P.K. Musahary, J

(1) Beyond what is defined under the penal code, one has to be alive with the universally accepted observations made at times by the Apex Court that rape is an obnoxious act of highest order against the entire society, a dehumanizing act against basic human and fundamental rights; for a women is ravished against her will per force, fear or fraud causing not only physical scar but also a deep sense of deathless shame pushing her to physiological and emotional crisis with added sufferance from social victimization or ostracism. We are reminded to deal with such a heinous crime in a light manner would be an affront to the society. Here it is a rape case.

(2) And these criminal appeals have been preferred by the appellants against the judgment and order dated 28. 06. 2007, passed by the learned Additional Sessions Judge, FTC, Basar, in BSR/sess. Case No. 199/2002 convicting Sri Lukba Rime, Appellant in Criminal Appeal No. 01 (AP) 2008 under Section 376 IPC and sentencing him to undergo imprisonment for a period of 7 years with fine of Rs. 5000/- and in default, to undergo further R. I. for 6 months; convicting Sri Dakto Siram, Appellant in Criminal Appeal No. 07 (AP) 2007 and Sri Tapok Talom, Appellant in Criminal Appeal No. 05 (AP) 2007 under Section 376 IPC and sentencing them to undergo imprisonment for a period of 10 years with fine of Rs. 5000/- each and in default, to undergo further R. I. for 6 months and convicting all the appellants namely, Sri Lubka Rime, Sri Dakto Siram and Sri Tapok Talom under Section 366 IPC and sentencing them imprisonment for a period of 6 years each with file of Rs. 3000/- each and in default, to undergo further R. I. for 3 months.

(3) The prosecution story, in brief, is that on 13. 4. 1997, around 5. 00 P. M. , the informant girls, namely, Miss Ipe Doke, Miss Hende Doke and Miss Jummi Doke were enticed by Sri Gumto Loyi, Dakto Siram, Tapok Talom and Lukba Rime by offering a lift in auto-rickshaw to drop them at their village, kidnapped and later raped by them at a place between Along View Point and Nigmoi turning point. The victim girls recovered a key of one of the autorickshaws left at the spot by one of the accused-persons. The victim girls lodged a written FIR on 21. 4. 1997, on the basis of which, a crime being Along P. S. Case No. 27 of 1997 was registered under Sections 342, 366, 376, 34 IPC. The officer-in-charge of the said police station endorsed the case to himself for investigation.

During the course of investigation, he visited the place of occurrence, drew the rough sketch-map of the place of occurrence and also seized the undergarments, slipper and earring of the victim girls recovered from the spot. Two autorickshaws bearing registration No. AR-08-2215 and AR-03-2138, along with the documents, were also seized. The victim girls were forwarded to the district hospital, Along for medical examination. After medical examination, the I. O. collected the medical report. All the four accused persons were arrested and the Magistrate recorded the statement of the accused persons under Section 164 Cr. P. C. One of the accused persons, namely, Sri Gumto Loyi confessed his guilt and his statement was also recorded by the said Magistrate. On completion of the investigation, the I. O. submitted charge-sheet against all the accused persons under Sections 342, 366, 376, 34 IPC. The Magistrate, First Class, Along, by an order dated 8. 7. 1997, committed the case to the court of Sessions, Along, for trial and disposal. On consideration of the charges, the learned Court of Session framed charge against all the accused persons under Sections 342, 366, 376, 34 IPC. The charges being read over and explained, the accused persons pleaded not guilty and claimed to stand trial. In order to establish the charge, the prosecution examined as many as 13 witnesses including the victim girls. The accused persons examined themselves as DWs without producing any other witness in their defence.

(4) Heard Mr. J. M. Choudhury, learned Senior Counsel for the appellant in Criminal Appeal No. 01 (AP) 2008, Mr. T. Michi, learned counsel for the appellant in Criminal Appeal No. 05 (AP) 2007 and Mr. T. Siram, learned counsel for the appellant in Criminal Appeal No. 07 (AP) 2007. Also heard Mr. N. Lowang, learned Public Prosecutor appearing on behalf of the State of Arunachal Pradesh.

