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However, all the sentences were ordered to run concurrently. Prosecution story, in brief, is that prosecutrix, aged about 32 years, is the resident of Kirti Nagar, Ferozepur. In the year 1989, she was married with Sham Sunder and from this wedlock, she has two daughters and one son. One daughter is with her parents, second daughter is with her and the son is with her husband Sham Sunder. Ruldu Singh, r/o Goneana Road, Muktsar, was serving as Panchayat Secretary at Jalalabad and used to visit the house of the prosecutrix. Then relations of the prosecutrix with her husband became estranged. After leaving Sham Sunder, prosecutrix started living with Ruldu Singh at Muktsar as his wife and stayed at Muktsar for about 3-1/2 years. After the transfer of Ruldu Singh to Mamdot, prosecutrix and Ruldu Singh had shifted to Ferozepur City, where they stayed as husband and wife for about 5 years. From the loins of Ruldu Singh, prosecutrix has one daughter, aged about 7 years. About 3 months back, relations amongst the prosecutrix and Ruldu Singh became estranged. After leaving the prosecutrix, Ruldu Singh started residing with his wife at Muktsar. Prosecutrix and Ruldu Singh filed complaints against each other and the complaints are pending. From the last 3 months, Ruldu Singh did not visit the house of the prosecutrix. On the intervening night of 20/21.5.2005, prosecutrix along with her daughters was sleeping in the verandah. Suddenly at about 1.30 AM during night time, prosecutrix heard noise of opening of main gate. Electric light was switched on and in the light, Ruldu Singh and Surjit Singh, who were earlier known to the prosecutrix, were found present in the house. Ruldu Singh directed the prosecutrix to ask the children to sleep inside the room. As per direction of Ruldu Singh, prosecutrix directed the children to go inside the room to sleep. After that, Ruldu Singh had caught hold the prosecutrix and she was thrown on the quilt spread over the floor in the verandah. She was raped by Ruldu Singh against her wish by using condom. After that, Surjit Singh had raped the prosecutrix against her wish by using condom. After rape, prosecutrix had gone inside the bathroom. Occurrence was witnessed by the children. Surjit Singh had also outraged the modesty of Sonia, aged about 13 years, daughter of the prosecutrix. When Sonia raised alarm, then prosecutrix came out of the bathroom. Prosecutrix was directed not to raise alarm otherwise she was to be eliminated. Out of fear, prosecutrix remained inside her house. In the morning, Ruldu Singh and Surjit Singh had left the house of the prosecutrix. Then prosecutrix along with her daughter contacted Usha Chopra and had gone to lodge report. Near Namdev Chowk, Ferozepur, police party headed by ASI Surjit Singh had met the prosecutrix. Statement of the prosecutrix (Ex.PG) was recorded at about 7.30 AM on 21.5.2005. After making endorsement, statement was sent to the police station, on the basis of which, formal FIR was recorded.

Prosecutrix was produced before the doctor for medico legal examination.

IO had gone to the place of occurrence. Rough site plan with correct marginal notes was prepared. Used condoms were lifted from the spot and were made into a sealed parcel. Sealed parcel was taken into police possession vide separate memo attested by the witnesses. Empty dabbi of condoms was also taken into police possession after converting it into a sealed parcel, vide separate memo attested by the witnesses. Accused were arrested on 21.5.2005 and were produced before the doctor for medico legal examination. After completion of investigation, challan was presented in Court.

I have heard learned defence counsel for the appellants, learned State counsel and have gone through the evidence on the file.

Learned defence counsel for the appellants argued that Ruldu Singh was serving as Panchayat Secretary and was residing in the neighbourhood of the prosecutrix.

