JUDGMENT M.C. Jain, J.
1. Four accused respondents, namely, Dulare, Bablu alias Basant, Siya Ram and Santosh have been acquitted of the charges under Sections 363, 366 and 376 I.P.C. by the impugned judgment and order dated 13.7.2000 passed by the Sessions Judge, Mirzapur in S.T. No. 37 of 1997 which has been challenged by the State through this appeal. There were two other accused Lochan and Pintu who, too, had been committed to the Court of Sessions to face trial, but they having been found under 16 years of age, their case was sent to the Juvenile court.
2. The prosecutrix was Hemanti, married daughter of informant Panchu PW 5. After getting scribed the F.I.R. by Dharmaraj Singh PW 4, Panchu lodged it at Police Station Jamalpur on 9.7.1996 at 8.45 P.M. regarding the incident which allegedly took place in between the night of 7/8.7.1996 at about 8 P.M. in village Oinwa and thereafter at other places the same night.
3. The prosecution case as surfacing from the F.I.R. and the evidence conjointly Was like this: Hemanti (prosecutrix) PW 1 was the married daughter of Panchu PW 5. Hemanti's mother had gone to her parental house and Panchu was also not present at his house, having gone to his work. At about 8.00 P.M. on 7.7.1996, Pintu alias Tolan, Dulare, Siya Ram, Santosh and Lochan abducted Hemanti from her house. Panchu came to know of it from his younger daughter on returning home from his work at about 9.00 P.M. He kept her searching but in vain. On 9.7.1996, he reached his Sasural in village Reewa in search of his daughter who was found there. As per the F.I.R., she informed him that Pintu alias Tolan, Dulare, Siya Ram and Santosh had abducted her. However, the F.I.R. was lodged against five persons i.e. these four and Lochan. Check F.I.R. was prepared by constable Ravindra Singh PW 6 who made entry in G.D. and registered the case. The police swung in action, investigation having been entrusted to S.I. Sakeel Akhtar Khan PW 7 to be ultimately concluded by S.I. Muni Ram PW 8.
4. Dr. Indu Kannaujia PW 2, medically examined Hemanti on 10.7.1996 at 1.10 P.M., as per the report-Ext. Ka-1. No internal or external injury was found on her person. Vagina admitted two fingers easily. The hymen was found torn with tags. There was no sign of bleeding or discharge. No definite opinion about rape could be given.X-ray and pathological test had been advised. X-ray had been taken by Dr. Ashok Kumar Mishra PW 3. On the basis of the X-ray, he estimated age of prosecutrix to be under 16 years or 17 years. However, in cross-examination he stated that according to Modi, she could be 18 years of age also. Dr. Indu Kannaujia PW 2 gave supplementary medical report on 1.8.1996. On the basis of the ossification test, it was opined by her that the age of the girl was below 18 years, but no definite opinion could be given about rape. No spermatozoa were found on pathological test of vaginal smear. Dr. Indu Kannaujia PW 2 admitted in her cross-examination that she was used to sexual intercourse.
5. The star witness of the prosecution was the prosecutrix Hemanti PW 1 herself who, in her testimony before the lower court, testified to have been gang raped by the six accused at different places in between the ill-fated night.
6. The gist of her testimony was that in between the night of the incident at about 8.00 P.M. she was at her house. A short while before, she had gone for sorcery treatment of head-ache to the house of Basant of her village. Lochan accused (whose case was separated and entrusted to juvenile court) came to her house and told her that two ladies were calling her. When she came out of her house, six accused Lochan, Dulare, Bablu, Santosh, Pintu and Siya Ram suddenly picked her up, gagged her and carried her to the Bagichi of Deo Nath on the point of Katta. There they forcibly committed sexual intercourse with her. The first to do it was Santosh and at that time Siya Ram had kept pressing both her hands with his feet, also putting a Katta on her chest. It was then the turn of Bablu who committed rape on her. Siya Ram was the next to ravish her. While these three committed rape on her, she had completely been stripped by them. Thereafter, Dulare accused took her to Sukrat on a cycle and remaining accused stayed in Bagichi. She was made to put on a Kurta and Pyjama. On the way to Sukrat, Dulare committed rape on her in a paddy field. Reaching Sukrat, he took her to a Bagichi where Pintu and Dulare committed rape on her. She had reached Sukrat at wee hours. In the evening, Pintu's father reached there and threatened her that she would be killed in case of making any disclosure to anybody. He directed her to go to her maternal grand-father's house. She then reached her maternal grand-father's house by travelling in a bus. The following day, her father came there in her search. She disclosed him as to what had happened to her. Earlier thereto, she had disclosed her woeful tale of having been raped by the accused persons to her maternal uncle and aunt. Her father then took her to Jamalpur Police Station for lodging the F.I.R. and in the way got written the F.I.R. by Dharmaraj Singh Pradhan of Bahiiwar. She also stated before the lower court that at the time of leaving her house in the night of incident (when Lochan had reached there, saying that two ladies were calling her), she was having jewellery beruwa, Nathini etc. on her person of which she was relieved by the accused. It also came in evidence that earlier to the incident her marriage had been performed, but second marriage (Gauna) had not taken place.
