::. ...0NHDV& PAGE IN THE HONQJRABLE HIGH CHJRT OF CHI-IATTISGARI-I AT BILASPUR. RIMINAL APPEAL N0. jl®2l /2oo1 APPELLANTS ACCUSE5 IN JAIL. u A o Vijaya Kumar S/o. Ganga Ram a e 19 years, Carpenter, O. Village Parpa ,Patelpara P.S. Fraizerpur,Distt.Bastar 2. Bhuvneshwar S/o. Sadhu Ram, a e 19 years, Carpanter R a Village Parpa ,Dongaripara r P.S. Frazerpur,Distt. Bastar. ‘ VERUS S a ‘ RESPGNDENT : The State of Chhattisgarh. £ §§IMINAL @PEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE . C . HIGH COURT OF CHHATTI$GARH AT BILAsPUR Single Bench: Hon'ble Shri‘ Dilip Raosaheb Deshmukh, J. Criminal Appeal No.1004/2001 KirTiwas V Vs. w 3 Sfa‘re of Chhu‘r‘l'isgarh ; _ ‘ ‘ ‘ & Criminal Aggeal No.1oz1/éoo1 Vijay Kumar- and anofher Vs. The Sfa're of Chhaffisgarh Posf for Judgmenf : 25032006 Y Sdl- \ Dilip Raosaheb Deshmglgh/ / 7/ >3 Judge .1 iir j Criminal Appea! No.1004/2001 Kirfiwas ’ Vs. Sfa'fe of Chha‘l’fisgar'h 8c Criminal Appeal No‘1021/2001 Vijay Kumur and anoTher Vs. The Sfafe of Chha‘t‘risgarh Shri Pmfullu Bhnmi, Counsel for *Hne nppellunfs. 5hri U.K.S.Chandel, P.L. for fhe Sfafe. JUDGMENT (Deiiver-ed on isfiday of March 2006) 1. In sessions case No.458/2ooo 5hr: c.33ajpai, learned 3rd Addi‘rioml Sessions Judge, Basmr place Jagdulpur' vide Judgmen'r dafed 13.10.2001 convicted ‘Hrm appellanfs Vijay and Bhuvneshwar- under Secfions 363, 366, 376 (2) (9) and 342 I.P.C. and sen‘l'enced fhem To undergo RI. for five year's and a fine of Rs.500/- and in defauif To, undergo simple imprisonmenf for four monfhs under Sec‘i’ion 366 I.P.C., 1'0 under undergo RI. for fen years and a fine of Rs.1000/- and in defauH To undergo simple imprisonment for eigh'r monfhs under Seci’ion 376 (2) (g) I.P.C. and fo undergo RI. for six monfhs under Seci'ion 342 I.P.C. and fur‘rher convici’ed appeiionf- @ Kir‘riwas under Secfions 363 and 366 I.P.C. and sen+enced him fa undergo RI. for five years and a fine of Rs.500/- and in defaulf To undergo simple imprisonment for four months under Secfion 366 I.P.C. 2. Being aggrieved by fine above men'fioned judgment The oppeiianfs-Vijcxy and Bhuvneshwar have preferred Criminal Appeal No.1021/2001 and appellan‘r-Kirfiwas has preferred Criminal Appeal No.1004/2001 which are being disposed of by fhis common judgment 3. Briefly sfafed The prosecu‘hon sfory Is fhal' on 12 07 2000 ai aboui' 10 45 A M The prosecu'rrix a girl aged abou‘l 14 years and a sfuden-l' of Class 7m as coming fo fhe school wifh her cousin-sister Jaishree P.W.6. When fhey reached near The Aanganbaa‘i i‘l' sfarfed raining Bo'rh girls decided +0 ref-urn home While returning on fhe road near fhe burial ground fhey saw The appellanfs ViJay and lBhuvneshwar sTanding on The road No sooner The girls bypassed The labove named appellanTs, appellanT~Bhuvneshwar came from behind and held fhe prosecufrix and gagged her moufh. Appellanf Vijay held Jaishree P.W.§. Appellan‘r Kiri’iwas also came fhere. He held The prosecuTrix by her legs, The appellanT;Bhuvneshwar held her by her hands while The appellanT-Vijay lifTed Jaishree P.W.6 and The appellanTs Thus Took boTh giris To The house of Bhuvneshwar. AfTer leaving The prosecuTrix aT The house of appellanT—Bhuvneshwar, appellanT-KirTiwas wenT away. Jaishree P.W.6 was lefT ouTside The house afTer being ThreaTened by appellanTs-Vijay and Bhuvneshwar ThaT if she shouTed They would kill her. ‘Jaishree P.W.6 remained ouTside The house, IAppellanTs—Bhuvneshwar and Vijay wenT inside The house and afTer undressing The prosecuTi-ix, undressed Themselves and