As per story, prosecutrix was married with Sham Sunder in the year 1989 and from this wedlock, she has three issues. Prosecutrix developed illicit relations with Ruldu Singh and for about 8-1/2 years stayed with him as his wife. From this wedlock, prosecutrix has one daughter, aged about 7 years. Prosecutrix started blackmailing Ruldu Singh. Then Ruldu Singh started residing with his legally wedded wife at Muktsar. Prosecutrix was compelling Ruldu Singh to stay with her. Complaints were sent by the prosecutrix against Ruldu Singh. Appellants had also filed complaints against the prosecutrix. Ex.D1, Ex.D2 and Ex.D3 are the copies of complaints filed by the appellants. Ex.D4 is the copy of the complaint filed by the prosecutrix. All the complaints were before the present occurrence. There was compromise and as per compromise, Ruldu Singh was to pay Rs.60,000/- to the prosecutrix but he failed to pay Rs.60,000/- to her. When prosecutrix was blackmailing Ruldu Singh, then complaint was sent by Surjit Singh, General Secretary, Dalit Sena, Punjab, and this fact is clear from the copy of complaint (Ex.D3). When Ruldu Singh failed to pay Rs.60,000/-, then appellants were falsely implicated in this case. According to the story, on the intervening night of 20/21.5.2005, appellants had gone to the house of the prosecutrix and by using condoms, they had raped her against her wish. Prosecutrix was medico legally examined but no external injury was noticed. Ex.PZ is the report of Chemical Examiner but no spermatozoa was seen. Used condoms were also taken into police possession and sent to the laboratory but no report of the laboratory on the file. In view of the report of laboratory (Ex.PZ), prosecution story inspires no confidence, particularly when prosecutrix had motive to implicate the appellants due to non-payment of Rs.60,000/-. Prosecutrix when appeared in Court, then admitted that both the parties filed complaints against each other. Ruldu Singh was insisting to get rid of her. One complaint was filed against Ruldu Singh on 4.12.2003 on the allegation that he stole Rs.10,000/-. Then stated that she cannot tell whether wife of Ruldu Singh had filed complaint or not. But admitted that there was a talk of Rs.60,000/-. Her signatures were obtained on the compromise. House with her was taken on rent by Ruldu Singh @ Rs.1000/- per month. For about 8 years, prosecutrix stayed with Ruldu Singh without divorce and there is one minor daughter, aged about 7 years, from the loins of Ruldu Singh. When wife of Ruldu Singh filed complaint against the prosecutrix, then Ruldu Singh was insisting to get rid of the prosecutrix but to pressurize Ruldu Singh to stay with the prosecutrix, story was concocted and if the prosecutrix was raped against her wish, then why spermatozoa was not noticed and report of laboratory was not produced in Court. After the occurrence, both the appellants stayed in the house of the prosecutrix. House was in the abadi. Raula was not raised. In the morning, appellants had left the house of the prosecutrix, then prosecutrix had contacted Usha Chopra. Ultimately, statement of the prosecutrix was recorded near Namdev Chowk but Usha Chopra was not produced in Court to state as to whether prosecutrix had contacted her or not. Prosecutrix and her daughter are very much interested in the success of this case. Evidence on the file was not properly scrutinized by the trial Court.

On 21.5.2005, prosecutrix was medico legally examined. Vaginal swabs were sent to the laboratory but report of laboratory (Ex.PZ) is to the effect that no spermatozoa was found. In case prosecutrix was raped against her wish by the appellants, then report should have been to the effect that spermatozoa was noticed.

After recording the statement of the prosecutrix, IO had gone to the spot. Used condoms were lifted from the spot and taken into police possession after making the same into sealed parcel. On return to the police station, case property was deposited with the Incharge of Malkhana. Ultimately, on 9.6.2005, sealed parcels were deposited in the laboratory but no report of the laboratory is on the file. If sealed parcel of used condom was deposited in the laboratory, then it was for the prosecution to explain where is the report of the laboratory. No case of the prosecution that report was not received. In case sealed parcel of used condoms had been deposited in the laboratory, then before presenting the challan or after presentation of challan, an effort should have been made by the prosecution to produce the report of the laboratory or explain where the sealed parcel had gone.