(5) Mr. J. M. Choudhury, learned Sr. Counsel for the appellant, Lukba Rime, submits that although Lubka Rime was named as an accused in the FIR dated 21. 4. 1997 lodged by the victim girls, none of them has stated against him in the statement made under Section 164 of the Cr. P. C before the Magistrate and also in their oral evidence before the trial court. Mr. Choudhury has taken us through the evidence of PW-1, PW-2 and PW-3, all victim girls, who have stated that the appellant, Lukba Rime did not commit rape on any of them. In her deposition of PW-1, Miss Ipe Doke stated that she was raped by Sri Gumto and in her cross-examination, she categorically stated as follows:-

"i did not see the other victim girls being raped, I asked the other victim girls but they did not state anything. We were 3 girls and there were 4 boys. Lukba Rime did not commit any rape, as told by Jumyi. It is not a fact that Jumyi did not tell me that Lukba Rime did not commit any rape. "

(6) Similarly, PW-2, Miss Jumyi Doke stated in her deposition that she was forcibly taken into jungle by Sri Tapok Talom, and raped by him. According to her, accused Tapok Talom, asked Lukba to have sexual intercourse with her but Lukba did not do so.

(7) As per deposition of the other victim girl, Miss Hende Doke, PW-3, she was taken into jungle by Dakto Siram and raped by him near the Nullah. According to her, victim girl, Ipe Doke, was taken into jungle by Gumto Loyi while Jumyi was taken into jungle by Tapok Talom and were raped by them. In her cross-examination also, she categorically stated as follows:-

"dakto forcibly caught me by the hand, and despite my resistance pulled me out towards the jungle. I am not aware how much time this took. After some time, I do not recall how much, I was raped by Dakto. I also do not know how much time was taken by him in this act. Except of panties, my other wearing apparel were not torn, but I do not know how it was torn. The said garment was not seized. "

(8) There is no whisper by any of the victims that the appellant, Lukba Rime, raped any of them or attributed to commission of rape. Mr. Choudhury, learned Sr. Counsel submits that as per medical report, the victim girls may not be above 16 years of age but they are quite grownup who are in a position to make statement or depose as to what happened on the day of occurrence and who actually committed rape on them. According to Mr. Choudhury, it is the established law that in a rape case the statement of the victim girl is to be given more importance and priority and the conviction can be ordered on the basis of testimony of the prosecutrix without seeking any corroboration, if the evidence of the prosecutrix is found to be cogent, convincing and reliable. In this case, according to Mr. Choudhury, all the victim girls stated consistently and corroboratedly that the appellant, Lukba Rime, did not commit rape on any of them and he rather refused to act upon the invitation of accused Tapok Talom. On the basis of such cogent and reliable evidence, the appellant, Lukba Rime is not liable to be convicted and as such, the conviction and sentence as imposed by the learned trial court, as against the appellant, Lukba Rime, is liable to be set aside.

(9) Mr. T. Michi, learned counsel appearing for the appellant, Tapok Talom, submits that evidence of PW-1, PW-2 and PW-3 victim girls, having not been corroborated, have been rendered unreliable and unbelievable and no conviction can be recorded on the basis of such evidence. First of all, according to Mr. Michi, the FIR was lodged on 21. 4. 1997 i. e. after seven days from the date of occurrence on 13. 4. 1997. The explanation given by the informant victim girls is that they did not know the name and address of the accused persons who committed rape on them and they could file the FIR only after they collected the name and address of the accused persons. According to Mr. T. Michi, it is not at all believable because they did not tell anything about the incident of rape to their parents/guardian or any relative or friend. Taking us through the evidence of PW-1, PW-2 and PW-3, Mr. Michi, learned counsel, submits that the informant victims voluntarily boarded the autorickshaw of the accused persons and they have been willingly going around from one place to another without making any objection because they knew the accused persons from before. He submits that this is not a case of enticement, kidnapping or rape and if any sexual intercourse took place, the same was by consent and the said girls being contenting parties no charge of rape can be brought against the accused appellants. Mr. Michi further submits the case being one of sexual intercourse on mutual consent and the prosecution having failed to prove the charge of commission of rape, the learned trial court committed serious error in convicting the appellant, Tapok Talom and the same is liable to be set aside.