commiTTed rape on The prosecuTrix one afTer anoTher. AppellanT— Bhuvneshwar was The firsT To commiT rape on The prosecuTrix while she was lying on The coT. ThereafTer, appellanT-Vijay commiTTed rape exam on me prosecu+rix. AT +his juncture, Juishree P.W.6, who was oufside The house, showed “bro‘fher is coming'C Hearing her shou'fs, The appellan'rs dressed fhemselves and ran away. Pradeep P.W’7, bro‘l'her of' 1+1e prosecu'rrix came To The house of Bhuvneshwar. The prosecuTrix Toicl him Tha'l' The appeHanTs—Vijay and Bhuvneshwar had c‘ommiTTed rape on her. Pradeep P.W.7 asked The Two girls To go home and wen? in search of The appeilqnTs‘ 4. The prosecuTrix P.W.5 and Jaishr'ee P.W.6 wenT home and in?o‘F-med Hariram P.W.3, faTher of The prosecuTrix, abouT The incident Hariram on The same day aT 3.30 RM. wenT To Police STaTion Fmzérpur, siTuaTed abouT Two kilomeTers away, along wiTh The prosecuTrix who lodged FIR. Ex.P.6. In The F.I.R., The name of appellanT-KirTiwas was noT menTioned. He was referred To as an unknomm boy of The some locaIiTy i.e. Pohelpam. The prosecuTrix was senT Tor- medical examinaTion on 12,7.2000. Dr. 5mT. 5, Pandey P.W.11 examined The prosecuTrix buT did noT find any injury eiTher exTernal i or on her privaTe parTs. She found an Void Tear in The hymen. The vagina admiTTed one finger’ No sympToms of rape were found on The prosecuTrix, Her vaginal slides were prepared and sealed which was seized vide Ex.P.32 on 13.7.2000. On The same day one brown chocolaTe coloured “V" shaped old nylon elasTic underwear was seized vide Ex.p.3 from The prosecuTrix. On 14.7.2000 The appellanTs- Bhuvneshwar and Vijay were arresTed vide Ex.P.16 & Ex.P.17. On The same day one sky blue coloured ‘Lux underwear’ was seized from appellanT Bhuvneshwar and one yellow coloured “Kaliya 30" underwear was seized from appelianT-Vijay vide Exs.P.4 d P5. BoTh The underwears were examined by Dr. V.K.Jha P.W.8 AssisTanT Surgeon, GovT. HospiTaI, Jagdalpur who found some sTains on The underwears seized from The appellanTs vide Exs.P.4 6i P5. He sealed boTh The @ under-wears and advised for chemical analysis of fhe s'rains f0 ascerfuin fhe presence of semen. 5. On 12.09.2000 vide memo No.56 Ex.P.21, *he underwear 0f fhe presecu'frix, her vaginal slides and “rhe underwears seized from fhe appeiian‘i’s-Bhuvneshwar and Vijay were sen-r for chemical analysis 1‘0 i The Forensic Science Laboratory for confirmafion of semen and human i spermatozoa. Vide reporf da'iegl 21.6.2001 Ex.P.22, presence of semen and human spermatozoa was confirmed on all the above mentioned i articles. a . lo. Appellants—Vijay and Bhuvneshwar Were sent for medical examination on 14.7.2000. On examination, Dr. Virendra Kumar Jha 1P.W.8 found that smegma was present on the glans penis of both " appellants Vijay and Bhuvneshwar.“ No external injury was found on their person. Vide Ex.P.9 and P.11, he opined that he could not say that the appellants-Bhuvneshwar and Vijay could not perform sexual intercourse. 