.” 19. Further, Hon’ble Supreme Court in case of Baldev Singh (supra) has held that statement recorded under Section 161 of Cr.P.C. is not original evidence and observed thus : “5. ….Needless to stress that the statement recorded under Section 161 of the Code of Criminal Procedure, shall not be used for any purpose except to contradict a witness in the manner prescribed in the proviso to Section 162(1) and that the first information report is not a substantial piece of evidence..” 20. Hon’ble Supreme Court in cases of Bijoy Singh (supra) and Ram Swaroop (supra), it has been held that First Information Report is not a substantive piece of evidence and can only be used to corroborate the statement of the maker. Under Section 161 of the Evidence Act or to contradict him under Section 145 of that Act. 21. Hon’ble Supreme Court in cases of Bijoy Singh (supra) and Ram Swaroop (supra), it has been held that First Information Report is not a substantive piece of evidence and can only be used to corroborate the statement of the maker. Under Section 161 of the Evidence Act or to contradict him under Section 145 of that Act. 21. Hon’ble Supreme Court in case of Paulmeli (supra), it has been held that if a witness is hostile then his statement cannot be completely denied. In fact, the relevant part can also be accepted. 22. In case of Krishan Kumar Malik v. State of Haryana reported in (2011) 7 SCC 130 , Hon’ble Supreme Court has held that in case of gangrape, if there are contradictions in the statement of prosecutrix, which is not supported by any material including medical evidence, then, it would not be safe for conviction. 23. If the evidence of prosecutrix (PW-1) is examined in the light of above judicial precedents, it is evident that she stated in her examination-in-chief that appellants used to harass her when she used to go to fill water from well. On the date of incident, at about 7.00 A.M., when she was cooking food at her home and her husband went out to cut wheat, appellants came there and stated her that they would do bad things upon her. They wanted to outrage her modesty and pulled her hands. Then, she was trying to run away by free her hands. 24. The prosecutrix (PW-1) has further stated that appellants had not committed sexual intercourse with her, only hold her hand and talking about insulting her. When the First Information Report (Ex.P/1) was read out and explained to her, she stated that she had not written such report. She denied putting her signature on First Information Report (Ex.P/1). Her signature was made in Ex.P/2 before the Court and presiding officer has observed that the signature made by prosecutrix in Ex.P/2 and First Information Report (Ex.P/1) is the same. She has also stated that father of appellants had threatened her not to tell the truth in the Court. She has not clarified as to which father of appellant had given such threat to her. It is noteworthy that fathers of both appellants are different persons. Thus, statement of prosecutrix on this point is not clear, as to which father of appellant threatened her. 25. She has not clarified as to which father of appellant had given such threat to her. It is noteworthy that fathers of both appellants are different persons. Thus, statement of prosecutrix on this point is not clear, as to which father of appellant threatened her. 25. Upon further examination, prosecutrix (PW-1) again take back from her statement and supported the case of prosecution by stating that appellants had closed her mouth by putting a towel and committed sexual intercourse turn by turn. When she raised noise, her Devarani Bina Sarkar (PW-3) (declared hostile) and Dipali (PW-4) came and they were also caught hold by appellants. Thereafter, appellants fled away from there. She along with her husband went to Police Station and lodged the report. It is noteworthy that Bina Sarkar (PW-3) has not confirmed any such incident. Dipali (PW-4) has also not confirmed the incident of rape, rather she has only stated that when she reached to the house of prosecutrix, she was assaulting the appellant Amal Biswas and told her that he was pulling her by hand and talking bad things. 26. There was contradiction in her examination-in-chief to the effect that whether the incident of rape actually happened or not ? 27. Looking to the cross-examination of prosecutrix, she admitted that appellant Amal Vishvas was a friend of her husband and he used to visit her house. She was familiar with appellants as they belong to same village. She further admitted that a business of selling of liquor was done in her family, i.e., relatives of her husband and stated that she has nothing to do with business of selling liquor. She has denied the suggestion that appellant Amal Biswas was being invited in the house by her or her brother-inlaw. 28. In cross-examination, prosecutrix has denied the suggestion that she had assaulted appellant Amal Biswas after calling her to the house, but herself stated that quarrel took place after the incident. Dipali (PW-4) has stated that when she went to the house of prosecutrix after hearing noise, she saw that prosecutrix was assaulting Amal Biswas and told her that appellant was pulling her by holding her hand. As such, she corroborated the version of prosecutrix that she had assaulted appellant Amal Biswas only after the incident of molestation. 29. Dipali (PW-4) has stated that when she went to the house of prosecutrix after hearing noise, she saw that prosecutrix was assaulting Amal Biswas and told her that appellant was pulling her by holding her hand. As such, she corroborated the version of prosecutrix that she had assaulted appellant Amal Biswas only after the incident of molestation. 