(10) There is no representation for Sri Dakto Siram, appellant in Criminal Appeal No. 07 (AP) 2007. No appeal has been filed by the accused/convict, Sri Gumto Loyi, who has been convicted for committing rape on one of the victim girls, Miss Ipe Doke. The conviction and sentence of the appellants are based on the oral evidence of the prosecutrix and also the circumstantial evidence, which are required to be examined and appreciated. The evidence of prosecutrix are required to be examined as to whether they are so cogent, trustworthy and reliable taking into account the attending circumstances and the probability factor.

(11) First of all, it may be noted that all the victim girls, examined as PW-1, PW-2 and PW-3, as per their evidence, hail from the same village namely, Doke, Along. The common story narrated in their deposition is that on 13. 4. 1997, they came from their village to Along. From Along, they wanted to go to Bene to see their sister/relative and while they were waiting for the Bus at Along Bazar, one of the accused, namely, Sri Gumto Loyi, an auto-rickshaw driver came to them and offered a lift to Bene and they reluctantly accepted the lift. The accused Dakto Siram also accompanied them in the said autorickshaw. At the instance of the girls, the autorickshaw was stopped at Bene for a while. The said girls went to see their sister/relative but as she was not at home, they returned to the waiting auto-rickshaw. Then, they returned to Along Bazar by the same autorickshaw. After reaching Along Bazar, accused Dakto wanted to show the girls a newly constructed bridge at Patum. The victim girls reluctantly accompanied the accused to Patum Bridge. They came back to Along from Patum bridge along with the accused, Gumto Loyi and Dakto Siram, who told the girls that as they are going to Basar, they would drop the said girls at Doke on the way. They stopped for a while to drink water near the mission school on the way to Basar and while they were drinking water, another autorickshaw came there and it also stopped for a while. The accused-persons had a talk amongst themselves. Thereafter, both auto-rickshaws proceeded together and stopped near Nigmoi where accused Gumto Loyi, Tapok Talom and Dakto Siram forcibly pulled the victim girls into the jungle and committed rape on them. The accused, Lukba Rime did not participate in the act of ravishment of the said girls. While they were being raped by the accused persons, some people from the nearby place came. Then the accused persons fled away. The victim girls being afraid took shelter in a field shed or what is locally called "kheti-ghar" in the jungle where they spent the night therein. They returned to their respective houses in the next early morning. They did not disclose the incident to anybody even to their parents or relatives, because they did not know the names of the accused-persons. They lodged a joint written FIR after a week of the incident.

(12) In the FIR lodged on 21. 4. 1997, the delay in lodging the same after seven days of the occurrence has been explained. As stated therein "they did not know their names" and "address" of the accused persons. They have maintained the same explanation in their disposition also. On perusal of the evidence, it is found that PW-1, Miss Ipe Doke, did not say anything as to how and when she came to know the names and address of the accused persons, particularly, the name of the accused, Sri Gumto Loyi who committed rape on her. PW-2, Miss Jumyi Doke did not say anything as to how and when she came to know the names and address of the accused persons, at least the name of the perpetrator, Sri Tapok Talom, PW-3, Miss Hende Doke, however, deposed that she "came to know the name of the accused from Sri Nyali Bagra and Bato" but it is not stated by her as to how the said persons came to know about the involvement of the accused persons and when the identity of the accused persons was disclosed to her, and more importantly, when and how many days after the incident.

(13) The prosecution examined one of the said persons, Sri Nyali Bagra, as PW 7, from whom PW-3 claimed to have come to know about the name of the accused-person. This PW-7 being a Zilla Parishad Member (ZPM), is a leading person of the locality. As per his evidence, being informed by an autorickshaw driver, he rushed to the spot on the day of incident where he found an autorickshaw standing without any person there was none inside it. Hearing "some shouting" from inside the jungle and with a view to draw the attention of the persons inside the jungle from where the shouting was heard, he struck and hit on the body of the autorickshaw standing on the road and on "hearing the hitting sound of the auto, a youth came out from the jungle near the auto" and asked him as to why he was hitting the auto-rickshaw. Giving his own identity, PW-7, warned the youth not to commit wrongful activities in the jungle or elsewhere. There was some exchange of words between the said youth and PW-7 and when he advanced towards the said youth, he ran away inside the jungle. According to PW-7, "it was a dark night" and he could not identify the said person and in the meantime, some co-villagers also come to the spot but they could not trace-out the boys. After three days of the incident, the police called PW-7 to Along Police Station and informed him about the incident of sexual harassment at his place and asked if he knew anything about the same whereupon he informed the police about the said incident. He also told the police that since it was a dark night, he could not identify any of the persons involved in the said incident but after some days or months later, he some how came to learn from some body that the persons involved were already arrested but at that time he was at Itanagar and he could not know who were the persons arrested in connection with the aforesaid incident.

