JUDGMENT : Pradeep Kumar Srivastava, J. Heard Mr. Pratiush Lala, learned counsel appearing for the appellants and Mr. Jitendra Pandey, learned A.P.P. and Mr. Tarun Kumar, learned A.P.P. appearing for the State. 2. Appellants of both the criminal appeals have challenged the judgment of conviction dated 25.09.2006 and order of sentence dated 27.09.2006 passed by learned Additional Sessions Judge-I, Sahibganj in Sessions Case No. 98 of 2004, whereby and whereunder, the appellant-Satin Khan has been held guilty for the offence under Section 354 of the I.P.C. and sentenced to undergo R.I. for a period of one year along with fine of Rs. 3,000/- with default stipulation, whereas the appellant-Sk. Majeshwar has been held guilty for the offence under Section 376 of the I.P.C. and sentenced to undergo R.I. of seven years along with fine of Rs. 5,000/- with default stipulation. FACTUAL MATRIX 3. The factual matrix giving rise to this appeal as per the fardbeyan of the prosecutrix recorded by S.I. Y.N. Upadhyay of Sahibganj (M) P.S. is that on 01.01.2004 at about 7:00 PM, the prosecutrix aged about 19 years has gone to discharge nature’s call towards north side of her house. When she untied her trouser and sit for discharging nature’s call, meanwhile, at about 7:45 PM, her co-villager Sk. Majeshwar and Satin Khan suddenly came there and all of a sudden Satin Khan gaged her mouth threatening to kill her, if she would raise alarm, then she followed with the accused persons holding the string of trouser towards the field of Sk. Ibraz, where Satin Khan left her, but Sk. Majeshwar caught hold of her hands lifted her in his arm and lay down in the field and forcibly committed rape on her about 5 minutes, thereafter, fled away towards his home. The prosecutrix has stated that her trouser has stained with blood just after occurrence, her father came towards the field, then she disclosed the above incident to him and returned to her home and also disclosed the above story to her mother Ajmira Bibi. Thereafter, she came to police station along with her father and on the basis of above fardbeyan, Sahibganj (M) P.S. Case No. 01 of 2004 dated 02.01.2004 was registered for the offence under Sections 376 /34 of the I.P.C. 4. Thereafter, she came to police station along with her father and on the basis of above fardbeyan, Sahibganj (M) P.S. Case No. 01 of 2004 dated 02.01.2004 was registered for the offence under Sections 376 /34 of the I.P.C. 4. After completion of investigation, charge sheet was also submitted against both the accused persons for the offence under Sections 376 /34 of the I.P.C. The case was committed to the court of Sessions, where Sessions Case No. 98 of 2004 was registered and charges under Sections 376 /34 of the I.P.C. was framed against both appellants, to which the accused persons pleaded not guilty and claimed to be tried. After conclusion of trial, the appellants were held guilty and sentenced as stated above. 5. It is contended on behalf of the appellant-Satin Khan that none of the witnesses examined by the prosecution including the prosecutrix have attributed any specific overt act against the appellant-Satin Khan. The victim girl also not stated that the present appellant with intent to outrage her modesty has used any criminal force or assault against her, as such, conviction of the appellant-Satin Khan for the offence under Section 354 of the I.P.C. is absolutely unwarranted. The allegation against the appellant- Satin Khan that he first approached the victim and gaged her mouth and proceeded towards the field of Sheikh Ibrat and thereafter, left her cannot be believed at all, if he might have intended to commit any offence, there was sufficient opportunity to him, but no overt act has been attributed against this appellant. Therefore, no ingredient of offence under Section 354 of the I.P.C. have been proved against the appellant- Satin Khan. Even, no charge under Section 354 of the I.P.C. was framed against the appellant-Satin Khan. Hence, he is entitled for acquittal from the said offence. 8. In alternative, it is argued that considering the nature of offence alleged to be committed by the appellant- Satin Khan and the specific overt act attributed against him the sentence of rigorous imprisonment for one year is disproportionate to the guilt of the appellant. He has remained in custody for 02 months during trial of the case and has sufficiently been punished. He has remained in custody for 02 months during trial of the case and has sufficiently been punished. The appellant – Satin Khan has also sustained the rigors of trial and pendency of this case since the year 2004 and in between the said two decades, he has never been involved in any other case. Therefore, the sentence of appellant-Satin Khan may be reduced to the period of imprisonment undergone along with amount of fine imposed. 