JUDGMENT Umeshwar Pandey, J.
1. This jail appeal arises out of the judgment and order of conviction and sentence dated 20.7.2001 passed by special Judge (D.A.A.), Banda. The informant-prosecutrix Smt. Savitri is said to have been raped by the accused appellant Surajbhan Singh @ Puttu and co-accused Birbal Singh @ Pappu in the afternoon of 22.3.1995 at about 4.00 p.m. It is alleged that while she was scrapping grass in the field, the aforesaid two accused along with another person arrived and after threatening her against her life, she was forcibly raped in the field itself. The son of the prosecutrix (PW 3) Ram Das was also there, who is said to have snatched certain ornaments belonging to the prosecutrix. The F.I.R. of the incident was lodged by her the next day at 2.45 p.m. She was sent for medical examination and PW 5 Dr. Shashi Saxena, then Medical Officer, posted in women hospital, Banda, conducted it and found that Smt. Savitri was a grown up lady used to sexual intercourse. No injury on private part was noticed. One injury upon Smt. Savitri's cheek was found. She was referred by Dr. Shashi Saxena (PW 5) for medical examination to Dr. Kesheo Gupta (PW 2). Dr. Gupta found that the said injury on cheek was a teeth bite. The vaginal smear, which was sent for pathological test, was found negative for presence of dead or alive spermatozoa.
2. PW 4- Ranjeet Singh Gaur conducted the investigation of the case, recorded the statements of the witnesses, inspected the spot and after completing all the formalities, he submitted the charge sheet against the appellant as well as the other co-accused Birbal Singh @ Pappu.
3. Both the accused were charged for the offences punishable under Sections 376 and 394 I.P.C. by the trial court and they pleaded not guilty to the charge. They also stated that they had been falsely implicated due to enmity.
4. The accused Birbal Singh @ Pappu had absconded while the trial was going on, therefore, his case was separated. The trial was completed as against the appellant Surajbhan Singh @ Pattu.
5. The prosecution examined five witnesses in this case out of whom PW 1-Smt. Savitri, the prosecutrix and PW 3-Ram Das, her son are claimed to be eyewitnesses; PW 2- Dr. Shashi Saxena are the formal witnesses. The defence has not examined any witness in this case.
6. I have heard Sri S.D. Ojha and Sri B.S. Shrinetra, learned counsels for the appellant and learned A.G.A. for the opposite party.
7. In the present case, as per the F.I.R., Surajbhan Singh @ Puttu and Birbal Singh @ Pappu are said to have arrived in the field before the incident and after giving threats against her life, they raped the prosecutrix Smt. Savitri. These accused are named in the evidence given by the prosecutrix as PW 1 before the trial court. She has clearly stated in the cross examination that at the time of incident she neither knew the accused from before nor she was acquainted with their names.
8. It was some residents of the village, who had disclosed the names of the two accused persons and thus only they could be named in the F.I.R. It is not disclosed anywhere in the evidence of Smt. Savitri as to who were those villagers, who had disclosed the identity of accused persons, which led her to name them in the F.I.R. How and in which manner PW 1 was detailed about the identity of accused from the villagers is also not disclosed in the evidence given before the trial court. As regards the other eyewitness, who happens to be the son of prosecutrix, who was only about 08 years of age at the time of incident, he also admitted in the cross-examination that he had though seen the accused persons on the spot but he did not know their names and he could learn their names only from his mother later on. This statement of PW 3 also does not help the prosecution to any extent because the accused were not known to him from before when he saw at the time of incident nor he could identify them by their names. He knew their names only from his mother. Now the question arises as to how those certain villagers detailed the identity of the culprits to the prosecutrix when they are also not said to be present on the scene where the offence was committed nor they had seen the accused persons even after commission of offence while they were they were proceeding from the said place of incident.