(14) According to PW-3, the FIR was scribed by one Mrs. Yomcha, who is the Secretary of the Women Welfare Organization. The other witness, PW-1, stated in her deposition that she cannot recollect who wrote the FIR and she had forgotten the place where she put her signature thereon. Similarly, PW-2 also deposed that she knew who wrote the FIR and what was written therein. The scribe of the said FIR has not been examined by the prosecution. PW-4, Sri Doi Doke, father of Miss Ipe Doke (PW-1), was examined by the prosecution but he stated that he did not know who wrote the FIR. He however, stated that no member of Women Welfare Organization accompanied him when he went to Along Police Station. He further stated that he did not know any girl named Hende Doke and Jumyi Doke of his village. PW-5, Sri Tohen Doke, fathar of the victim girl, Hende Doke (PW-3), was examined by the prosecution. According to him, he came to the Police Station and told the police that "on 18. 4. 1997 sons of Shri Daba Siram came to me and told me that your girl was raped by some auto puller while she was returning to her village that day". According to him, Sri Nyali Bagra (PW-7), also came to the police station but he did not say anything about the FIR, being scribed by Mrs. Yomcha. PW-6, Sri Kijum Doke, father of victim girl, Jumyi Doke (PW-2), deposed that Sri Nyali Bagra (PW-7) informed him about the "misdeed" done by some boys with her daughter. Her daughter did not tell him about the incident and he did not scold her daughter. He did not say anything about the lodging of FIR or being called by police to Police Station. According to PW-12, the Officer-in-charge of Along Police Station and I. O. of the case, he received a complaint on 21. 4. 1997 in the police station from three girls of Pusi Doke village. He again stated that sometime before the receipt of the complaint, he got a telephonic message from a Doctor of the District Hospital, Along about a case of assaultation and he rushed to the hospital where he found accused, Dakto Siram being attended by a Doctor and on inquiry, he came to know from Dakto Siram that some people of Nigmoi village assaulted him. The Officer-in-charge then proceeded to Nigmoi and visited the place of occurrence whereupon he found some pieces of broken glass in the bushes and on further search found an underwear of brown colour, one piece of slipper (lady chappal) and an ear-ring of golden colour, which were seized by him.

(15) The question is whether the delay of seven days in lodging the FIR can be condoned on the ground stated in the FIR itself read with the above evidence. The FIR can be lodged by anybody who has come to know about a particular incident and no details are required to be furnished. The victim girls had been moving around in the autorickshaw of the accused persons and in fact knew the persons by face, if not by names. They have recovered the key of one of the autorickshaws and they could have shown it to their parents/guardiants and presented the same to the local police and that would have led the police to reach the culprits. It may also be noted that the victim girls are not totally illiterate. They put their signatures on the FIR, as they had signed the FIR and could have read and memorized the registration number of the autorickshaws. Even if it was not possible on their part, they could have informed the police through their parents/guardians or any friends at least on the next day. They rather opted to wait for seven days to gather the names of the culprits. This is quite unnatural, unusual and unbelievable conduct on the part of the Prosecutrix. As has been pointed out earlier, the PW-7, who happened to visit the place during the course of occurrence but could not identify any of the culprits as it was a dark night at the time of alleged occurrence, categorically stated that he did not meet the victim girls and he came to the Police Station only when he was called by the Police of Along Police Station. More significant point to be noted is that the victim girls never disclosed to anybody about the fact of the incident of rape. It is true that in the case of sexual offence initially the victims may have hesitation to report the matter to the Police for fear affecting the family peace and reputation but at the same time, it is difficult to believe that they would not disclose to or discuss about the incident with their parents or relatives or any friends.

(16) Further, non-examination of scribe of the FIR who was the best person to give evidence as regard the discloser of identity of the accused-persons by the victim girls, creates a doubt on the veracity of the version of the informants that they got the FIR written and filed after knowing the identity of the accused-persons. The delay of one or two days in lodging the FIR may be bonafide, reasonable and justified. This is naturally in view of the social conditions prevailing in India where a victim of rape case has to think seriously before giving the information to the Police for fear of onslaught of social stigma that may haunt her for life. In the present case, the victim girls expressed no such fear. They were determined to lodge the FIR but for want of identity of the accused-persons they could lodge the FIR only after seven days. Such explanation, in our considered view is not at all acceptable and condonable.

