JUDGMENT 1. - This is an appeal by Sukkram and Mohammed Saddiq against the judgment of the Additional Sessions Judge No. I, Jodhpur, dated 31st August, 1974, whereby the appellants have been convicted and sentenced as under;- (1) Sukhram: (1) under section 376, I.P.C., sentenced to five years rigorous imprisonment and a fine of Rs. 200/ - , and, in default of payment of fine to undergo simple imprisonment for 15 days more ; (2) under section 325, I.P.C. sentenced to four years rigorous imprisonment and a fine of Rs. 200/-, and in default of payment of fine to undergo simple, imprisonment for 15 days more ; and (iii) under section 323, I.P.C. sentenced to a fine of Rs. 100/-, and, in default of payment of fine to undergo simple imprisonment for one week. (2) Mohammed Saddiq (i) under section 376, I.P.C. sentenced to five years' rigorous imprisonment and a fine of Rs. 200/ - , and, in default of payment of fine to undergo simple imprisonment for 15 days more; (ii) under section 325, read with section 34, I.P.C. sentenced to four years rigorous imprisonment and a fine of Rs. 200/-, and, in default of payment of fine' to undergo simple imprisonment for 15 days more ; and (iii) under section 323, I.P.C. sentenced to a fine of Rs. 100/-, and, in default of payment of fine to undergo simple imprisonment for one week. Both these appellants were tried by the Additional Sessions Judge of the offence under section 376, 394 and 325 read with section 34, I.P.C. As regards the charge against them under section 394, I.P.C. the learned Additional Sessions Judge acquitted both the accused. 2. The learned counsel for the appellants has not challenged the correctness and validity of the conviction of the appellants under section 325, 323, and 325 read with section 34, I.P.C. 3. The relevant facts, so far as offence under section 376, I.P.C. is concerned are like this : The prosecutrix is Mst. Shanti. Her age at the time of commission of the offence has been estimated by the doctor as 19 years. She is a married woman and before the date of occurrence she had given birth to two children. The date: of occurrence is 12-3-73. At about 11, a.m., on that day, Mst. Shanti. Her age at the time of commission of the offence has been estimated by the doctor as 19 years. She is a married woman and before the date of occurrence she had given birth to two children. The date: of occurrence is 12-3-73. At about 11, a.m., on that day, Mst. Shanti along with her mother and children was passing in front of Um maid Hospital located in the city of Jodhpur. The two appellants met them near Geeta Bhawan. The appellants asked the mother of Mst. Shanti to accompany them to Sursagar as they would be employed at some wedding party. The two appellants, the mother of Mst. Shanti and her children, were carried in a auto-rikshaw. All of them alighted from the auto-rikshaw near Kutton-ka-Bara. The two appellants asked Mst. Shanti. her mother and her children to go inside the Kutton-ku-Bara. The prosecution case is that at Kutton-ka-Bara both these appellants commuted rape on Mst. Shanti and belaboured her mother causing several injuries on her person. A report about the incident was lodged by Mst. Shanti on reaching Ummaid Hospital, where she got admitted her mother as indoor patient. Mst. Shanti was examined by P. W. 3 Dr. Prakash Dayal on 13.3.73 at 9.50. a. m. The Doctor found that Mst. Shanti was well built and well developed. Her height was 148 cm. and her weight was 39 kilograms. She had 28 teeth, 14 in each jaw. Her breasts were well developed and were in a state of breast feeding. Her axilliary hairs were black and about 1.5. cm. long. Her pubic hairs were black and about 0.5 cm. long and showed evidence of previous shaving. The doctor also examined her private part and found that her hymen showed old tears. The doctor further found that he was not in a position to give any opinion whether any person had recent sexual intercourse with her. According to the, doctor Mst. Shanti was used to sexual interceresse and her age was about 19 years. The doctor also examined her other parts of the body and found one defused swelling over the upper lip and bruise 0.5cm. on the bridge of nose on right side. Mst. Shanti also complained to the doctor that she had pain on the left scapular region. 4. Shanti was used to sexual interceresse and her age was about 19 years. The doctor also examined her other parts of the body and found one defused swelling over the upper lip and bruise 0.5cm. on the bridge of nose on right side. Mst. Shanti also complained to the doctor that she had pain on the left scapular region. 