JUDGMENT : Pradeep Kumar Srivastava, J. Heard Mr. Mahesh Tewari and Mr. S.H. Haque, learned counsel appearing for the appellants and Mr. Naveen Kumar Ganjhu, learned A.P.P. and Mrs. Nehala Sharmin, learned Spl.P.P. appearing for the State. 2. Appellants of both the criminal appeals have challenged the judgment of conviction and order of sentence dated 14.08.2007 passed by learned Additional Sessions Judge, F.T.C.-VI, Dhanbad in Sessions Trial No. 281 of 2000, whereby and whereunder, the appellants have been held guilty for the offence under Sections 376 / 34 of the I.P.C. and sentenced to undergo R.I. of seven years. FACTUAL MATRIX 3. The factual matrix as unfolded in the FIR is that on 04/05.06.1999, the prosecutrix (P.W.-5) was sleeping alone in her house. In the night at about 2:00 AM, she heard sound of knocking the door, on her query, a person told that he is Doctor Sashi and asked her to open the door. The prosecutrix did not open the door, rather told him to come in the morning. Thereafter, the door was bolted from outside by the accused and she noticed that one person climbing over the mud tiles roof, removed some of the tiles and making a hole came down into the room of the prosecutrix, who was Rajendra Gupta. It is further alleged that the said Rajendra Gupta caught hold of the prosecutrix, laid her down on the cot, assaulted her and committed rape on her. It is further alleged that the accused opened the bolt of inside door and went outside, meanwhile, accused Sashi Kumar also entered into the room and tried to commit rape on her, but due to protest of the prosecutrix and also on account of gathering of people of vicinity on hearing hulla, both accused persons fled away extending threatening of dire consequences to the prosecutrix. 4. On the basis of above information, Katras (Tetulmari) P.S. Case No. 169 of 1999 was registered for the offence under Sections 376/34 of the I.P.C. against the above named accused persons. After investigation of the case, both the accused persons were charge sheeted for the said offence. After taking cognizance, the case was committed to the court of Sessions and in due course, transferred to the concerned trial court and after conclusion of trial, the appellants were held guilty and sentenced as stated above. 5. After investigation of the case, both the accused persons were charge sheeted for the said offence. After taking cognizance, the case was committed to the court of Sessions and in due course, transferred to the concerned trial court and after conclusion of trial, the appellants were held guilty and sentenced as stated above. 5. Learned counsel for the appellants assailing the impugned judgment and order has vehemently argued that the appellants have been convicted in this case only on the basis of solitary testimony of prosecutrix, which does not find corroboration from any other witnesses examined in this case. Even the Doctor, who has medically examined the victim, has not found any sign of rape with the prosecutrix. 8. It is further submitted that the prosecutrix has claimed that her wearing clothes were stained with semen and blood and she went to police station wearing the same clothes, but the same were not seized and sent for chemical examination. The appellants were also not put for medical examination and more surprisingly, no sign of rape was found in the medical examination report of the prosecutrix. 9. It is further submitted that as per FIR, the prosecutrix raised alarm and several persons of vicinity assembled there, hence, appellant Dr. Sashi cannot succeed in commission of rape with her and both the accused persons fled away. It is utter surprising that no witness of vicinity of the prosecutrix has been interrogated by the I.O. during investigation of the case, except her sister and brother-in-law, who have also not supported prosecution story. The learned trial court has miserably failed to properly appreciate overall evidence led by prosecution and undeserving emphasis has been given to the evidence of prosecutrix without testing her veracity. 10. It is further submitted that certainly there is no impediment in conviction of the accused on the bais of solitary testimony of prosecutrix, but the prudence requires corroboration of her testimony from some independent source, if she does not appear to be a witness of sterling quality. 11. It is further submitted that in the instant case, the prosecutrix has implicated the appellants in a false case in collusion with her sister Manju Devi (P.W.-4), who has also resiled from her earlier version and not supported the prosecution story. 11. It is further submitted that in the instant case, the prosecutrix has implicated the appellants in a false case in collusion with her sister Manju Devi (P.W.