JUDGMENT : Rao, J. - The Appellant was, by a unanimous verdict of the jury, found guilty of the offences punishable under Sections 366 and 376, Indian Penal Code. The learned Sessions Judge, Cuttack-Dhenkanal, accepted the verdict of the jury holding that the verdict was not perverse or opposed to law and convicted, the Appellant Dusasan Padhan under the said sections and sentenced him to rigorous imprisonment for five years on each count, the sentences to run concurrently. 2. The Appellant was an employee of the Railway Watch and Ward Department at the Cuttack Railway Station under the supervision of the Assistant Inspector, Watch and Ward (P. W. 8). The prosecutrix (P. W. 1), was with her father-in-Law at Kodala, a village near Angul. Her husband (P. W. 3), was working in a flour mill at Cuttack. A few days before the day of occurrence which she intimated to her husband on receipt of which the husband went to Angul and brought her with him on 5-12-54 by Talcher Passenger which reached Cuttack at about 8 P.M. They purchased only one ticket and that too up to Hindol Road. That day happened also to be a 24 hours check day at Cuttack Railway Station by travelling Ticket Inspectors batch by batch. After alighting from the train, P. W. 3 left P. W. 1 near the water chamber close to the Inter Class Waiting Room and came out in the guise of purchasing Pan and Bidi. The Ticket Collector (P. W.10, caught him and as the Ticket Collector could not leave his post before the Khargpur- Waltair Passenger left the station at 11 P. M., he detained P. W. 3 in the T. T. 1 office room almost till 11-30 P.M. when he took down his address and charge-sheeted him u/s 113 of the Railways Act. Ext. 15 is the charge-sheet. It is the prosecution case that the duty hours of the Appellant were from 2 P.M. to 6 P.M. on the 5th afternoon and again from 2 A.M. to 6 A.M. which would be, according to the Gregorian Calendar, 6th December. His duty was to guard the parcel office near the Inter Class Waiting Room in front of which parcels from the trains were loaded and unloaded. His duty was to guard the parcel office near the Inter Class Waiting Room in front of which parcels from the trains were loaded and unloaded. He was provided with no railway quarters and so used to come to attend duty from his village Kandarpur, about 12 miles away from the Railway Station at about dusk and spend the night on the platform. Finding P. W. 1 alone near the Inter Class Waiting Room verandah, on the 'Pretext of escorting her to her husband's quarter near the Bhima Ice Factory within the Flour Mill premises, he took her beyond the platform to open space between the college and the Railway quarters and in the dark shade, under a banyan tree, raped her despite the resistance that she could offer and then brought her towards the station where, she insisted, she should be left. Before reaching the station platform, they met P. W. 9 whom the accused asked to leave P. W. 1 near the Inter Class Waiting Room but he refused. 3. After P. W. 3 was released from the T. T. l.'s office at 11-30 P.M., he searched for his wife and as he could not find her, he reported to the A. S. M. (P. W. 7, who made an entry in the diary. Before making this entry, P. W. 7 learnt by an enquiry from the temporary water an Lingaraj Barik who died after his evidence was recorded but before the sessions trial began, and sent a Chit to P. W.8 who was in charge of Watch and Ward, stating therein that the man on duty Watch and Ward in parcel office duty is alleged to have fled away with a woman whose husband was weeping at the platform" and that this should be enquired into and relief arranged. Meanwhile, the Sub-Inspector, G.R.P. Station (P. W. 12), the Investigating Officer in this case, heard of the abduction of the girl, came to the platform, met P. W. 3 and learnt from him of the missing of the prosecutrix from the platform, at which time the Appellant crossed the third Class travellers exit gate into the platform with the prosecutrix who hurried to her husband (P. W. 3) and clung herself to his arms weeping. The investigating Officer brought the couple along with the accused to the station where the prosecutrix lodged the F.I.R. at 1 A.M. Four hours later, at 5 A.M., the Investigating Officer seized from the person of the accused one Khaki half-pant, one striped underwear and one white handkerchief worn by him, as they had been soiled and wet at some places. P. W. 1 informed the Sub-Inspector that those were the clothes worn by the accused at the time he raped her. At the same time he also seized the wearing Sari of the prosecutrix (M.O.I.), that also had been soiled and wet. An hour later, at 6 A.M., the Investigating