JUDGMENT P.N. Goel, J. 1. THE 4 appellants have been convicted under Section 376 IPC to undergo RI for 3 years. They have been acquitted of an offence punishable under Section 307 IPG. 2. THE appellants are residents of village Mohra, police station Bargaon, district Saharanpur. Village Mohra is 3 miles from village Dalheri. There is a Production Centre Gandhi Ashram in village Mohra. The occurrence took place on 24-2-1976 at about 5 P. M. in the Arhar field of Krishna Master within the limits of village Balu Majra, police station Bargaon. Smt. Sulochana, PW 4, aged about 19 years, younger sister of Kulbir Singh, PW 7, of village Dalheri was raped by the 4 appellants, one after another. 3. IN February 1976, appellants were students of B. N. D. College Jadoya Panda. Ishwarpal appellant was student of 12th class. The other 3 appellants were students of 11th class vide statement of Sri Jagan Nath Singh, Pradhan- acharya, (PW 1). 4. SMT. Sulochana was married about 5 years before the occurrence to Mahendra of village Bijna. In or about January, 1975, she gave birth to a son. Her son died in or about July, 1975. After the death of her son she came to her father's house in village Dalheri. She used to spin cotton yarn and for that purpose she used to get cotton from the Production Centre Gandhi Ashram Mohra. On 24-2-1976 at 3.30 P. M. she left her house along with her brother Kulbir Singh to deliver spinned yarn at the Production Centre. She reached there, delivered the yarn and took one Kg. of Cotton and left the Production Centre for her village. Kulbir Singh did not accompany her because he began to see some quilts (Lihaf). He told her that he would shortly be following her. As soon as she reached on the bank of irrigation channel, the 4 appellants met her. Ishwarpal was having a pistol. She was caught by the appellants and Ishwarpal threatened her to shoot, if she raised alarm. The appellants then took her into the Arhar field of Krishna Master on the other side of the channel She was made to lie on the ground. Her salwar was untied and lowered. Thereafter the appellants committed sexual intercourse with her one after another. Ishwarpal was the last to commit sexual intercourse. The appellants then took her into the Arhar field of Krishna Master on the other side of the channel She was made to lie on the ground. Her salwar was untied and lowered. Thereafter the appellants committed sexual intercourse with her one after another. Ishwarpal was the last to commit sexual intercourse. She raised alarm which attracted Kulbir Singh, Pritipal, PW 6, Ratan Singh, PW 10 and Roop Ram. These four persons saw Ishwarpal committing sexual intercourse with her. The 4 appellants then ran away towards north. A chase was given. Ishwarpal fired his pistol. Thereupon the 4 persons came back. SMT. Sulochana told them that the 4 appellants had committed rape on her. Smt. Sulochana was taken to the police station by her brother Kulbir Singh. Kulbir Singh got a report written in Bargaon by a tea vendor. He lodged a report at the police station at 6. 30 P. M. Ajaipal Singh SI PW 12, entered upon investigation. 5. ON 25-2-1976 at 12 O'clock Dr. Veena Sahney PW 3 examined Smt. Sulochana. She did not find any sign of violence on her body. She did not find any sign of recent injury in her private parts. 6. DR. I. S. Mathur PW 3, X'rayed the relevant joints of Smt. Sulochana. On seeing the X'ray report etc. DR. Veena Sahney expressed the opinion that she was about 19 years of age and used to sexual intercourse. On 24-2-1976, Salwar and kunta of Smt. Sulochana were sent to the chemical examiner. The chemical examiner found semen stains on the salwar only. 7. ON 25-2-1976 Ajaipal Singh, Investigating Officer took 17 pieces of glass bangles and some hairs of the head from tie scene of occurrence. 8. THE appellants did not admit to have committed sexual intercourse with Smt. Sulochana as alleged. Ishwarpal appellant gave out Ms age as 18 years. The first Additional Sessions Judge, who tried the case assessed his age as 20 years. He stated that he had quarrel with Mahabir in respect of a passage through his field and that therefore, he had been falsely implicated. 