-4), who has also resiled from her earlier version and not supported the prosecution story. In the facts and circumstances of the present case, the solitary testimony of prosecutrix cannot be made basis for conviction of the appellants, being inherently unreliable, motivated and suffers from suppression of material facts. 12. It is further submitted that the non-examination of I.O. of the case has caused grave prejudice in the defence of the appellants because manner and place of occurrence could not be proved to the hilt. The I.O. might have apprise the court whether the roof of the room wherein the prosecutrix was residing was opened by removal of tiles from the roof and any tiles so removed has been seized in this case and whether on inspection of place of occurrence, any person of vicinity have corroborated the happening of the aforesaid incident, but the same could not be brought on record. These vital facts, if not proved, have the tendency of demolishing the prosecution story. 13. The learned trial court has miserably failed to test the every pros and cons of the case and the attending circumstances, under which the alleged ghastly offence was committed with the victim and arrived at wrong conclusion merely on the basis of sympathetical approach towards the victim, therefore, the impugned judgment of conviction and order of sentence of appellants is liable to be set aside and this appeal is fit to be allowed. 14. 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 has rightly passed the impugned judgment and order, which suffers from no infirmity calling for any interference. This appeal being devoid of merit is fit to be dismissed. 15. The learned trial court has committed no error of record and has rightly passed the impugned judgment and order, which suffers from no infirmity calling for any interference. This appeal being devoid of merit is fit to be dismissed. 15. I have gone through the record of the case along with impugned judgment of conviction and order of sentence of the appellants in the light of contentions raised on behalf of both side. 16. Before imparting my judgment, it would be apposite to take brief resume of prosecution evidence. 17. In the instant case, the prosecutrix was examined as P.W.-5, who is by occupation a labour and married woman. She has proved the contents of her fardbeyan and deposed that on the date of occurrence, at about 2:00 AM, she was alone and sleeping in her house, meanwhile Sashi Kumar and Rajendra Gupta knocked her door. She declined to the open door, then they were insisting upon and finding no way, accused Rajendra Gupta entered into her house climbing over the roof and removing the mud tiles and jumping into the room. At first, she was assaulted by accused and thereafter, he committed rape with her and went out by opening the door from inside then Sashi also entered into her room with intention to commit rape with her and was attempting to commit rape, meanwhile upon raising hulla, several neighbours assembled there, then both fled away. She has lodged FIR at police station. She was also medically examined. She has further stated that earlier her statement was recorded by Magistrate wherein men of accused person forced her to give false statement that nothing happened with her at the instance of accused persons, rather she was living with another person at the time of occurrence. In her cross-examination, she admits that at the time of recording her statement under Section 164 of Cr.P.C., she did not disclose that out of fear, she was making statement and this fact was also not disclosed before the police. She also admits that her marriage was solemnized about 05 years ago and she is a mother of girl child, aged about 03 years. Her husband is also labour. At the time of occurrence, her husband and baby child were residing at Village- Raghunathpur. She also admits that Manju Bauri (Devi) (P.W.-4) is her mauseri sister, whose husband’s name is Dina Bauri (P.W.-3). Her husband is also labour. At the time of occurrence, her husband and baby child were residing at Village- Raghunathpur. She also admits that Manju Bauri (Devi) (P.W.-4) is her mauseri sister, whose husband’s name is Dina Bauri (P.W.-3). She also admits that as regards the occurrence, she reached the police station at 9:00 AM and informed, which is situated at a distance of 200-300 yards from her house and her sister Manju Bauri (Devi) (P.W.