(17) Moreover, the accepted position as regard the FIR is that it is only an information to the police to set the investigation in motion. It is for the investigating agency to inquire the matter in details and nab the culprits through the information collected from the witness or clues found. In this case, the recovery of key of one of the autorickshaws was a definite clue to reach or nab the culprits. The Apex Court in the case of Ramdas and Ors. Vs. State of Maharashtra, as reported in (2007) 2 SCC 170 held that mere delay in lodging the report may not by itself be fatal to the case of the prosecution but the delay has to be considered in the background of the facts and circumstances in each case and as a matter of appreciation of the evidence by the court of fact. In the aforesaid case, the FIR was lodged eight days after the alleged occurrence of rape. The explanation given by the victim girls on the delay in lodging the FIR is not found satisfactory because the statement made by the victims and their parents are found contradictory. In the present case also, we find totally contradictory position as the victim girls stated that they could know about the identity of the accused persons from the PW-7, whereas the said PW-7 categorically stated in his evidence that he could not identify the accused-persons due to darkness at the time when he visited the place of occurrence and that he had no occasion to meet any of the informants before lodging the FIR. This being the position, the explanation offered by the victims for delay in lodging the FIR, is found unacceptable by us, as being not natural and true.

(18) On probability factor the evidence on record would speak themselves. The victim girls were examined by a medical board consisted of 4 Doctors of District Hospital, Along, for determination of age of the girls. On the basis of the physical and radiological examination, the said Board recorded its opinion on the age of the girls as follows:

(i) Miss Ipe Doke; Around 17-18 years (vide Exh. P-3) (ii) Miss Hende Doke; Above 16 years but below 18 years (Vide Exh. P-4) (iii) Miss Jumyi Doke; Around 17-18 years (Vide Exh. P-5)

This shows that the girls were in the age group of 16 to 18 years and therefore, they were not just children who would have gone around, with the accused on being allegedly enticed, from one place to another in the auto-rickshaw of the accused for some hours, had they not been knowing, at least some of the accused persons. These girls although stated to have reluctantly accepted the offer of lift in the autorisckshaw, did not protest when they were being taken around and getting late for returning home. From the conduct of the girls it can easily be taken that the accused persons, at least some of them, were either known or well acquainted with them.

(19) The testimony of the victim girls is that while the first autorickshaw was taking them, they met another autorickshaw on the way and the accused persons had some conversations and thereafter 3 accused persons, excluding Lukba Rime, forcefully took the girls inside the jungle and raped them. While they were being raped, PW-7 along with another person arrived at the spot. One of the accused persons came out and had exchange of words with PW-7. Did the said accused persons immediately disappear in the jungle At that moment, some more villagers also arrived and they tried to find out the accused persons. According to the evidence of the victim girls, they did not come out and see the villagers rather they went away inside the jungle and took shelter in the "kheti-ghar" to spend the night therein. The question arises as to why the victim girls having come to know that some villagers have arrived at the spot, did not come out from the jungle and tell the villagers about the incident of rape, as they were in trouble and it was already dark. It is the natural conduct of a woman, more particularly when she is in such insecure situation, to look for help. Here in this case, the girls, if the allegation is taken as true, were raped in the jungle in the dark evening, yet did not even care to come out from the jungle for their rescue although they were not free from danger even after the accused left the place on arrival of the villagers. They had still fear in their minds of being caught by the rapists again after the departure of the villagers from the said place. The conduct of the victim girls is too unusual and unnatural to be believed by anybody.