9. This PW 3, son of Smt. Savitri is though claims himself to be an eyewitness of the incident but is not named in the F.I.R. he during the cross examination has admitted that by the time he reached his mother on the spot, the accused persons had already left the place. PW 3 further says that he had not seen any injury present on the body of his mother nor he noticed her broken bangles or torn blouse on the spot. PW 1 claims that while in scuffle during the incident her bangles were broken and that her blouse was also torn. If this was actual state of affairs and PW 3 was present there, witnessing the incident he should have noticed all these facts and in case he had not been able to get the sight of the same, there is definite occasion of doubt in the claim of prosecution about his presence at the time incident on the spot. As such PW 3 his presence at the time of incident on the spot. As such PW 3 is also not found to be a reliable witness, whose statement with regard to the commission of rape and robbery of his mother given during the trial should be accepted as true.
10. In the present case, the F.I.R. is also inordinately delayed without any explanation available therein. There is no satisfactory reason given in the statement of PW - 1 as to why she lodged the F.I.R. at the Police Station after about 22 hours of the incident. This aspect of the matter also goes to the root of prosecution case and the F.I.R. as is available cannot be said to be a safely acceptable corroborative evidence. As regards the medical examination reports (Ext. Ka-2, Ka-8, Ka-9 and Ka-10) of the prosecutrix, they also do not help much towards corroboration of the story as narrated by prosecutrix, PW 1. The reports prepared by Dr. Shashi Saxena do not suggest that there was any sign of commission of rape upon Smt. Savitri. She was lady found to be used to sexual intercourse. Her vagina did not contain any spermatozoa. She had one injury, which is said to be caused by teeth bite, as per Ext. Ka - 2. There is no reference of any teeth bite injury having been caused to Smt. Savitri in the F.I.R. (Ext. Ka - 1) which she lodged at the Police Station. This was caused by either of the accused while they were forcing her for the rape, it must find mention in the report lodged at the Police Station. As regards the peaces of bangles, which have been recovered from the place of occurrence by the Investigating Officer vide Ext. Ka-2, PW 1 admits that she did not mention about it to the Investigating Officer while her statement was recorded under Section 161 Cr.P.C. she had given an explanation that she was extremely harassed by the incident and because of that only he could not recall that fact to mention it before the Investigating Officer. This recovery of broken bangles as noted in Ext. Ka - 2. also does not lend required corroboration to the evidence given by the prosecutrix as PW 1 before the trial court. Her torn blouz and spotted petticoat about which she has stated in her evidence as PW 1 do not find any reference during the investigation nor the same have been produced before the trial court. As such, that part of the statement of PW 1 also does not get corroboration from the material available on record and this failure on the part of the prosecution is bound to leave an impression upon the court that these facts as stated by Smt. Savitri may be incorrect also.
11. It, thus, appears from the totality of the evidence that there is no proper identification of the accused persons as to ascertain their actual involvement in the present crime. There is no supporting evidence of any witness to the evidence given by the prosecutrix, which would substantiate her version before the trial court. There is also no convicing corroborating evidence. It is further to be noted that there is no clinching circumstance available in the case, which could lead the court to an irresistible conclusion that the appellant accused along with other co-accused had actually committed rape upon PW 1 on the alleged date, time and place. It is further to be noticed that the ornaments which PW 1 claims to have been snatched from her body have also not been recovered from the search of the residence of the accused appellants. As such, the whole evidence as made available during the trial cannot be said to be such which could successfully prove the allegations made against the appellant and for which he stood the trial before the court below. It appears that the trail court without considering the aforesaid aspect of the matter had by a passing remarks made in the impugned judgment recorded conviction of the appellants and the same cannot sustain in the eye of law. It has to be interfered with in the present appeal.
12. In result, the appeal is allowed and the judgment and order dated 20.07.2001 is hereby set aside. The accused appellants Surajbhan Singh @ Puttu is acquitted for offences punishable under Sections 376 and 392 I.P.C. He is in the lock up and shall be released forthwith if not wanted in any other case. A certified copy of this order along with original record of the trial court be immediately transmitted to the said court for necessary follow up action.