9. So far appellant-Sk. Majeshwar is concerned, it is submitted that he has been falsely implicated in this case only on account of long drawn enmity between the parents of prosecutrix and the family of appellant-Sk.Majeshwar. 10. It is further submitted that father of the prosecutrix namely, Abulsama is close friend of Jonaab. There is land dispute between Sk. Jonaab and father of the appellant. A Title Suit No. 11 / 1993 and subsequent Title Appeal No. 08 / 1999 was concurrently decided in favour of father of the appellant. Therefore, with a view to wreak vengeance, the appellant has been falsely implicated in this case. 11. It is further submitted that the prosecutrix was a major girl, aged about 19 years at the time of alleged occurrence. She was medically examined and her hymen was found intact. The Vaginal swab report and other internal and external injuries were also injured. Therefore, in view of undisputed principles of medical jurisprudence where there is specific allegation of having intercourse of period of 10-15 minutes, there must be rapture and laceration of hymen. The internal structure of the vagina, as mentioned in the medical report of the victim also negates the commission of sexual intercourse with the prosecutrix. It is also mentioned in the medical report of the victim is that there was no internal and external injury including on private part. There was even no nail scratch mark on the breast, which also falsifies the deposition of prosecutrix that her both breast were badly molested by the appellant. The trouser allegedly stained with blood was also not sent for chemical examination from FSL. No spermatozoa, either dead or alive, was detected in Vaginal Swab. 12. There was even no nail scratch mark on the breast, which also falsifies the deposition of prosecutrix that her both breast were badly molested by the appellant. The trouser allegedly stained with blood was also not sent for chemical examination from FSL. No spermatozoa, either dead or alive, was detected in Vaginal Swab. 12. It is further submitted that the Investigating Officer (P.W.8) has also discredited the testimony of victim girl pointing material improvement in the statement of prosecutrix, who has clearly stated that “there was blood stains on the trouser” but prosecutrix has not disclosed before him that the trouser was stained with blood. 13. It is further submitted that in the instant case, the prosecutrix is the sole eye-witness of the occurrence but her testimony suffers from material contradictions and improvements. Therefore, she is not wholly reliable witness. The father of the prosecutrix has animus to falsely implicate the appellant. The prosecution story is also not corroborated from medical evidence of the victim. Therefore, the learned trial court has miserably failed to properly appreciate the oral as well as documentary evidence available on record particularly the pleas taken by the appellant in his defence and ignoring the medical jurisprudence and the truthfulness of the prosecutrix and arrived at wrong conclusion about the guilt of the appellant-Sk. Majeshwar. Hence, appellant-Sk. Majeshwar deserves acquittal from the charges leveled against him. Accordingly, this appeal may be allowed after setting aside the impugned judgment of conviction and sentence. 14. In alternative, it is submitted that the appellant – Sk.Majeshwar has remained in custody for more than 03 years and has sufficiently been punished. Therefore, sentence may be reduced to the period already undergone by him. 15. On the other hand, learned APP as well as learned Spl.P.P. appearing for the State in both cases have vehemently opposed the aforesaid contentions raised on behalf of the appellants and defending the impugned judgment and order have submitted that the trial court has rightly acted upon solitary testimony of the prosecutrix, which suffers from no embellishment, contradiction or improvement, rather there are direct and specific allegations against the appellants for commission of rape with her in furtherance of common intention of the appellants. The learned trial court has committed no error of record and rightly passed the impugned judgment and order, which suffers from no infirmity calling for any interference. The learned trial court has committed no error of record and rightly passed the impugned judgment and order, which suffers from no infirmity calling for any interference. This appeal devoid of merit and fit to be dismissed. 16. I have gone through the record the case along with impugned judgment in the light of contentions raised on behalf of both side. 17. Before imparting my judgment, it would be apposite to take brief resume of prosecution evidence. 18. In the instant case, the prosecutrix was examined as P.W.