(20) How come that 3 victim girls - after being reped, could spend the night in the "kheti-ghar", a temporary shed in the paddy field, so insecure for anybody, more particularly for the girls. There is no evidence on record that the aforesaid girls made any attempt to find out any house or family in the locality for their shelter for spending the night. There is a room for doubt that the accused persons and the girls might have assembled again in the said "kheti-ghar" and spent the night therein. In the next morning, according to testimony of PW-1, they searched for their belongings and found the key of one autorickshaw. According to PW-2, after they met in the said "kheti-ghar", they dressed up and their dresses were in order. She stated in her deposition that except underwear, PW-1 also dressed up. Similarly, Miss Jumyi Doke, PW-2, also properly dressed up. The other victim, PW-3, Miss Hende Doke stated in her deposition that next morning they came back to the roadside and found a key of the autorickshaw from the spot where the autorickshaw was parked. It appears that the victim girls, in spite of being raped and spending a horrible night in the "kheti-ghar", came to the roadside in the next morning, in a quite normal way and proceeded home in a bus. They remained calm without disclosing the incident of rape to anybody, even to their parents. They waited to know about the identity of the accused persons from PW-7 whom they never met until the police called him to the Along Police Station. The evidence of PW-7 belies the claim of the girls that they got the names/identity of the accused persons from him.

(21) The prosecutrix, Miss Ipe Doke was medically examined on 21. 4. 1997 at 2. 35 P. M. in the District Hospital at Along. The medical report, Exhibit P-12 says that there was no visible sign of injury on her person/body but there is a slight tear of hymen of right lateral wall at 7 Oclock position. The opinion of the medical officer is that she received a trauma at her hymen which is suggestive of recent sexual intercourse. The medical officer did not record his opinion as to how old the said tear. Is it an old tear of 2/3 days or 7 days and above. It is necessary to know because she was medically examined after 7 days from the date of alleged incident. The Doctors opinion, in our considered view, carries no value for coming to a conclusion that she had a sexual intercourse. The victim, Miss Hende Doke, PW-3 was examined by the doctor on 24. 4. 1997 at 1630 in the District Hospital at Along. She received no injury on her person inasmuch as the medical officer recorded his opinion like this; "after careful examination I am of the opinion that Miss Hende Doke is suggestive of habituation sexual intercourse", which means, according to medical officer, she was found habituated with sexual intercourse. Similarly, Miss Jumyi Doke, PW-2, was also medically examined on 24. 4. 1997 at 11. 00 A. M. in the said hospital. The Doctor found bruise "on left upper thigh an interior surface 4 cm below the inguinal line, the position of the bruise is oblique irregular margin measuring 3 cm x 2cm is size" and the hymen was found intact. After careful examination, the medical officer opined that Jumyi Doke "received simple injury which is sign of resistance in correlation to her history genitals examination shows normal appearance in a virgin". It may be noted that this girl was examined medically after 9 days from the date of alleged occurrence. There is no opinion of the medical officer as to how old was the injury which was found on her person. Such opinion of the medical officer, in our considered view, can lend no support to the prosecution to come to a conclusive finding that the aforesaid prosecutrix received the simple injury on her person at the time of resistance put by her while she was being raped. PW-13, Dr. Jomnya Ado deposed as follows:-

". . . . . . . . On internal examination I found almost all parts normal. . . . . . . . " On examination of the vagina "she appeared to be virgin from my examnation, I opined that the injury found in her person was simple in nature and but it was suggestive of having no sexual intercourse. . . . . . . . . . . . . . . . . . . "

In regard to Miss Hende Doke, the said witness, to a question put by the Court, answered" i found her to be habituated in sexual intercourse but the exact age of the sexual act could not be ascertained in my examination since she was examined after a lapse abour 14 days and that too she already got changed her cloths after bath. "

(22) The accused persons, as per the evidence PW-12, the I. O. of the case, were not forwarded to hospital for medical examination. According to him, the alleged incident took place 8 days back and by that time all the garments were changed by the accused. The other reason for not sending the accused for medical examination is that as per statement of the victims

"there was nothing to show that they inflicted any injury on the persons of accused during resistance being done by the victims and i. e. how I did not feel it necessary to send the accused persons to hospital for medical examination. "

