JUDGMENT Sinha, J. - This is an appeal against a judgment of the learned Additional Sessions Judge of Budaun sentencing each of the two Appellants, u/s 376 of the Indian Penal Code, to rigorous imprisonment for two years, along with ten stripes. Angad Murao and Ganga Ram Chamar, aged thirty-five and eighteen respectively, were placed on their trial for an offence of tape committed on Mst. Radha, the wife of Beni, on March 14, 1945. Along with them v. as also a man named Kalyan Chamar, who stood charged for the abetment of the crime. On March 14, 1945 a little before night fall, Mst. Radha was at her husband's house in Mohalla Mirah Sarai. Kalyan accused went to her and told her that her husband was calling her to fetch fuel-wood. She declined to go, but on his assurance that he would accompany her, she went with him. Kalyan lives near her house and both were known to each other. Both also belonged to the same caste. He took her to a wheat field where Angad and Ganga Ram were sitting. The latter caught hold of her wrist and took her inside the wheat field. When she began to weep and cry. Ganga Ram threatened to kill her. He threw her on the ground and had sexual intercourse with her, without her consent and against her will. In the struggle she got an injury on her forehead. After Ganga Ram, Angad accused also committed rape on her. She was at that time wearing a lanhga which was besmeared with semen. When Ganga Ram and Angad were committing rape, Kalyan stood at the mend of the field. All the three ran away when Bhupal, Hazari and Kunwer Sen came on the field. She narrated to them all that had happened and then they brought her to her bouse, where she repeated the story to her relation, Mst. Jamuna Beni, her bus-band was not present at the time and came sometime after nightfall when the whole thing was mentioned to him. She was taken by him to the house of the zamindar, Wajid Ali, before whom the incident was again repeated. The latter, Radha and Bani went to the police station where they made a report at about 11-2/p.m. 2. The above, in brief, is the story for the prosecution. She was taken by him to the house of the zamindar, Wajid Ali, before whom the incident was again repeated. The latter, Radha and Bani went to the police station where they made a report at about 11-2/p.m. 2. The above, in brief, is the story for the prosecution. All the accused denied the charge and pleaded that they were implicated on account of enmity. Angad said that Beni, the husband of Radha, used to work at his labourer and that Bhupal who resented this had got him falsely implicated. This Bhupal, be it noted, was a distant uncle of Beni, the husband of Radha. Kalyan's case was that he was implicated because Bhupal had asked him to give evidence against Ganga Ram and Angad, which he declined to do. Ganga Ram and Kalyan, examined only one witness Tiloki. Angad produced no evidence. The learned Additional Sessions Judge found that the case had been proved as against Angad and Ganga Ram but not proved as against Kalyan, with the result that he acquitted the last named person and passed the sentences against the first two as mentioned above. Angad and Ganga Ram have come to this Court in appeal. 3. This case is marked by certain uncommon features. It is true that Radha has throughout maintained that Angad and Ganga Ram committed the crime and, Kalyan abetted it by keeping a watch all the time that it was being committed; but her husband. Bent, did not support her. The learned Additional Sessions Judge was faced with this difficulty, but he sought to get over it by holding that he had been won over by the defence. This theory may be possible, but does not seem to be probable. It was not a case where the accused are rich people. Ganga Ram is a young lad of eighteen and a chamar ; Argad is also a cultivator. It is difficult, in the first place, to believe that Beni would try to say anything in favour of the two Appellants if they had any hand in the dishonour of his wife. But assuming that be could be purchased, the Appellants are not the class of people who had the wherewithal to do so. It is difficult, in the first place, to believe that Beni would try to say anything in favour of the two Appellants if they had any hand in the dishonour of his wife. But assuming that be could be purchased, the Appellants are not the class of people who had the wherewithal to do so. No satisfactory explanation has been offered by the prosecution for the attitude of the husband and I am not prepared to dismiss the matter so summarily, as the learned Additional Sessions Judge has done by simply holding that he turned hostile. It may be that the girl was dishonoured, but it is equally possible that the real perpetrators of the crime are some other people or that the thing was done with her consent. 4. Barring the statement of Mst. Radha, herself, who has, as I have already said, maintained a consistent attitude, there are the statements of Jamuna and Bhupal. No weight could be attached to the evidence of the former, as she died before the defence had an opportunity of cross-examining her. Bhupal has gone the whole length with the prosecution, but, if the defence is true, he is the villain of the peace, the prime mover against the accused. He has not been able to successfully meet the charge that the relations between him and Kalyan were strained. One of the reasons which has weighed with me in receiving the evidence of this man with considerable caution, if not in actually discarding it, is that I have not felt convinced of the truth of the prosecution so far at least as Kalyan is concerned. He is a chamar, so is Beni and so is Ganga Ram. No reason has been assigned by the prosecution why and with what motive and for what gain this man should have played the dishonourable part ascribed to him by the prosecution. The learned Additional Sessions Judge was also not convinced of the truth of the case against this man and acquitted him. But he has, to my mind, not gone far enough. The failure of the prosecution as against this man mast have its reaction on the entire statement of Bhupal. It is difficult, therefore, to place any realianca on his statement when it fails in one of its most important particulars. 5. As regards Mst. Radha. But he has, to my mind, not gone far enough. The failure of the prosecution as against this man mast have its reaction on the entire statement of Bhupal. It is difficult, therefore, to place any realianca on his statement when it fails in one of its most important particulars. 5. As regards Mst. Radha. it is difficultto say if the statement made by her. is her own or is one inspired by Bhupal and his associates. In this state of dcubt it will not be safe to base the conviction entirely on her statement and her statement alone. 6. There is another circumstances which. has induced me the conclusion at which I have arrived. The incident happened in the town of Budaun, not far from the police station. The accused did not abscond. The cloth, which Mst. Radha was wearing, was chemically examined, but there was no medical examination of the accused. They, from the very beginning, denied the charge. It was the obvious duty of the prosecution to secure the medical examination of the accused. It would have yielded conclusive results. In Ram Kala v. K. E. 1945 AWR (H C.) 287 it was held by a bench of this Court of which I was a member, that medical examination could yield conclusive results, and the importance of such an examination was emphasised, It was held: It is the duty of the prosecution, if, according to the medical jurisprudence, medical examination was capable of yielding conclusive results, to ensure that examination within a period of time when conclusive results could be achived. 7. That was also a case of rape where the offence was of a more serious character, in that it was attended with murder. 8. The result, therefore, is that the evidence led by the prosecution is not enough to form the basis of conviction; the absence of medical examination renders it wholly insufficient. 9. I, therefore, allow the appeal and set aside the conviction and sentence. The accused, who are on bail, need not surrender.