4. The police after usual investigation put up a challan against the two appellants and ultimately they were convicted and sentenced as aforesaid. 5. So far as the conviction of the appellants under section 376. I.P.C., is concerned it entirely rests on the solitary testimony of Mst. Shanti. I have carefully gone through her statement and T have no hesitation to say that her testimony, besides being highly exaggerated, is also such which cannot be acted upon. Her statement reveals that she was subjected to forcible intercourse by the two appellants on a rough ground. According to her she received several injuries on her back and on her thighs besides on her private part. But the medical evidence does not support her version. P. W. 3 Dr. Prakash Dayal has categorically stated that he found no injuries on her back or on thighs except a bruise on the bridge of her nose on right side and defused swelling over the upper lip. It may be that a grown up women might not receive any injury on her private part, if raped only by one man, but in the present case Mst. Shanti is said to have been raped by two persons. Her evidence shows that she resisted the action of the two appellants in having sexual intercourse with her. According to her she was raped on a rough ground. Under these circumstances it seems highly improbable that she would not have received any injuries on her back, hips or back parts of thighs. Had it been a fact that she had been raped by the persons, one would have expected some injuries to her vagina, but no such injury was found by the doctor. The absence of injuries on these parts of the body of Mst. Shanti creates a good deal of doubt as to the truth of the prosecution story that Mst Shanti was raped by two persons. At any rate looking to the facts and circumstances of the case the evidence of Mst. The absence of injuries on these parts of the body of Mst. Shanti creates a good deal of doubt as to the truth of the prosecution story that Mst Shanti was raped by two persons. At any rate looking to the facts and circumstances of the case the evidence of Mst. Shanti cannot be made the basis for the conviction of the two appellants of the offence under section 376, I.P.C. It may be mentioned here that there is no rule or practice that in every case there must be corroboration of the statement of the prosecutrix before a conviction can be based thereon, but as a matter of prudence the necessity of corroboration must be present in the mind of judge, specially where it is found that the prosecutrix was used to sexual intercourse and where it is further found that she is not giving true facts. The learned Additional Sessions Judge has placed reliance on certain stains of human semen found on the clothes of Mst. Shanti. In a case of married women the evidence of stains of man semen on the clothes of the lady cannot be regarded as a corroborative piece of evidence to prove commission of the offence of rape. It may be that human semen was found on the clothes of Mst. Shanti on account of the sexual intercourse committed by her own husband. My attention was also drawn to the two injuries noticed by the face of Mst. Shanti. These injuries also do not lead to the inference that they were caused due to commission of rape on Mst. Shanti. In absence of any corroboration of the evidence of Mst. Shanti, I do not consider it safe to hold the appellants guilty of the offence under section 376, I.P.C. In my opinion the prosecution has not succeeded in bringing home guilt to the appellants under section 376 I.P.C. beyond the realm of doubt; The appellants, in my opinion, are entitled to acquittal of offence under section 376 I.P.C. 6. I accordingly, allow the appeal in part and while maintaining the order convicting and sentencing the appellants Sukhram and Mohmmed Saddiq under section 25 and 326 read with section 34, I.P.C., respectively, as also under section 325 I.P.C. I acquit the two appellants of the offence under section 376, I.P.C. 7. I accordingly, allow the appeal in part and while maintaining the order convicting and sentencing the appellants Sukhram and Mohmmed Saddiq under section 25 and 326 read with section 34, I.P.C., respectively, as also under section 325 I.P.C. I acquit the two appellants of the offence under section 376, I.P.C. 7. In computing the period of sentence of imprisonment the appellants will be entitled to set off the period of detention, if any undergone by them during investigation inquiry of trial of this case. *******