7. The school admission register Ex.P.1(A) was seized from Ku. Kamolini Sawal P.W.1, Headmistress of the Primary School, Shanti Nagar which revealed that the date of birth of the prosecutrix was mentioned as 1.5.1985 at 5l.No.322. Another register Ex.P.2(A) was seized which ' revealed that on 4.7.1989 while admitting the prosecutrix in the school, the date of birth of the prosecutrix was informed by Daymati Yadav, mother of the prosecutrix to be 1.5.1985. For determination of the age of the prosecutrix, she was sent for ossification test. Dr. Govind Singh P.W.10 who conducted the radiological’ examination, found that fusion of head of radius, Olecranon process, head of humorous, head of distal end of Ulna, distal end of radius and the pelvic bone had taken place and opined that the age of the prosecutrix was between 15 - 19 years. . @ 8. AppeNanf-Kir'riwas was arms-red much Ia‘rer on 30.09.2000 vide arresf memo Ex.F.18. Tahsildar J.R.Choumsiu P.W’13 held fhe tes+ idenfifica‘l‘ion parade in fhe Tahsi! Office vide memo Ex.P.36 and repor'fed fha'f The prosecu‘h‘ix iden‘rified the appellanf-Kir‘l'iwas. Spof map was prepapred by Sub-Inspedor Rafnesh Mishm P.W.9 vide Ex.P.13. Affer comple‘rion of investigufion, 'rhe appelhnfs were prosecuted. Appellanfs-Vijay and Bhuvneshwar were charged for offences under Secfions 363, 366, 376(2)(g) 342 and 506—3 I.P.C. and appellan'r-Kir'riwas was chargedunder See'l’ion 363 & 366 I,P.C. The appellanfs abjured The guih‘, pleaded innocence and false implicafion an‘dfexamined ’5m1'. Suni‘l'a Shukla D.W.1, Reader of Tahsildar, Ku. Savifa Markam D.W.2 Pafwari who were presen'l' during iden'fificafion. They‘ aiso examined Gangaram D.W.3, Gopal D.W.4 and Anil Kumar D.W’5 To creafe an alibi for The appellan'fs Vijay and Bhuvneshwar by showing fha‘l’ on 12.7.2000 fhey were presenl' in The village Panchayaf af fhe fime of occurrence. Gangaram D.W.3, fa'rher of fhe appellanf— Vijay sfafecl fhaf he had pledged one acre agricul‘rural land wifh Hariram Yadav, fafher of The prosecuTrix, for Rs.16,000/-‘ AfTer reTurning The amounfof Rs.16,000/— vide receip‘l‘ Ex.D.3, he‘asked Hariram P.W.3 To reTurn The documenTs of pledge, buT Hariram refused. Hariram had also ThreaTened him for which a reporT was lodged vide Ex.D’4 aT P.S. Parpa Frazerpur. IT was Thus conTended ThaT The appellanTs were falsely implicaTed. 9. IT was also conTended in The alTernaTive during argumenTs by defence before The Trial Judge ThaT iT could noT be ruled ouT ThaT The acT of sexual inTercourse, if any, by The appellanTs Vijay and Bhuvneshwar wiTh The prosecuTrix was wiTh her consenT. The learned Trial Judge negaTived The conTenTions raised by The defence in fora and relying upon The evidence of prosecuTrix P.W.5, Jaishree P.W.6, Prudeep P.W.7, Harimm P.W.3 and also +he evidence of Ku. Kamolini Sawul P.W.1, Headmis'l'ress of Primary School, Shan'l'i Nagar, convicted and senfenced ‘fhe appellams as men'riohed in para 1. 10. Shri Pmfulia Bhurcn‘, learned counsel for ‘Hne appellanfs has assailed The impugned judgmen'l‘ firsfly on 1he ground Tha'l' considering 'rhe ossifica'rion Tesf repori Ex’P.31 and bearing in mind fhe legally permissible margin of error of IWO years on eii'her side if could no? be ruled ouf 'rha'r The prosecu'rrix was above 18 years of age a'r fhe fume of ocwrrence He also confended fha'r flne primary evudence of proof of age Ie Ko‘rwari Regis'rer had nof been proved The school admission regisier merely showed 'thaf Dayma‘h Yadav who was noi’ examined by 'i'he prosecuhon had given The date of bir‘rh of The prosecu‘l'rix as 1.5.1985 while admitting her in The school on 4.7.89 i.e. arr The age of 4 years. He furTher coriTended ThaT The school admission regisTer Ex.P.2(A) revealed ThaT aT Sl.Nos.322, 323, 324 and 325 The daTe of birTh of Ku. Pumima, Ku. Tomeshwari, Sukhdas. and Ku. PhulmaTi was informed on The same day by DaymaTi lYadav while Ku Purnima alone was her daughTer. Learned counsel for The appellanTs argued ThaT The daTe of birTh as menTioned in Ex P 2(A) was -ri... d Wei