29. Prosecutrix has further stated in her cross-examination that appellants used to harass her when she used to go to draw water from well and she lodged the report about the same. She stated that her family members had told her to lodge report to the Police Station, then she went to Police Station for lodging of report. She stated that she does not know what Police has wrote and when they asked for signature, she signed the same. She admitted that on the date of lodging of report, appellants did not come to her house and Policemen took her signature on 4-5 plain papers. She has stated on the suggestion of defence that appellants used to harass her, then she lodged a report and no incident had occurred with her on the date of lodging of report. 30. The prosecutrix was again summoned for cross-examination, then she stated that she neither made any report regarding giving threats by father of appellants nor she had given any written application before the court. She admitted that appellants did not give any threat to her regarding giving statement before the Court. The father of appellants neither come there nor meet her on the day when she made statement before the Court. She further stated that on the date of recording of Court statement, she was not feeling well, having headache and dizziness. 31. After thinking for a long time on the suggestion of defence, prosecutrix replied that appellants neither entered in her house to commit the incident nor they committed sexual intercourse with her. She further stated that she does not know how to read Hindi, but signed in Hindi. She cannot read the things written in First Information Report and Police did not even read it to her. She further stated on the suggestion of defence that in First Information Report, she had not recorded that incident of rape happened in her house, but only molestation was recorded. She cannot read the things written in First Information Report and Police did not even read it to her. She further stated on the suggestion of defence that in First Information Report, she had not recorded that incident of rape happened in her house, but only molestation was recorded. She lastly stated on the suggestion of defence that appellants did not enter the house and committed sexual intercourse, but rather molested her outside the house. 32. From perusal of evidence of Devvrat (PW-2) husband of prosecutrix and Dipali (PW-4) sister-in-law as well as First Information Report (Ex.P/1), there is no doubt that appellants had come to the house of prosecutrix on the alleged date of incident. According to the case laws relied upon by the learned counsel for the appellants, even though some ups and downs were found in the statement of prosecutrix, but her statement cannot be denied completely. The fact has come up time and again that appellants used to harass by molesting her. At the time of occurrence, appellants were also seen by Dipali (PW/4) near her house. At that time, prosecutrix had raised noise and after arrival of her husband, she went to Police Station and lodged First Information Report vide Ex.P/1. This cannot be conclusively drawn on the basis of ups and downs in the statement of prosecutrix that appellants had committed house-trespass by entering inside her house. But on the basis of her statement, which was corroborated by Dipali (PW-4), Devvrat (PW-2) as well as First Information Report (Ex.P/1), it is clearly reflected that appellants have molested the prosecutrix and tried to outrage her modesty. As such, commission of offence of rape is not established. 33. For the aforementioned facts and circumstances of the case and in the light of above cited precedents, evidence of prosecutrix is found to be partly acceptable and credible, which is supported not only by First Information Report (Ex.P/1) but also by statements of her husband Devvrat (PW-2) and sister-in-law Dipali (PW-4). 34. In view of above discussions, It has been established that appellants had outraged the modesty of prosecutrix, used criminal force by holding her hand. Thus, offence of house trespass and rape is not proved. Rather, use of criminal force to dishonor is becoming established. Therefore, no interference is warranted on the conviction and sentence imposed by the trial Court. 35. In view of above discussions, It has been established that appellants had outraged the modesty of prosecutrix, used criminal force by holding her hand. Thus, offence of house trespass and rape is not proved. Rather, use of criminal force to dishonor is becoming established. Therefore, no interference is warranted on the conviction and sentence imposed by the trial Court. 35. In the result, the appeal is partly allowed. The judgment of conviction and order of sentence insofar as it relates to the offence punishable under Section 450 of the IPC is set-aside. The appellants are acquitted of the charges levelled against them for the offence punishable under Section 450 of the IPC. The conviction of the appellants under Section 376(2)(g) of the IPC is converted into Section 354/34 of the IPC. 36. Appellant- Amal Vishvas is stated to be in custody for about 1 year, 7 months & 28 days and appellant- Akshay Pal is stated to be in custody for about 1 year, 4 months & 4 days. The incident is of the year 2003. At that time, the offence of Section 354 of the IPC was punishable with a maximum imprisonment of two years. Nearly 20 years have passed away and appellants have been in custody for a long period. In such a situation, the period spent in custody by them is found to be an adequate punishment. 37. Therefore, appellants are sentenced to the period already undergone by them for the offence punishable under Section 354/34 of the IPC. The appellants have been stated to be on bail, they need not surrender before the trial Court. However, bail bonds of the appellants shall remain in force for a period of six months in view of the provisions contained in Section 437-A of Cr.P.C. If there is no need to appear in the superior Court, appellants will be deemed free from bail bonds. If the appellants have deposited the imposed fine amount, the same shall be returned to them. 38. Record of the trial Court be sent back along with a copy of this judgment forthwith for information and necessary compliance.