Officer seized one Khaki coloured overcoat, one woolen jersey, a pair of Khaki woolen patti, a Khaki shirt, one Khaki cap, one leather belt, a woolen muffler, a banian etc. belonging to the accused. At 4-30 A.M., a ticket from Meramundali to Hindol Road was seized from P. W.3. It is the prosecution case" that after that, the accused under arrest pointed out the place of occurrence to the Investigating Officer who got the spot map prepared. The Investigating Officer sent P. W. 1 at 11 A.M. and the accused at 1 P.M. respectively for medical examination. P. W. 1 was examined at 4-30 P.M. by P.W. 2, a lady Assistant Surgeon, who issued the injury certificate. The accused was examined by P. W. 4, the then Assistant to the Civil Surgeon at 4 P. M. The latter issued the injury certificate and took down some cuttings of suspected matted public hair of the accused. On chemical analysis, spermatozoa was discovered in the patches of the half-pant, the underwear as well as the matted hair cuttings and also in the Sari (M. O. I). 4. The accused pleaded not guilty and denied his presence at the railway station before 12.30 A.M. He stated that he lived In a rented quarter with his wife and came to the station at 12.30 A.M. on 6-12-54 being awakened by his wife to attend to his duty when he was arrested. He denied the overcoat as belonging to him. The ownership of the rest of the articles seized was admitted, but he stated that the articles seized at 6 A.M. had been kept by him in the Watch and Ward office wherefrom they were seized. He denied the overcoat as belonging to him. The ownership of the rest of the articles seized was admitted, but he stated that the articles seized at 6 A.M. had been kept by him in the Watch and Ward office wherefrom they were seized. He admitted that he wore the half pant and the underwear which were seized by the Sub-Inspector. He denied having led the Investigating Officer to the place of occurrence and seeing P. W.9 with whom, he alleged, he had some enmity. 5. Fourteen witnesses were examined for the prosecution and several documents were exhibited in this case. Ext. 16 is the F.I.R. made at the station by P. W. 1. In that P. W. 1, after narrating the story of her coming along with her husband by Talc her Passenger, stated that after 3 hours of waiting for her husband, the accused came to her and asked her as to why she was sitting there. She told him that her husband had made her to sit there and had gone away and that she would go when he would come. Then the accused giving her the name of her husband told her that he (her husband) resided near the Kamala Flour Mill in Rinehart and if she followed him, he would leave her there. She at first refused, but after the accused repeating that he knew her husband and asking her to go along with him, she believed his words and accompanied him. She stated that the accused took her from the main road to a dark lane and on being questioned where she was being taken, he answered that, that was the way to Ranihat. All on a sudden, the accused took her to a dark and lonely place and tightly caught hold of her hands. She shouted and asked him as to why he was behaving in that manner. Then the accused tightly pressed her mouth and threw her down. As she struggled, the accused pressed her throat by one hand and raised the cloth by help of his other hand from her legs. Then he left her throat, forcibly bifurcated her legs and took them over his thighs and placed them in between his waist and thighs. When she tried to raise herself, the accused pressed her hands against the floor and forcibly penetrated his penis into her vagina. Then he left her throat, forcibly bifurcated her legs and took them over his thighs and placed them in between his waist and thighs. When she tried to raise herself, the accused pressed her hands against the floor and forcibly penetrated his penis into her vagina. Three to four times he oscillated his body over her. It was too much painful to her. She cried loudly. His slimy semen was discharged and besmeared over her cloth and vagina. When he got up, she stood up and cried aloud. In her evidence, she stated that the sexual intercourse lasted for over an hour, and that the accused was wearing an overcoat usually worn by Police Constables. 6. Though the accused and the prosecutrix were taken to the Police Station immediately after the occurrence with their respective clothings on their bodies, no attempt was made to send them, as they were, for medical examination. On the other hand, the clothings found on their bodies were removed and kept in the Police Station. Though P. W. 1 and the accused were sent to the hospital the next day very late, yet the clothings were not sent to the hospital. They were sent about 15 days later to the Chemical Examiner. 