noThing buT guess work of DaymaTi Vadav as was by The reporT of ossificaTion TesT Ex.P.31 and The eVIderice of Dr‘ Govmd Singh PVW 10 who sTaTed ThaT process of fusion of all The bones of The prosecuTrix had compleTed meaning Thereby ThoT The prosecuTrix was a girl obove 18 years of age’ 11. Learned counsel for The appellanTs furTher conTended ThaT The TesTimony of The prosecuTrix ThaT she was physically lifTed by The appellanTs-Vijay and KirTiwas and Taken To a disTance of one kilomeTer was highly exaggeraTed. He furTher referred To The TesTimony of prosecuTrix in para 12 ThaT upon hearing shouTs of JaishreeW / oufside ‘rhe heuse of 141a appellan‘f-Bhuvneshwur Tha‘r “bro'rher is coming", The appellan'rs mn away, indicu'fed 1'ha1’ fhe prosecufrix had gone To 'rhe house of The appeHnn+~Bhuvneshwar of her own vohfion. IT was also confended fho'l' fhe foe? 1'hu‘r Joishree P.W.6 did nof shout or raise on alarm and quie'rly s'rood oufside the house fill she sow her brofher also nego'rived 1he sfory of rape. Learned counsel for The oppellonfs also argued That The pl‘esence of smegma on the glans penis ofJhe appellants-Vijay and Bhuvneshwar on 14.7.2000 at around 10.00 PM. clearly negatived any sexual intercourse by the appellants-Vijay and Qhuvneshwar on The prosecutrix. So far as the report of F.5.L. Ex.P.22 was concerned, learned counsel for the appellanTs contended that Serological Examination was not done to confirm presence of The semen of the appellants-Vijay and Bhuvneshwar either on the vaginal slides or on The underwear of the prosecutrix. It was also argued that a perusal of the spot map prepared by Sub—Inspector Ratnesh Mishra' vide Ex.P,13 clearly revealed that the place of occurrence is nowhere in between the school and the house’of the prosecutrix. if the prosecutrix while going from her house marked “D" in the map to The school marked “C" had returned from half way down, she would have never taken The way to the burial ground. The place “A—1" where the appellants are alleged to have caught The prosecutrix is nowhere in the route to beitaken by the prosecuTrix for returning home. Her testimony that while she was returning home on the road near The burial ground, the appellants-Vijay and Bhuvneshwar were standing, on being comparedlwith the map Ex.P.13 shows that the prosecutrix had taken the route which went straight to the house of the appellant- Bhuvneshwar. So far as the appellant—Kirtiwas is concerned, it was argued that he was implicated falsely. In the Test identification report Ex.P.36 it was not stated as to how the J appellant r / was identified by The pmsecu‘h‘ix’ The 1es1'imony of Tahsildar J.R.Choumsia P.W.13 dso did no? show 'fha'r The prosecuh'ix was asked ‘ro iden‘rify The person who had liffed her- and taken her ‘ro 1he house of The appellanf—Bhuvneshwar. In sum and subsmnce, if was confended fhaf The evidence led by fhe prosecufion failed fa esfabiish fhe guih' of fhe appellanfs—Vijay and Bhuvneshwar for offences under secfion 363, 366, 376(2)(g) and 342 andraiso under Secfion 363 d 366 I.P.C. agains'r fhe appellanf—Kir'riwas. So far as the evidence of alibi led by ‘ We appellants in defence is concerned, learned counsel for fhe appellanfs did nof place any reliance Thereon’during argumen'i's. 125 On fhe ofher hand, Shri U.K.5.Chandel, learned Panel Lawyer while arguing in supporT of The impugned judgmenT conTended ThaT“ presence of semen and sperma‘r‘ozoa on fhe vaginal slides of The prosecuTrix as also on The underwear of The prosecuTrix and