-1 . She has proved the contents of her fardbeyan and deposed that on the date of occurrence, at about 8:00 PM, she had gone to discharge nature’s call and after attending nature’s call, when she stand up, Majeshwar gaged her mouth from behind and taken her towards the sugarcane field of Ibrat and committed rape upon her for about 05 minutes. At the time of occurrence, the prosecutrix was wearing salwar suit and her trouser was stained with blood. Thereafter, Majeshwar fled away towards his home. During her examination in chief, she has specifically stated that it was the accused Sk. Majeshwar who had committed rape on her, whereas the other accused Satin Khan did not participate in commission of rape on her. This witness was declared hostile by the prosecution In her cross-examination, she has deposed that the accused Satin Khan had not gone to sugarcane filed of Ibrat along with her nor he talked to her. She has also deposed that she could not see as to where he had gone. In para-7 of her cross-examination, she has deposed that the accused Majeshwar had committed rape on her by laying her on the ground on her back and also deposed that the soil of the earth where the rape was committed was hard and there was no mud. She further deposed that her salwar and jumper both got blood stained and she did not receive any scratch injury. She has also deposed that accused Majeshwar had caught her breast from over the cloth and he molested her breast fiercely several times. She further deposed that accused Majeshwar made penetration into her private part for about 15 times. The prosecutrix further deposed that prior to commission of this rape, she had not been penetrated by anyone. She has also deposed that accused Majeshwar had caught her breast from over the cloth and he molested her breast fiercely several times. She further deposed that accused Majeshwar made penetration into her private part for about 15 times. The prosecutrix further deposed that prior to commission of this rape, she had not been penetrated by anyone. Further in para-12 of her cross-examination, she has deposed that during the commission of rape on her, she had not sustained any injury on her private part, but she received scratch injury on her left buttock with the sugarcane. She has denied the suggestion of defence that due to land dispute, she had falsely implicated these appellants. P.W.-2 Aboolsama is the father of the prosecutrix, who deposed during his examination-in- chief that he came out of his house in search of his daughter, when she got late in coming back home after attending nature’s call and on the request of his wife, he went out in search of his daughter and found that the accused Majeshwar coming towards the village having been followed by his daughter, who was behind him, whom he saw sobbing on being asked his daughter told him that accused Majeshwar had committed rape on her. He further deposed in his examination-in-chief that he immediately started abusing the accused Majeshwar and when he complained regarding the incident to his parents, they got reacted. In the meantime, his wife also came there, to whom her daughter narrated the whole incident. He further stated that he thereafter came to the police station along with her daughter and narrated the whole story to the Head Clerk of P.S. In his examination-in-chief, he has stated that the inspector has not enquired anything from him. He has also been declared hostile on the request of learned Additional P.P. In his cross-examination on behalf of Majeshwar Sk. he has stated that he has signed on the Exhibit-1 (fardbeyan) on the request of S.I. and deposed that what is written in the fardbeyan he does not know. He further stated that after putting his signature, he was kept in the police station for four days along with his daughter. Where their food is supplied from home and after eating, they slept in the police station. He further stated that after putting his signature, he was kept in the police station for four days along with his daughter. Where their food is supplied from home and after eating, they slept in the police station. After four days, the Inspector has sent her daughter to Dhanbad and her daughter came back after three days i.e 08.01.2004 at 4:00 AM. P.W.-3 Bibi Ajmira is the mother of the victim girl, to whom the victim girl narrated the whole story regarding the incident. P.W.-4 Lajima Bibi is the aunt of the prosecutrix. She has deposed on the point that the victim girl had told her that accused Majeshwar had committed rape on her. This witness is a hearsay witness. She has also been declared hostile on the request of learned Additional P.P. P.W.-5 Dr. Kamendra Prasad is the Medical Officer, who had examined the prosecutrix and has deposed that he had examine Vaginal Swab of victim and found no spermatozoa either dead or alive during microscopic examination. He has proved Exhibit-2. P.W.