7. P. W. 2, the lady Assistant Surgeon who examined P. W. 1 at 4.30 P.M. on 6-12-54, found two small abrasions of the size of a pea each on each side of the posterior 1/3 of labia minora and the result of her examination was noted in Ext. 1. To a subsequent requisition, she sent an additional report. In cross-examination, she stated that the two pea like injuries could not be the result of only sexual intercourse and that they could be caused by many other ways and could also be self-inflicted. She also stated that she did not find any bleeding and could find no signs of her being recently raped. There Were no scratches on the buttocks or back or any other part of the body of P. W. 1. According to Ext. 1, exterior genitalis were well developed. No stain was found anywhere on the body or over the Sari. There were no inflammatory lesions inside vagina and no injury was found over any part of the body. In Ext. According to Ext. 1, exterior genitalis were well developed. No stain was found anywhere on the body or over the Sari. There were no inflammatory lesions inside vagina and no injury was found over any part of the body. In Ext. 2, she stated, amongst other things, that the girl was of average strength and except the two small pea like injuries which could have been due to penetration, there was nothing in vagina which could give her a clue as to opine recent intercourse. 8. The accused was examined by P. W. 4, Assistant to the Civil Surgeon, Cuttack. He examined the accused at 4 P.M. on 6-12-1954 and found a scratch on his left lower eyelid 1/3" long with dried blood and an abrasion 1/3" long on the back to the right middle finger below the second joint. Both of them were simple and could have been caused by rubbing against some hard and rough substance. Injury No. 1 Could have been a nail mark and injury No. 2 could be due to biting. Ext. 3 is his injury report. He cut suspected pubic matted hair from the person of the accused, which, after examination by the Chemical Examiner, was found to contain spermatozoa. In cross-examination, he stated that the accused was wearing a pant where some suspected seminal status were present, and that he marked them off and signed. He stated that if a man was made to wear a pant which had sufficiently wet seminal stains, that might stain his pubic hair by coming into contact with the wet seminal stains. Though P. W.4 marked off the wet seminal stains on the pant worn by the accused at the time of the examination, it was not sent to the Chemical Examiner and it was not even produced in Court. The learned Counsel for the Appellant submits that the matting of the public hair of the accused might have been due to his being made to wear the pant after his clothing was removed, this pant having been supplied by some man of the Watch and Ward, on the bidding of the Sub-Inspector. 9. P. W. 1 is aged 18 years and was leading a married life for about 4 years prior to the occurrence. She was with her husband at Angul for 2 or 3 days before they came to Cuttack Railway Station on 5th night. 9. P. W. 1 is aged 18 years and was leading a married life for about 4 years prior to the occurrence. She was with her husband at Angul for 2 or 3 days before they came to Cuttack Railway Station on 5th night. According to the evidence of P. W. 1 and P. W. 7 (Assistant Station master), one Lingaraj Barik was the waterman P. W. 7 came to know of P. W. 1, being taken away from Lingaraj Barik and Bholanath Barik who was a temporary points-man. His diary mentioned these names. In Ext. 14, the chit sent by him to the Assistant Inspector, Watch and Ward, there is a categorical statement that the Watch and Ward on duty fled away with a woman and that relief should be arranged. The name of the Watch and Ward man on duty was not mentioned. Ext. 14 is therefore clear and definite that according to the reports received by the Assistant Station Master (P. W. 7, the man who fled away with P. W. 1 was the Watch and Ward on duty, at the time he sent the chit, that is about 12.50 A.M. It is admittedly the case of the prosecution that according to the roster, the Watch and Ward on duty at that particular hour was one Natabar Naik and this Natabar Naik was to examined by the prosecution. Bholanath Barik also was not examined by the prosecution. Though Lingaraj Barik was examined before the committing Magistrate, the Public Prosecutor did not tender his deposition in the Sessions Court, but it w tendered by the accused and according to the evidence of Lingaraj Barik in the committing court he stated that the General A.S.M. asked him as to who took away the wife