The appellanTs-Vijay and Bhuvneshwar was indicaTive of The facT ThaT The TesTimony of The prosecuTrix was reliable ThaT she‘ was subjected To sexual inTercourse by The appellanTs—Vijay and Bhuvneshwar one afTer The oTher. IT was furTher conTended ThaT There was noThing To disbelieve The TesTimony of Ku. Kamolini Sawal, HeadmisTress of Primary School, ShanTi Nagar P.W.1 and The enTry in school admission regisTer clearly esTablished ThaT The age of The prosecuTrix was less Than 16 years on The daTe of occurrence. IT was argued ThaT The evidence of The prosecuTrix P.W.5 was TrusTworThy and wholly eorroboraTed by Jaishree P.W.6, Pradeep P.W.7 and Hariram P.W.3. 13. Having heard The rival conTenTions, I have perused The record. The learned Trial Judge held ThaT The age of The prosecuTrix was below 16 years for The purposes SecTion 376 I.P.C. and below 18 years for The purposes of SecTion 363 I.P.C. Heavy reliance was placed by The learned Trial Judge upon The TesTimony of Ku. Kamolini Sawal, // / Headmisfress, Primary School, Shanfi Nagur P.W.1. This wifness was pas-red a? fhe Primary School Sham‘i Nagar as Headmisfress on 25.31992. She produced +112 school admission regisfer Ex.P.1(A) and The regis'fer ccnmining fhe informufion given by fhe parent rekrring f0 The du‘re of bir'rh of fhe child who was 1'0 be admi‘f‘l’ed in fhe school. A perusal of Ex.P.2(A) clearly shows 'rha‘r on 4.7.1989 Dayma'l'l Yoduv, lhe mm‘her of fhe prosecu'l'ri» had informed The dale of bir‘l’h of ‘lhe prosecu'l'rix 'l'o be 1.5.85 wi‘lhou‘l producing any documen‘l To sil’b‘sfan‘l'iafe lhe same. I'l' also appears fhat on fhe same day Dayma‘l’i Yadav had admi‘H‘ed Ku. Tomeswarl, Sukhdas and Ku. Phoolma'ri in 'rhe schoial and hadalso informed Their date of birfh as 3.5.85, 12.4.83 and 15.12.80. L4. I? is sewed law fhaf The primary evidence relai'ing ‘i'o fhe proof of “the date of bir'lh is The informa‘iion given by fhe paren‘rs offer The birth of fhe child fa The KoTwar in The village. No efforTs were made To ascerTain The daTe of bir'l'h of The prosecuTrix from The KoTwari regisTer or To produce iT in The CourT. Ku. Kamoiini Sawal P.W.1=sTaTed ThaT in boTh regisTers There was no declaraTion by The parenT reiaTing To The daTe of birTh of The child alThough such declaraTion is Taken from The parenT aT The Time of admission of The child. IT is Thus clear ThaT The primary evidence relaTing To proof of age has noT been produced by The prosecuTion To esTablish The age of The prosecuTrix and The enTry in The school admission regisTer showing daTe of birTh of The prosecuTrix as 1.5.85 was noThing buT a mere esTimaTion or guess work of The moTher of The prosecuTrix because while admiTTing 4 children of differenT parenTage in school on ThaT day she gave ouT Their daTe of birTh. Pradeep P.W.7, broTher of The prosecuTrix sTaTed ThaT he was aged 18 years and The prosecuTrix was Two years younger @ To him which also renders The em‘ry in fhe schoo! regis'l'er Ex.P.1(A) wholly unreliable. 15. The fesfimony of Dr. Gavind Singh P.W.1O and fhe ossificafion » fesf reporf Ex.P.31 clearly shows fhaf fusion of all bones of The arosecufrix had faken place. In fhe opinion of Dr. Govind Singh, fhe age of fhe prosecufrix was be'rween 15 To 19 years. If is se‘Hled law 1-haf fhe legally permissible maligin of error of fwo years on ei'rher side has 1'0 be faken info considerafion while considering The V" ossificafion fesf report The medical examinafion reporf Ex.P.35 of fhe grosecufrix proved by Dr. Smf. S. Pandey P.W.11 also shows That fhe prosecufrix had an old vaginal fear and was fully habifual of sexual infercourse. In View of The above findings and The legally permissible margin of error of Two years on eiTher side, and in The absence of any primary evidence regarding proof of age of The prosecuTrix, iT cannoT be ruled ouT ThaT The age of The prosecuTrix on The daTe of occurrence was 18 years or above. 