7. The defence was of denial and false implication. According to the accused, the scribe Dharmaraj Singh, (Pradhan of village Bahuwar)-PW 4 was instrumental in their false implication. It was also the part of defence that Hemanti was of loose character and had left her house on the pretext of getting sorcery treatment of headache. After a few days, she returned and to conceal her misdeeds, implicated them falsely.
8. The trial judge did not find the sole testimony of the prosecutrix to be reliable. He also held that her version was not supported by the medical evidence. The prosecution contention of her being a minor aged about 14 years was also not accepted.
9. We have heard Sri K.P. Shukla, learned A.G.A. from the side of the State and Sri S.N. Shukla from the side of the accused respondents. Record of the case is before us which we have carefully perused. The submission of the learned A.G.A. is that testimony of the prosecutrix herself was firm enough to prove the guilt of the accused to the hilt and the trial judge had no justification to discard her trustworthy and confidence inspiring evidence. On the other hand, the learned counsel for the accused respondents urged that a concocted version of rape had been set up by the prosecution at the behest of Dharmaraj Singh PW 4 and the police also lent a helping hand. It has also been urged that no sign of rape or sexual intercourse was found in the medical examination of the prosecutrix. As per her medical examination, she was, it has been stressed, over 18 years of age. The acquittal, according to learned counsel for the accused-respondents, is backed by cogent reasons recorded by the trial court.
10. There can be no quarrel with the proposition that in a case of sexual assault conviction can be founded on the sole testimony of prosecutrix. But the essential requirement is that the same has to be confidence inspiring and it has to be judged in the light of other facts, circumstances and allied evidence emerging on record. To say shortly, the testimony of the prosecutrix is to be scrutinized in the light of entire scenario that surfaces.
11. On carefully scrutinizing the evidence, facts and circumstances of the case as also on cross-checking the findings of the trial judge, we are of the clear opinion that in the present case, the sole testimony of Hemanti PW 1 was not safe, reliable and worthy of acceptance to find the accused persons to be guilty. A number of factors are lined up to back their acquittal. Our view is that the acquittal of the accused-respondents cannot be interfered with which has been recorded for cogent, strong and convincing reasons. The succeeding discussion would render it abundantly clear.
12. It is significant to note that in the present case, the allegation of rape does not at all find place in the F.I.R. Needless to say, the F.I.R. is the earliest versron of the prosecution containing the known facts and circumstances in which the crime was committed including the names of actual culprits and the part played by them, if known. Non-mention of essential known facts in the F.I.R. casts cloud on the prosecution case and gives it a serious jerk. Subsequent embellishments and improvements are often creature of after-thought introducing a coloured version of the occurrence. In the present case, it has come in the evidence that the prosecutrix Hemanti was also taken to the Police Station when F.I.R. was lodged. The F.I.R. lodged by Panchu PW 5 (father of the prosecutrix) inter alia says:-
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13. Hemanti PW 1 herself stated that when her father reached her maternal grand-father's house in her search, she disclosed the entire happening to him. Earlier thereto, she had related the incident to her maternal uncle and aunt. Not only this, she also admitted in her cross-examination that she was present at the time when her father was getting scribed the F.I.R. by Pradhan ( Dharmaraj Singh PW 4). Many a things have gone completely unexplained. The prosecutrix, as per the F.I.R., disclosed the names of four persons, Pintu alias Tolan, Dulare, Siya Ram and Santosh who had abducted her. The F.I.R., however, was lodged against five persons i.e. the above four and Lochan. Lochan's name was not disclosed by the prosecutrix according to the recital of the F.I.R. It may be stated at the risk of repetition that no allegation of rape was made in the F.I.R.