According to Investigating Officer, PW-12, the FIR was lodged on 21. 4. 1997 at 13. 30 hrs. But before he received the complaint/fir, he got a telephonic message from a Doctor of the District Hospital, Along relating to an assaultation case. However, on receipt of the information, he rushed to the hospital where he found the accused Dakto Siram being attended by the doctor. On being inquired, the Dakto Siram told him that he was assaulted by the people of Nigmoi. Then, I. O. , along with police team visited the place of occurrence from where he found and seized some articles mentioned in the seizure list (Exh-P-6). Having failed to find any such person near the place of occurrence, he engaged his own source and only on 17. 4. 1997, he could gather that one Sri Gumto alias Tato Loyi took with him 3 girls in his autorickshaw and moved towards Bagra side on 13. 4. 1997. Then he proceeded to the house of the aforesaid accused Tato @ Gumto Loyi and arrested him on suspecion. According to I. O. , accused Gumto confessed his guilt and made statement before a Magistrate. The seized articles, particularly, one pantie brown in colour and the earring golden in colour were not sent for FSL examination. During investigation, the I. O. did not verify whether there was any "kheti-ghar" around the place of occurrence where the victims, after allegedly being raped, took shelter for the night. He did not even inquire from the local people whether any such "kheti-ghar" was in existence during the time of occurrence. It was important and vital to know about the same to ascertain the truthfulness of the statement/allegation made by the girls about taking shelter in the said "kheti-ghar" in a helpless condition. It was also necessary to ascertain whether the aforesaid "kheti-ghar" if it really existed at all, situated nearby any habitation of people. If the aforesaid "kheti-ghar" situated near the habitation, it was necessary to ascertain whether the girls, instead of spending the night therein at an insecure place, could have p approach any house or family for their shelter. A serious lapse is found in the investigation of the case in this regard inasmuch as, the discovery of existence of the "kheti-ghar" would have lent much support to the prosecution case. On the other hand, if on inquiry, such "kheti-ghar" was not found in existence, the creditability of the statement/allegation made by the victim girls that they took shelter therein would loose its credibility. If the existence of "kheti-ghar" was not found, the question of taking shelter by the victim girls after being raped allegedly, does not arise which may lead to presumption that the entire story of rape is false. The Investigating Officer, PW-12 in his evidence did not say anything whether he verified the existence of any "kheti-ghar" or "residence/house" nearby or around the place of occurrence and if there was any, what was the distance from the place of occurrence, which is also a serious lapse on the part of the I. O. It was necessary to find out and ascertain whether in the event of any occurrence like rape, the helpless girls could proceed to the nearby house instead of taking shelter in the "kheti-ghar" for their better security. The I. O. has not made any statement in this regard.

(23) From the aforesaid circumstantial evidence we do not find any evidence of such quality to be treated as reliable, cogent, credible and trustworthy so as to sustain the conviction and sentence as handed upon the appellants by the learned trial court. The Apex Court in a number of cases held that conviction in a case of rape can be based solely on the testimony of the prosecutrix, but it can be done so only in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which would cast a shadow of doubt over her veracity. If the evidence of the prosecutrix is of such quality it may be sufficient to sustain an order of conviction solely on the basis of her testimony. This is not enough and it must be shown that the evidence of the prosecutrix is of sterling quality. The prosecutrix must also show that she is not trying to conceal the fact from the court deviating from the case narrated in the FIR and her explanation about any inordinate delay in lodging the FIR is unsatisfactory. This was so held by the Apex Court in the case of Ramdas and Ors. Vs. State of Maharashtra, reported in (2007) 2 SCC 170. Similarly, it is so held in the case of Modan Gopal Kakad Vs. Naval Dubey, reported in AIR 1992 SCW 1480. The Apex Court further held that lack of oral corroboration to that of a prosecutrix does not come in the way of safe conviction being recorded provided the evidence of the victim does not suffer from any basic infirmity and that the probabilities factor does not render it unworthy of credence. In the present case, the prosecutrix lodged the written complaint/fir before the police after 7 days from the date of occurrence and the explanations provided therein are found not supported by the factual position and the probability factors as discussed above. The explanation offered by them in the FIR and the oral evidence are not supported by the evidence of PW-7 from whom the prosecutrix claimed to have collected the names of the accused persons and thereafter filed the said complaint/fir. The theory of spending overnight in the "kheti-ghar" after they were allegedly raped without trying to approach any habitation in the area, sounds unnatural, improbable and unacceptable.