16. The prosecuTrix P.W.5 has sTaTe‘d ThaT aT abouT 10.00 AM. when she lefT wiTh her sisTer Jaishree P.W.6 for The school, iT sTarTed To rain. Finding loT of mud she decided againsT going To The school and was reTurning home‘ Near The burial ground she found ThaT The appellanTs Vijay and Bhuvneshwar were sTanding. As They wenT ahead, The appellanT-Bhuvneshwar came from behind and holding her hand gagged her mouTh. Vijay caughT hold of Jaishree and ThreaTened ThaT if They shouTed he would kill Them. AT ThaT poinT of Time, anoTher boy unknown To The girls (appellanT-KirTiwas) came and held her. '17, She furTher deposed ThaT while boTh The appellanTs- Bhuvneshwar and KirTiwas physically lifTed her, The appellanT-Vijay lifTed Jaishreeand-Took Them To The house of Bhuvneshwar siTuaTed @ 11 abouf one kilomefer away. Affer Taking her fhere, +he appellant Kirfiwas wenf away from There. Nowhere in fhe 1es1’imony af The prosecu'h'ix or Jaishfee P.W.6 H appears fhu'f fhey had seen The appeIImT-Kirfiwas sfanding with fhe appellan'l’s—Vijay and Bhuvneshwar near- The burial ground. From where 1‘he appelkm‘r-Kirfiwas came and far wha1 purpose remains a mysfery which couid no‘r be unfclded by The prosecufion. The fesfimarh'l of fhe prosecufrix P.W‘5 and Ku. Jaiéhree P.W.6 dearly shows fha‘l’ 'l'he appellan'l-Kir‘l'iwas did no‘l even eh'l’er lhe‘house of Bhuvneshwar. Ku. JaishreeyP.W.6 has slated Tha‘l’ affer£ faking her and 1’he prosecufrix ou'l'side fhe house of Bhuvneshwar, all The Three appellanTs lefT Them and while The appellanTs-Bhuvneshwar and Vijay Took The prosecuTrix inside)The Third boy Le. The appellanT—KirTiwas wenT away. Since iT is noT shawn ThaT The appellanT-KirTiwas was sTanding wiTh The appellanTs—Vijay and Bhuvneshwar on The road near The burial grannd, The parTicipaTion of KirTiwas in The alleged crime appears To be exTremely doubTful and noT in consonance wiTh naTural human conducT because iT is noT alleged ThaT he made any efforT eiTher To ouTrage The modesTy of Jaish ree or The prosecuTrix. 18. ProsecuTrix P.W.5 has in cross-examinaTion paragraph 9 sTaTed ThaT, The appellanTs-Vijay and Bhuvneshwar each commiTTed rape Thrice on her. In paragraph 9 she has sTaTed ThaT afTer Taking her inside The house, Bhuvneshwar had undressed her and ThereafTer making her lie on The coT and afTer gagging her mouTh wiTh a handkerchief Bhuvneshwar commiTTed rape on her. She did noT sTaTe ThaT while Th'e appellanT-Bhuvneshwar was undressing her or while he was undressing himself she had shouTed. The prosecuTrix did noT menTion abouT The role played by The appellanT-Vijay during The sexual acT by The appellanT-Bhuyneshwar, Similarly, The prosecuTrix has 12 @ sm‘m‘ed Thd when Vijay was commimng mp2 on her, appelian'r- Bhuvneshwar' was also inside fhe room. She admm’ed Tho? she had aHemp'fed To bh‘e and scrafch 1'he aphalhnfs and had offered sfiff resistance. Howzver, medicai evidence of Dr. Smt 5. Pandey does not show fhof 'I'here was any exfernal injury on fhe person of fhe prosecufrix. Nof oniy This, no injury wha'i'soever was found on 'i'he privafe parfs of fhe prosecufrix: Dr. Smf. 5. Pandey