-6 Md. Azimuddin is a Home guard. He is witness to the seizure list in whose presence the police has seized blood-stained pajama and jampur of the victim girl. He had proved Exhibit-3. In his cross-examination, he has deposed that the S.I. has called him to put his signature on the seizure list, hence, he had signed on it. He further deposed that the S.I. had not read over the contents of the seizure list. P.W.-7 Dr. Puja Prasad is the Medical Officer, who had examined the victim girl. During her examination, she did not find any external injury on her private part. She found some scratch mark on the right side of her face and she further found her hymen to be intact accepting only one finger. P.W.-8 Y.N. Upadhyaya is the Investigating Officer of this case, who had recorded the fardbeyan of victim girl on 01.01.2004 and he had proved the fardbeyan. He has also proved the formal F.I.R. and the same has been marked as Exhibit-7. He had also prepared the production-cum-seizure list of blood stained pajama and jampur of the victim girl in presence of Md. Azimuddin and Md. Aboolsama, on which they put their signature. He has inspected the place of occurrence, where the victim was said to be committed rape. 19. On the other hand, the defence has also examined six witnesses. He had also prepared the production-cum-seizure list of blood stained pajama and jampur of the victim girl in presence of Md. Azimuddin and Md. Aboolsama, on which they put their signature. He has inspected the place of occurrence, where the victim was said to be committed rape. 19. On the other hand, the defence has also examined six witnesses. D.W.-1 Abdul Matin has deposed that his field is adjacent to the Dakaitapool. He further deposed that in an around his field only wheat crop had been grown. Thus, this witness has come to contradict the version of the prosecution that the Dakaitpool, where the victim girl had gone to attending nature’s call, no sugarcane crops had been grown in all the fields. All the defence witnesses namely, D.W.-2 Md. Musharaf, D.W.-3 Sk. Anwar, D.W.-4 Sk. Abul, D.W.- 5 Firoza Khatoon and D.W.-6 Sk. Suddi have stated that during the relevant time of incident only wheat crops had been grown in the fields situated in and around the place of occurrence. 20. In the instant case, the evidence of victim does not appear to be wholly reliable inasmuch as the manner of occurrence, she has deposed that Sk. Majeshwar has committed rape with her, but the medical report shows that she was undergone medical examination within 24 hours of the occurrence, but there was no mark of injury or any abrasion or laceration on internal or external part of the body. She is fully grown-up girl, aged about 19 years and there is allegation of commission of rape by penetrating 15 times which shows full consummation of sexual intercourse with erection of semen. Surprisingly, the medical examination report of the victim shows that there was no internal and external injury on any part of the body. Hymen was found intact and accepting only one finger. In view of the above circumstances, the prosecutrix does not appear to be wholly reliable witness and there is every chance of false implication of the appellants. 21. The Hon’ble Apex Court in the case of Sadashiv Ramrao Hadbe Vs. State of Maharastra reported in (2006) 10 SCC 92 has held in para-9 as follows:- "9. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. State of Maharastra reported in (2006) 10 SCC 92 has held in para-9 as follows:- "9. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen." 22. In my considered view, the cumulative effect of prosecution evidence creates a doubt of happening of the occurrence in a manner and at the place as alleged by prosecution. The victim is not wholly reliable witness, rather she appears to have been motivated by someone else. It appears that the learned trial court has not considered above glaring aspects of the case, which falsifies the testimony of prosecutrix and arrived at wrong conclusion while recording conviction of the appellants. It is trite that severity of charge requires strict prove which has been ignored by the concerned trial court. 23. In view of above discussion and reasons, the impugned judgment of conviction and order of sentence of the appellants is hereby set aside and they are acquitted from the charges leveled against them and accordingly, these appeals are allowed. 24. Appellants are on bail, as such they are discharged from the liability of bail bond. Sureties are also discharged. 25. Pending I.A., if any, stand disposed of. 26. Let a copy of this judgment along with trial court record be sent back to the court concerned for information and needful.