of the informant, but he could not say who took her. The evidence of P. W.7, according to the learned Counsel for the Appellant, as well as Ext. 13 which go to show that the name of the accused was given as the person who fled away with P. W. 1, were an after-thought and ought not to be accepted. P. w. 5 supports the story of P. W. 1. He stated in his evidence that at about 1 A.M. his wife came and the accused was just behind her and that his wife told the entire occurrence there. P. w. 5 supports the story of P. W. 1. He stated in his evidence that at about 1 A.M. his wife came and the accused was just behind her and that his wife told the entire occurrence there. At that time he was speaking with the Sub Inspector and the Sub Inspector at once arrested the accused. But P. W. 12 stated in his evidence that when he came to know from the Assistant Sub Inspector about the abduction and he was going towards the Station Master's office to find out what the matter was, he found P. W. 3 weeping and' when he was talking to him, he found the accused and the girl coming towards the platform through the third class exit gate. According to him, the girl was also weeping and following the accused. He stated that P. W. 1 came running in joy towards her husband (P. W. 3) and told him something which he could not hear and that he brought all of them to the Police Station. 10. According to the evidence of the Investigating Officer, at the scene of occurrence there were gravels over which grass had grown and that he did not find any glass Churi pieces there, though P. W. 1 stated in her evidence that her glass Churis were broken at that place. 11. Mr. 10. According to the evidence of the Investigating Officer, at the scene of occurrence there were gravels over which grass had grown and that he did not find any glass Churi pieces there, though P. W. 1 stated in her evidence that her glass Churis were broken at that place. 11. Mr. M. Mohanty, the learned Counsel for the Appellant contends that on this evidence, the absence of any marks of violence on the person of P. W. l as well as on the person of the accused except two pea-like patches on the labia minora which, according to the medical evidence, could have been self-inflicted and a scratch tear the left lower eyelid and an abrasion on the finger of the accused which he explained were caused by the police Sub Inspector, the absence of any sign of recent sexual intercourse with reference to the vaginal examination of P. W. 1 coupled with the evidence of P. W. 1 that she resisted the rape; that she was thrown away and was caught hold of her throat being pressed and she having been thrown on the floor; and that she was a grown-up girl of 18 years and the intercourse lasted for one hour, the learned Sessions Judge ought to have directed the jury to return a verdict of not guilty and his failing to do so was serious non-direction amounting to legal misdirection. 12. Next he contends that there was no legal corroboration of the evidence of P. W. 1 with regard to the charge of abduction for the purpose of committing rape and of rape. He contends that the learned Sessions Judge ought to have directed the jury that on account of want of corroboration, they should return a verdict of not guilty. 13. In support of his contention that under the circumstances of this case the learned Sessions Judge ought to have charged the jury to return a verdict of not guilty, he relied upon a decision of a Full Bench of the Bombay High Court in the case of Emperor v. Mahadeo Tatya AIR 1942 Bom. 121. (F.B.). In that case there was no corroboration of the evidence of the complainant and consequently it was held that-if there was no corroboration, the Judge should direct the jury to return a verdict of not guilty. 121. (F.B.). In that case there was no corroboration of the evidence of the complainant and consequently it was held that-if there was no corroboration, the Judge should direct the jury to return a verdict of not guilty. Chief Justice Beaumont in the course of his judgment observes "In our opinion, in a case such as this, the Judge is bound to tell the jury that it is a rule of the Court, in cases of rape, not to act on the evidence of the complainant without some corroboration, and where there is no corroboration, as in this case, to direct them that their proper course is to return a verdict of not guilty." The learned Counsel also submits that the following omissions in the charge would also amount to legal misdirection. It is admittedly the prosecution case was that day was a 24, hours check-day at the Railway Station by the Ticket Inspectors. It is also admittedly the evidence of the prosecution witnesses that the