P‘W. 11 found an old. +ear in The hymen and opined fhai' she was fuily acousfomed 1'0 sexual iniercourse. The fesfimony of fhe prosecufrix fhaf she was ravished 'rhrice‘ one offer fhe ofher by each appellan‘i despi'i’e sfiff resisfance offered by her is Thus rendered unwor'rhy of credit 19. Ku. Jaishree P.W.6, a s‘iudeni' of ciass—Ti‘, has sfa'ted fha'i' the appeiionfs-Vijay and Bhuvneshwar had ieff her oufside fhe house of Bhuvneshwar. She has sfa’red +haf she did nof shouf fiii she saw fhe eider brofher of The prosecufrix come fha‘i way and upon hearing her shoui‘s) fhe appellanfs ViJay and Bhuvneshwar ran away The prosecu‘rrix has in para 12 of her fesfimony also admrH’ed This facf by sia'iing ihaf her sister Jaishree had loudly shou'ied “broi'her is coming" whereupon fhe appeilanfs—Vijay and Bhuvneshwar dressed and ran away. This conducf of Jaishree P.W.6 in noT raising an alarm Till she saw The elder brofher of fhe prosecufrix coming also creafes a serious den‘l' in 'l'he prosecufion si'ory because Jaishree P.W.6 was absolufely free oufside The house of appellanT—Bhuvneshwar and could have run To inform The villagers working in The nearby fields or aT The school in The PanchayaT Bhawan or aTleasT could have raised an alarm. The appellanT-KirTiwas was also noT wiTh her and had allegedly‘lefT immediaTely afTer The prosecuTrix was Taken inside The house by appellanTs—Vijay and Bhuvneshwar. @ 20. IT is also sfmnge to nofe +hcrr alfhough 1he prosecufrix is clieged 1'0 have been mken by the appeHanTs-Vijay and Bhuvneshwar inside The house of The appeilan'i—Bhuvneshwar, yef no famiiy member was presenf in fhe house. Appearance of Pradeep P.W.7, The elder broTher af The pmsecuTrix is aiso very dmmaTic. In paragraph 4 of his TesTimany, he sTaTed ThuT he heard The shouTs of Jaishree from a disTonce of abouT 100 feeT and'recognized her and immediaTely wenT To The house of Bhuvneshwar. However, according To Jaishree P.W.6 ar’‘idfThe prosecuTrix P.W.5 when The prosecuTrix came ouT of The house of appellanT-Bhuvneshwar) afTer dressi‘hg, oppeilanTs~Vijay and Bhuvheshwar were noT presenT There and had ran away. If The TesTimony of The prosecuTrix ThaT hearing The shouTs of Jaish ree The appeIlanTs had dressed and Then ran away is To be beiieved, Then Pradeep P’WJ wouid have definiTely seen The appeiianTs Vijay and Bhuvneshwar running away from The house while Jaishree P.W.6 was siTTing ouTside and shouTing. NoThing of This sorT happened 21. The conducT of Pradeep P.Wi7 upon reaching The spoT:is also mosT unnaTuml and does noT inspire confidence. As an elder broTher of The prosecuTrix if upon hearing shouTs of Jaishree he had immediaTely reached The spoT, he would have seen The appellanTs Vijay and Bhuvneshwar running away or if one of The appellanTs was inside The house would have grabbed him Then and There and would have raised all kinds of hue and cry and mighT also have Thrashed him. However, Jaishree P.W.6 sTaTed ThaT afTer The appellanTs ran away, The prosecuTrix came ouT of The house and Told Pradeep P.W.7 ThaT appellanTs-Bhuvneshwar and Vijay had caughT of her hand while she was sTruggling and upon hearing This,Pradeep asked Them To go home whereupon she reTurned home wiTh The prosecuTrix. The prosecuTrix also sTaTed in paragraph 3 ThaT afTer wearing her cloThes when she C‘ 14 came ou'r of fhe house, har bro‘ther' also arrived af the same fime and she informed Pradeep fhe en'h're sfor‘y whereupon Prudeep asked bum of Them To go home saying ThaT he would be following Them.