-4) was also residing in the vicinity at a distance of 100 yards from her house. She also admits that at the time of occurrence, she raised alarm and due to laying down by the accused, she has sustained injuries on her head, which was swollen. The occurrence continued over 02 hours. In the meanwhile, none of the neighbour assembled. Her wearing clothes were also stained with semen and blood which was seen by police but was not seized and she was also wearing the same clothes at the time of her medical examination, but her clothes were not seized by the Doctor. She also admits that after three days of occurrence, she went for medical examination. She further admits that she was acquainted with the accused persons, when she was residing with her sister Manju Devi at her house. The accused persons were identified by her sister. She does not know who brought her for getting statement recorded before the Magistrate. She has denied the suggestion of defence about giving false evidence and false implication of accused persons and no such incident ever took place. 18. Another main witness is Manju Devi (P.W.-4).According to her evidence, since about 03 years, the prosecutrix, who is her younger mauseri sister, had been residing with her in her house. On the date of occurrence itself, the prosecutrix took a rented house and started residing there alone. She has further stated that on the date of occurrence, while prosecutrix was sleeping alone in her rented house, the accused persons Rajendra Gupta and Dr. Sashi entered into her house climbing over the roof which was disclosed to her by the prosecutrix on the date of occurrence itself at about 4:00 AM. In her cross-examination, she admits that the prosecutrix is a married lady, but her husband has left her. Sashi entered into her house climbing over the roof which was disclosed to her by the prosecutrix on the date of occurrence itself at about 4:00 AM. In her cross-examination, she admits that the prosecutrix is a married lady, but her husband has left her. She took rented house at a distance of 300 yards from her house, that area is surrounded with house of several person i.e. about 50-60 houses. She further admits that when she came to know about the occurrence from the prosecutrix, she along with her went to police station and leaders of Labour Union namely, Gopal Singh, Rajendra Singh also went to police station along with them and reached at police station about 8:00 AM. She further admits that at the police station, she was interrogated and stated all the events, which was reduced into writing and she put her thumb impression on it. She remained at police station till 6:00 PM. Thereafter she returned and the prosecutrix returned home after two days from the police station. She has denied the suggestion of defence that on instigation of Gopal Singh and Rajendra Singh in collusion with her sister (prosecutrix), she has falsely implicated the accused persons in this case. 19. P.W.-1 Indradeo Ram, P.W.-2 Bablu Das and P.W.-3 Dina Bauri (husband of P.W.-4) have been declared hostile by the prosecution and expressed their no knowledge about the occurrence. 20. P.W.-6 Dr. Luxmi Pandey is the Doctor, who has examined the prosecutrix. She has stated that on 05.06.1999 at 3:00 PM, she examined the prosecutrix and found secondary sex character developed. Nothing abnormal detected about external injury. About internal injury, she has stated that hymen old ruptured and uterus activated normal size. According to Pathologist, spermatozoa not found in high vaginal swab. The radiological age of the victim is more than 19 years. She has proved the medical report and the same is Exhibit-1 in this case. In cross-examination, she has stated that she did not find any positive symptom regarding the rape. 21. On the other hand, the case of defene is denial from occurrence and false implication. One defence witness namely, Niwas Kumbhakar (D.W.-1) of the same locality has been examined by defence. According to his evidence, the prosecutrix has taken a rented house of one Surajmal Das, but she was residing with her sister in another house. 21. On the other hand, the case of defene is denial from occurrence and false implication. One defence witness namely, Niwas Kumbhakar (D.W.-1) of the same locality has been examined by defence. According to his evidence, the prosecutrix has taken a rented house of one Surajmal Das, but she was residing with her sister in another house. The house was under dilapidated condition then Surajmal Das demolished the same for re-construction, which was protested by the prosecutrix and she was scuffling. She was requesting the accused persons to become witness against the landlord to lodge case against him, but they declined. 22. The documentary evidence of defence is Exhibit-A the certified copy of Statement of the Prosecutrix under Section 164 of Cr.P.C. recorded by Magistrate on 2nd July, 1999, wherein she has stated that on 05.06.1999 in the night, she was sleeping in her house and her husband had gone to outside. Her brother Debasis was also present in the house. No one entered into her house. In the next day morning, on 6th June, 1999, she was called upon by police station where her thumb impression was taken on blank paper. Thereafter, she returned to her home. 23. From the aforesaid discussions of entire evidence adduced in this case, it is crystal clear that except the prosecutrix, no one is eye-witness of the occurrence. It is admitted fact that the prosecutrix was residing with P.W.