Ticket Inspector was so busy that he could not charge-sheet P. W. 3 who got down from the Talcher Passenger, till 11-30 p.m. in the night. Under these circumstances, Mr. Mohanty submits that it would be impossible for P.W.l to leave the station between 11-30 P.M. and 12 accompanied by the abductor. In he usual course of things, they ought to have been detained at the gate. This point was not seated by the learned Sessions Judge in his charge to the jury. Next Mr. Mohanty submits that the circumstances present in this case may lead one to come to a conclusion that the sexual intercourse, if time, between P. W: 1 accused P. W. 3 might have been with the consent of P. W. 1. The absence of marks of olefins on the bodies of either except two scratches on the accused which were caused by the Investigating Officer when removing his clothes and two pea-like patches on P. W. 1 which might have been self-inflicted coupled with the circumstances that P. W. 1 was a young lady of 18 years and the absence of any marks of a struggle at the scene of occurrence as also the evidence that P. W. 1 accompanied the accused to the station after the alleged rape from the road indicate sexual intercourse with consent. That being so, the learned Counsel pointed out that the learned Sessions Judge ought to have specifically put to the jury that the circumstances of this case do make out also a Case of intercourse by consent and caught to have directed the jury that if they Came to the conclusion that it vas so, they ought to return a verdict of not guilty. On this aspect of the case, the learned Counsel for the Appellant cited before the learned Sessions Judge see decisions in the cases of Mahla Ram v. Emperor AIR 1924 Lah. 669 AIR 1944 245 (Nagpur), and Lala Sahu v. States 1955 C.L.T. 527. In the first case, the accused admitted sexual intercourse but pleaded that it was with her consent. Moti Sagar J. in course of his judgment held: The first and foremost circumstance that can be looked for in cases of this kind is the evidence of resistance which one would naturally expect from a woman unwilling to yield to a sexual intercourse forced upon her. Such a resistance may lead to the tearing of clothes, the infliction of personal injuries and even injuries on her private parts. In the present case there is absolutely no evidence on the recur of any struggle having taken place nor were marks of any injuries found on the person either of the complainant or of the accused. In these circumstances I am unable to hold that the accused had connection with the woman without her consent. In the second case, it was held by the Nagpur High Court that it was always desirable that the accused in a rape case should b medically examined as soon as possible. In this case it was admitted by the accused that he had sexual intercourse. The decision of the Full Bench Emperor v. Mahadeo Tatya AIR 192 Bom. 121 (F.B.) was quoted with approval, and the accused was acquitted on account of there being no independent corroborative evidence of the statement of the prosecutrix. In the third case, a Division Bench of this Court to which I was a party held: It is highly improbable, if not impossible, that with a fully matured girl, a boy of 22 years can have intercourse, against her resistance and without her consent and without suffering quite number of injuries on hi own person. In the third case, a Division Bench of this Court to which I was a party held: It is highly improbable, if not impossible, that with a fully matured girl, a boy of 22 years can have intercourse, against her resistance and without her consent and without suffering quite number of injuries on hi own person. The position gains much strength on account of the girl also suffering no external injury on her private parts and no injury on any other parts of her body. Under these Circumstances, it was held, that absence of consent was not proved. On, the strength of these three decisions, the learned Counsel contended before the learned Sessions Judge that the sexual intercourse in the instant case might have been with consent. In dealing with this contention and the citations made by him, the learned Sessions Judge simply observed. I may tell you that in all those cases the accused admitted that he had cohabitation with the prosecutrix unlike in the present case. From the circumstances in those cases it was held that the prosecutrix was a consenting party. In the present case also although the accused has not specifically admitted, that he had sexual intercourse with the prosecutrix, if from the circumstances; you are convinced that P. W. 1 was a consenting party, you cannot hold him guilty. Then the learned Sessions Judge placed before the jury the points on which the defence relied upon to infer the implied consent of the prosecutrix very fairly. But the learned Counsel for the Appellant contended that the passage quoted above from the charge put in inverted commas was liable to mislead the jury to distinguish those cases as being not applicable to the present case. To that extent, the learned Counsel submits that observation is a misdirection. 