(24) The question may arise as to why the girls simple in nature from tradition bound tribal society would falsely implicate the accused in the offence of rape at the cost of their own honour or being ostracized. We have already noted earlier that the girls lodged the FIR after 7 days of the date of occurrence and the FIR was written by one Mrs. Yomcha, Secretary of the Women Welfare Organization. PW-12, the I. O. , clearly deposed that the FIR was lodged at the instance of Mrs. Yomcha. The relevant portion of the testimony of the I. O. is quoted below:-

". . . . . . . . But since I could not trace out the victim girls and the victims and their parents were not cooperating the police investigating authority no case could be registered against the accused until 21. 4. 97 on that day the victim girls and their parents appeared before the DC and SP of W/siang District. At the instances of Women Welfare Association of W/siang District. Including the said society of the State of Arunachal Pradesh and the SP whereupon forwarded the complaint and the victim to me at the police station. Having received the same I registered a case against all the four (4) accused involved in the Crime. . . . . . "

But the prosecution, quite interestingly, did not produce Mrs. Yomcha as its witness before the learned trial court. There is no evidence of any animosity between the accused persons and the victims themselves or their parents; or between the accused persons and Mrs. Yomcha, Secretary of the Women Welfare Organization over any matter. It is in the evidence that the victim girls did not report the incident immediately after the incident to their parents or anybody but the victim girls reported the matter to the police at the instance of the aforesaid Mrs. Yomcha and she remained herself of aloof by not appearing before the learned trial court. The prosecution has no explanation why an important witness like Mrs. Yomcha has not been produced as witness to prove the case against the accused persons. In such circumstances, an adverse presumption can be drawn to the effect that for the sake of publicity and gaining cheap popularity amongst the people of the locality, the aforesaid Women Welfare activist took initiative for filing a false or exeggerated complaint by the aforesaid girls. All these factors cast a serious doubt on the prosecution case and we do entertain serious doubt that Mrs. Yomcha, scribed the FIR and got the same filed without intention other than bonafide.

(25) The prosecution relied upon the confessional statement of the accused, Gumto Loyi, DW-2 as recorded by PW-8, Sri B. Gadi, EAC (Judicial). The accused was brought before him by police. In cross-examination, the Magistrate deposed that he did not exactly remember

(i) whether the accused were put handcuff or not

(ii) whether the accused was willing to make confession

(iii) did not mention the time of reflection in the confessional statement and did not either remember as to how long time he was given for reflection and

(iv) did not remember the question put to him cautioning him that he was not bound to make the confession and if made, it would be used as evidence against him in due course of trial It is also deposed by him that there is no mention in the confessional statement that the accused confessed to have committed guilt. According to his deposition, he did not mention in the confessional statement of having read over the contents of the confessional statement to the accused. He again deposed that he cannot say whether he read over the contents of the confessional statement to the accused. This shows that the necessary formalities required to be observed before and after recording the confessional statement under Section 164 Cr. P. C. have not been observed. This being the position, the prosecution cannot take any assistance from the aforesaid confessional statement.

(26) Having tested the evidence of the victim girls we are not satisfied with the truthfulness of the story projected by the prosecution and we find it difficult to come to a conclusion that the case falls under the category of cases in which conviction can be ordered solely on the basis of the evidence of the prosecutrix. Here in this case we have found the evidence of the victim girls uncorroborated, unnatural, artificial and untrustworthy not to speak of being of sterling quality capable of inspiring the confidence of the court. That apart the probability factors are also unworthy of any credence. Taking into the entire facts and circumstances of the case, evidence on records and the probability factors, we are not convinced that the prosecution has been able to prove its case beyond reasonable doubt and as such, we are bound to interfere with the impugned judgment and order dated 28. 6. 2007 passed by the learned Additional Session Judge, Fast Track Court, Basar in BSR/sess No. 199/02 and set aside the same giving the accused appellants benefit of doubt. Accordingly, we set aside the impugned judgment and order aforesaid.

(27) The appeals stand allowed. The appellants be set at liberty forthwith, if they are not required in connection with any other cases.

(28) Before parting with the record of the case, it may be stated that convict Gumto Loyi, at it appears from the impugned judgment and order, was reportedly present before the learned trial Court during morning hours but absconded from the Court before the judgment convicting him was pronounced and, hence, the question of suspending the hearing of the sentence passed against him, as has been done by the learned trial Court, did not arise at all. There is nothing on record to show if the said accused Gumto Loyi has been arrested or not. In view of this position, he will not get the benefit of this judgment. The conviction in respect of accused Gumto Loyi is set aside and the matter is remanded to the learned trial Court for disposal of the case against him, in accordance with law, as and when he is arrested and produced before the learned trial Court.

(29) Send down the LCR to the court below.