14. The learned A.G.A. argued that the future of Hemanti ( who had already been married) was at stake and out of modesty, the story of rape might not have been related in the F.I.R. He cited a case State of H.P. v. Shree Kant Shekari . In that case there was delay of six months in lodging the F.I.R. The victim was of about 14 years of her age and had been ravished by her teacher. She did not disclose the incident to anyone due to threats given to her by the accused. Few days after the incident, accused again committed sexual intercourse with her. She complained of stomach-ache to her mother who took her to the hospital in the month of September. The Doctor told her about the pregnancy of the victim. On inquiry by mother, the victim disclosed that her conception was due to sexual intercourse by accused in the month of May. The F.I.R. was lodged in the month of November. In the wake of such facts, the apex court held that high court's conclusion that there was unexplained delay in lodging the F.l.R. was not sustainable as the victim was totally unaware of the catastrophe which had befallen her. We are of the firm view that this ruling is not of any help to the prosecution in the set of facts of the present case. The modesty could not be a half way affair because of the future of the prosecutrix (a married lady) being at stake. Admittedly, she had disclosed the whole incident to her father when he met her at the house of her maternal grand-father two days after the incident and she was even present at the time of the dictation of the F.l.R. and also at the time of the lodging of the same at the Police Station. It is not so that she was not aware of what had happened with her. She was sufficiently mature. It cannot be said that there was any threat to her from the side of the accused after she had reached the house of her maternal grand-father. The situation would have been different, had she kept mum throughout for the sake of her reputation and future. But that is not the situation. She stated about gang rape in her statement under Section 164 Cr.P.C. as well as before the court. Therefore, non-mention of the factum of rape in the F.l.R. and contradiction surfacing as to the number of accused in the F.l.R. itself gave a serious jerk to the prosecution case.
15. Further, as per her testimony, she claimed to have been raped by six persons in a single night at three places, being stripped completely and laid on the ground. During the first round of such alleged rape by three accused, namely, Santosh, Siya Ram and Bablu in the Bagichi of Deo Nath, one of them ( Siya Ram) even kept pressing her bare hands with his feet on the ground. In the second round, Dulare accused raped her in paddy field on the way to Sukrat. In the third round Pintu and Dulare raped her in a Bagichi at Sukrat where she reached in wee hours. Strangely, however, no internal or external injury was found on or around her private parts or any part of her body at the time of her medical examination on 10.7.1996. Sexual union without reciprocity from the other side turns out to be a beastly act. In case she had been so ravished by six persons in three rounds in a single night some sings of the same would have been found at the time of her medical examination in the form of bruises, redness, abrasion, etc. in or around private parts or some other part of her body because of the force applied by the accused in making her prey of their sexual hunger. As a matter of fact, her stand had never been consistent and she had been altering and modifying her version. In the F.I.R. only four accused, Pintu alias Tolan, Dulare, Santosh and Bablu were mentioned as per the disclosure made by her, but report was lodged against five persons-these four and Lochan. In her statement before the Investigating Officer she did not name Bablu. However, she named Bablu in her statement under Section 164 Cr.P.C. In her statement under Section 164 Cr.P.C. she named six accused including Dulare as those who committed rape on her. In her evidence before the court, she even added that she was putting on jewellery at the time of her abduction and the accused persons had relieved her of the same at the point of pistol after raping her. Really speaking, the prosecutrix was a witness who could say anything as per exigency of situation or requirement. As observed earlier, Dr. Indu Kannaujia PW 2 admitted in her cross-examination that she was used to sexual intercourse. Prosecutrix Hemanti PW 1, however, testified that her Gauna had not taken place till the time of incident and she never had had sexual intercourse with anyone earlier thereto. Her this statement ran counter to medical evidence of Dr. Indu Kannanujia PW 2 and the fact that at time of her medical examination, her hymen was found torn with old tags and vagina admitted two fingers easily.
16. The prosecution could also not prove that she was under 18 years of age at the time of alleged incident. As per medical evidence, she was under 18 years of age. It is settled position of law that margin of error in age ascertained by pathological examination is two years on either side.
17. It was also a fact that she herself reached her maternal grandfather's house. This part of the story also sounded to be improbable that the father of the accused Pintu reached Sukrat in the evening succeeding the night of incident, threatened her and on his command she boarded a bus and reached the house of her maternal grand father.
18. Yet another important fact to be taken note of is that the accused Dulare, Bablu alias Basant, Siya Ram and Santosh were residents of another village Bahuwar. Hemanti PW 1 admitted before the court that she did not know these accused persons from before. The incident allegedly occurred in the night. She claimed to have come to know the names of the accused as they were calling each other by name. The F.I.R., however, contained the names of the accused with their parentage and the village of their residence. It can justifiably be inferred that other(s) had intervened in shaping the recital of the F.I.R. containing the names, parentage and the village of residence of the accused persons.
19. In view of the above discussion with threadbare analysis of all relevant factors, reliance could not be placed on the testimony of the prosecutrix. Mere caption of the case being of gang rape would not induce an instinctive reaction against the dispassionate examination of the evidence including medical aspect and other factors surfacing on record.
20. Finding no merit in this appeal, we hereby dismiss it and affirm the judgment of acquittal recorded by the trial judge.
21. Certify the judgment to the lower court.