14. The learned Counsel also submits that in placing the evidence of P.W.9 as corroborative evidence of the story given by P. W. 1, the learned Sessions Judge did not state that the evidence as it stood, did not amount to corroboration. According to this witness, the accused was about 20 feet away from P. W. 1. 14. The learned Counsel also submits that in placing the evidence of P.W.9 as corroborative evidence of the story given by P. W. 1, the learned Sessions Judge did not state that the evidence as it stood, did not amount to corroboration. According to this witness, the accused was about 20 feet away from P. W. 1. When the accused asked P. W.9 to take her and leave her on the platform, P. W. 1 did not, as she ought to, tell P. W. 9 that she was raped by the accused, but on the other hand simply asked the accused to leave her on the platform as he brought her out. The learned Counsel submits that the learned Sessions Judge misdirected the jury in saying that the evidence of P. W. 9 corroborated the story of P. W. 1. 15. The learned Counsel further submits that the statement in the charge "The next piece of evidence corroborating the story of abduction is the undisputable circumstance that the prosecutrix was found absent at least between 12 P.M. to 9.45 A.M. from the platform. Somebody must have taken her beyond 1 the platform or she must have gone outside suo moto. She was weeping by the time she came to the platform. Her husband too was weeping while searching for her then, was a misdirection inasmuch as the absence of P. W. 1 on the platform and her weeping cannot amount to corroborative evidence as those statements do not connect the accused. In support of this connection, he relied upon a decision of the Supreme Court in the case of Rameshwar Vs. The State of Rajasthan. His Lordship Bose J. observed at 57: I turn next to the nature and extent of the corroboration required when it is not considered se to dispense with it. Here, again, the rules are lucidly expounded by Lord Reading in Baskerville's case (2). But to this extent the rules are clear. The State of Rajasthan. His Lordship Bose J. observed at 57: I turn next to the nature and extent of the corroboration required when it is not considered se to dispense with it. Here, again, the rules are lucidly expounded by Lord Reading in Baskerville's case (2). But to this extent the rules are clear. The second rule stated by His Lordship is: Secondly, the independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime: The two factors stated by the learned Sessions Judge as corroborative evidence with regard to abduction for purposes of rape, the absence of the woman from the platform and her weeping do not by themselves connect the accused with the crime. Consequently, in my opinion, that direction amounts to misdirection. Mr. A.K. Das appearing for the learned Government Advocate concedes fairly that these two facts do not amount to corroboration but contends that decision is n authority for the position that the evidence of the prosecutrix in the case of rape need not be corroborated. But in the instant case, there is a specific direction by the learned Sessions Judge that it is not the practice to convict on the sole testimony of the prosecutrix unless there is corroboration. It is on that direction that the verdict of the jury was based. 16. The last paragraph in the charge to the jury where the learned Sessions Judge summed up the case contained only the circumstances appearing against the accused. He did not in that summing up include the circumstances appearing in favour of the accused. This, according to the learned Counsel for the Appellant, is a non direction amounting to misdirection. In paragraph 16, the learned Sessions Judge stated: To sum up, these are the main circumstances against the accused, if you believe them. The prosecutrix was alone in the platform, while her husband had been detained in the T. T. l.'s office. The place where she was sitting is the place where the parcels are loaded and unloaded. That is the place where the accused works. The prosecutrix was alone in the platform, while her husband had been detained in the T. T. l.'s office. The place where she was sitting is the place where the parcels are loaded and unloaded. That is the