-4 Manju Devi, her mauseri elder sister and on the date of occurrence itself she took a rented quarter nearby the house of P.W.-4 and started residing there. It has also surfaced that the appellants were introduced to the prosecutrix by P.W.-4, who used to frequently visit the house of P.W.-4. The prosecutrix has stated that she went alone at 9:00 AM to the police station and informed about the occurrence. Later on, she disclosed the incident to her sister (P.W.-4). As against this, P.W.-4 has specifically stated that the prosecutrix came to her house at about 4:00 AM and disclosed about the incident. Thereafter, she along with Labour Union Leaders namely, Gopal Singh and Rajendra Singh went to police station and the prosecutrix lodged the FIR. In the same breath, P.W.-4 states that her statement was reduced into writing and she put her thumb impression indicating that she has lodged the FIR and the victim arrived at police station later on. Thereafter, she along with Labour Union Leaders namely, Gopal Singh and Rajendra Singh went to police station and the prosecutrix lodged the FIR. In the same breath, P.W.-4 states that her statement was reduced into writing and she put her thumb impression indicating that she has lodged the FIR and the victim arrived at police station later on. At this juncture, it becomes important to note that the statement of prosecutrix recorded under Section 164 Cr.P.C. was not proved by the prosecution, which has been brought on record by the defence as Exhibit-A and clearly indicates that the prosecutrix in her statement has stated nothing about commission of rape with her by the appellants, rather she was residing with her brother in the house. It is also apparent that as per prosecutrix, she raised alarm immediately and several persons of vicinity assembled there which influenced the accused persons to fled away from the place of occurrence, but not a single man of vicinity has been examined in this case. The manner of entrance into the room of the prosecutrix is also doubtful in view of non-examination of the I.O. There is no evidence of removing of mud tiles of roof from the rented house of the prosecutrix. The medical examination report of the victim does not corroborate the factum of commission of rape with the victim. The overall factual aspects, as stated by the witnesses, reveals a doubtful story. It is not brought on record as to who was instrumental in influencing the prosecutrix to give false statement before the Magistrate. The role of P.W.-4 in the entire episode tells a different story leading to inference about false implication of the appellants at her instructions. The colourable statement of prosecutrix without corroboration from her medical examination and absence of proper proof of place of occurrence coupled with non-examination of investigating officer of this case are vital factors to disbelieve the prosecution story. It is true that conviction in a rape case can be based upon solitary testimony of a victim when she appears to be wholly reliable, but in the instant case, the conduct of the victim from the very inception of the alleged occurrence creates a doubt regarding genuineness of her version. It is true that conviction in a rape case can be based upon solitary testimony of a victim when she appears to be wholly reliable, but in the instant case, the conduct of the victim from the very inception of the alleged occurrence creates a doubt regarding genuineness of her version. Therefore, as a matter of prudence, some corroboration from independent source is required to lend assurance about the truthfulness of the prosecution story, which is absolutely lacking in this case. 24. In my considered view, the cumulative effect of prosecution evidence creates a doubt in 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 properly considered overall aspect of the case and glaring infirmities appearing on record through the prosecution evidence itself and arrived at wrong conclusion while recording conviction of appellants. It is trite that the gravity of charge requires strict proof which has been ignored by the concerned trial court. 25. 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 this appeal is allowed. 26. Appellants are on bail, as such they are discharged from the liability of bail bond. Sureties are also discharged. 27. Pending I.A., if any, stand disposed of. 28. Let a copy of this judgment along with trial court record be sent back to the court concerned for information and needful.