The central legal point established in the judgment is the principle of 'benefit of doubt' in favor of the accused when the evidence is not conclusive and the prosecution's case lacks credibility.

JUDGMENT

Pradeep Nandrajog; C. J. - Charged for the offence of gang rape of the prosecutrix, vide impugned judgment dated 6.2.2015 the appellants have been convicted and sentenced to undergo RI for a period of 10 years and pay fine in sum of Rs. 5,000/-, in default to undergo RI for six months.

2. The first appellant has undergone a sentence of 5 years 11 months and 24 days as of 24.1.2019 and the second appellant has undergone RI for a period of 5 years 10 months and 21 days as of said date.

3. FIR Ex. P-1 was registered by Constable Ghuda Ram, PW 1 on 20.11.2011, as per which he was posted at Surajpole Police Chowki Pratapgarh as a Constable and was patrolling the area under the Police Chowki with Govind, PW-2. Around 3.30 at night when they crossed Bus Stand on motor cycle they heard the shrieks of woman. They reached the place from where the shrieks were emanating. They saw a man holding on to a woman and another man was lying on top of her. He was raping her. The man who had caught the lady ran away on seeing them. They apprehended the man who was raping the woman. He disclosed his name as Jagdish. He told that his accomplice was Heeralal. They chased the person who ran away and apprehended him. The woman who was being raped appeared not to be mentally stable.

4. Since the appellants were apprehended at the spot they were got medically examined. Reports Ex. P-13 and Ex. P-14 opined that both were capable of performing sex. The pants which they were wearing, were seized and sent to Forensic Science Laboratory for analysis. FSL report which is lying in the judicial file as un-exhibited document but is admissible in evidence, records semen detected on the pants which the two were wearing.

5. The prosecutrix was also sent for medical examination and as per report Ex. P-12 it was opined that she is around 17 years of age.

6. The medico-legal report Ex. P-11 dated 20.11.2011 of the prosecutrix shows no injury and opinion regarding sexual intercourse is recorded to be reserved after FSL report, for the reason no vaginal tear or any injury to the vulva region was noted. There was no injury on the person of the prosecutrix.

7. The vaginal smear of the prosecutrix was sent for examination and as per FSL report no semen could be detected on the vaginal smear.

8. The charge-sheet shows that PW-9, PW-10 and PW-11 were present at the Bus Stand where the appellants were apprehended by PW-1. All of them have turned hostile.

9. The prosecutrix examined as PW-8 has turned hostile. Her father, who appeared as PW-6 has also not supported the case of the prosecution.

10. Two Home Guards, PW-3 and PW-4 have also not supported the case of the prosecution because they deposed in Court that when they reached the place of crime they saw the appellants apprehended by the police.

11. PW-1 and PW-2 have supported the case of the prosecution and have deposed facts in sync with what stands recorded in the FIR Ex. P-1 lodged by PW-1.

12. I find that the Investigating Officer has not been examined in the instant case. The prosecutrix has turned hostile. Surprisingly, semen has been detected on the pants of both accused appellants, but as per the prosecution whereas Heeralal held the prosecutrix to pin her down, Jagdish raped her and thus presence of semen on the pant of Heeralal becomes mysterious.

13. The medico-legal report of the prosecutrix, as noted above, defers opinion of rape after FSL report was received, for the reason if there was complete penetration there would have been hymen tear of the prosecutrix and none was detected. No injury on the vulva was also detected. As noted above, the FSL report is to the effect that no semen was detected in the vaginal smear of the prosecutrix.

14. The prosecutrix having turned hostile and the alleged public witnesses not having supported the case of the prosecution, in my opinion conviction of the appellants on the testimony of PW-1 and PW-2 would not be sustainable. The appellants are entitled to the benefit of doubt.

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