place where the accused works. P. W. 3 made a report of the missing of the prosecutrix to the A.S.M. P. W. 9 found her coming with the accused. She was then weeping. P. W. 3 also was found weeping by the I. O. and the A. S. M. There were two injuries on the person of the accused regarding which he has given different explanations. There were two pea-like abrasions in the private parts of the prosecutrix which could be the result of sexual intercourse. Spermatozoa was discovered in her wearing Sari M. O. 1, and also in the wearing half-patty and the underwear and the matted pubic hair of the accused. A concocted story of this nature is likely to ruin the future of the lady. The parties are strangers and there is no motive for a false story being foisted against the accused. I have already discussed these several circumstances stating to you in detail the conflicting probabilities in favour of the accused which 1 need not repeat here. As this paragraph is a paragraph summing up charge to the jury, in my opinion, it was incumbent upon the learned Sessions Judge to state in that paragraph also the circumstances such as the absence of any injuries evidencing her resistances, the absence, according to the medical evidence, of any signs of recent sexual intercourse, the probability that the sexual intercourse might have been with consent under the circumstances of the case, and the probability on account of the non-examination of Natabar and Bholanath Barik coupled with Ext. 14 that the person who abducted and committed rape might have been the Watch and Ward on duty and the case may be one of mistaken identity as the overcoat was not one worn by accused who was also not on duty, the circumstances that matting of the public hair of the accused might have been due to his being asked to wear a half pant brought by some watch and ward man at the bidding of the Investigating Officer which was admittedly get before the accused was asked to wear it and which according to P. w. 4 bore suspected marks of semen and which was not sent to the chemical examiner though he marked it and signed it that there were no signs of struggle at the scene of occurrence and that the whole area near the station was fully lighted throughout the night, that many people would be on the road throughout the night and that the scene of occurrence was in the midst of and near residential quarters and a dispensary. The absence of this aspect of the case in the penultimate paragraph of the charge to the jury is, in my opinion, a non-direction amounting to misdirection. 17. I am therefore of opinion that the contentions of the learned Counsel for the Appellant that the charge to the jury is vitiated by non directions and misdirection's pointed out by him are well founded. 18. But it is not enough, according to Section 423, clause (2) of the Code Criminal Procedure if the charge to the jury is vitiated by misdirections in order to interfere with the verdict of the jury, it must also be shown that the verdict was erroneous on that account. Clause (2) of Section 423 says: Nothing herein contained shall authorize the Court to alter or reverse the verdict of a jury unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him. In my opinion, the misdirections pointed out above were responsible for the verdict of guilty given by the jury. The jury gave an erroneous verdict on account of the misdirections. In my opinion, the misdirections pointed out above were responsible for the verdict of guilty given by the jury. The jury gave an erroneous verdict on account of the misdirections. Had the jury been told in clear terms that there are circumstances in the Case which go to show intercourse by consent or of the possibility of a mistaken identity of the abductor on the part of P. W. 1, and other circumstances disclosed in evidence in favour of the accused if those circumstances were believed, then the verdict of the jury would have been different. Consequently, in my opinion, the verdict of guilty returned by the jury is erroneous owing to misdirections by the learned Sessions Judge in his charge to the jury. 19. Under these circumstances, I would set aside the conviction and sentence passed on the Appellant by the judgment of the learned Sessions Judge. 20. I do not think, any useful purpose will be served by sending back the case for retrial. The evidence in the case, in my opinion, is not sufficient to prove the guilt against the accused beyond all reasonable doubt. 21. In the result, therefore, I would allow the appeal, set aside the conviction and sentence passed on him and direct that the Appellant be set at liberty forthwith. Das, J. 22. I agree. 23. Appeal allowed. Final Result : Allowed