9. RAMESH, appellant, gave out Ms age as 16 years. The Additional Sessions Judge assessed his age as 19 years. He contended that he was not used to do work of Mahabir Singh and therefore he was falsely implicated. He works as carpenter. 10. 9. RAMESH, appellant, gave out Ms age as 16 years. The Additional Sessions Judge assessed his age as 19 years. He contended that he was not used to do work of Mahabir Singh and therefore he was falsely implicated. He works as carpenter. 10. TEJPAL, appellant, gave out his age as 17 years, The Additional Sessions Judge assessed his age as 20 years. He iff son of Krishna Singh Master in whose field the occurrence took place. He asserted that he had enmity with Mahabir and Mahabir got him implicated. Baboo, appellant gave out his age as 18 years. The Additional Sessions Judge assessed his age as 20 years. He contended that Mahabir was inimical to him because Mahabir and he got the property of Smt. Kala, cousin sister of the mother- in-law of Smt. Sulochana and that there was quarrel between him and Mahabir in respect of the said property. 11. MOTHER-in-law of Smt. Sulochana belonged to village Mohra. She is the first cousin of Krishna Master, father of Tejpal, appellant. Mahabir is her real brother. 12. TO prove its case the prosecution relied on the testimony of Smt. Sulochana, Pritipal, Kulbir Singh and Ratan Singh PWs 4, 6,7 and 10. The appellants did not lead any oral evidence. On an appraisal of the evidence of the prosecution witnesses, the learned First Additional Sessions Judge found the case of the prosecution proved and as such convicted the appellants. 13. LEARNED counsel for the parties have been heard and record examined. 14. THE appellants' counsel firstly contended that the entire occurrence alleged by the prosecution was false and secondly that sexual intercourse, if any, was committed by Ishwarpal, appellant, with the consent of Smt. Sulochana and that, therefore, the appellants could not be Bonvicted. All the 4 prosecution witnesses are related to each other and belong to the same family. Mukhtara and Kartara were real brothers. Pritipal is grandson of Mukhtara. Kulbir Singh and Smt. Stulochana are grand children of Kartara. Kulbir Singh and Pritipal are joint in holding. Ratan Singh PW and Roop Ram are also of the family of Kulbir Singh and! Pritipal and they have joint baithak (vide statement of Smt. Sulochana). Houses of all these witnesses are close by it is thus evident that not a single independent witness has come up to support the prosecution case. 15. Ratan Singh PW and Roop Ram are also of the family of Kulbir Singh and! Pritipal and they have joint baithak (vide statement of Smt. Sulochana). Houses of all these witnesses are close by it is thus evident that not a single independent witness has come up to support the prosecution case. 15. IT will next be seen that Kulbir Singh had intentionally gone with his sister Smt. Sulochana to the Production Centre. Smt. Sulochana handed over spinned yarn there and took one kg. of cotton. She had no other work at the Production Centre. She immediately left the Production Centre for her village. In these circumstances Kulbir Singh should have left the Production Centre along with Smt. Sulochana. Kulbir Singh and Smt. Sulochana stated that Kulbir Singh began to see quilts. Kulbir Singh could easily see quilts at the time when Smt. Sulochana handed over the spinned yarn and took cotton from the Production Centre. She stayed at the Production Centre for about half an hour. In case Kulbir Singh did not like to see the quilts during this period of half an hour, he could ask Smt. Sulochana to stay at the Production Centre till he saw the quilts. But the strange thing is that Smt. Sulochana did not stay there and left the Production Centre alone. 16. IN this connection one more fact deserves mention. At the time Smt. Sulochana reached the Production Centre, there were some girls of her village quite close to Gandhi Ashram. They were Kamlesh, Brijesh, Omwati, Sita, Kaushalya, Dulari, Suresh, Shiksha and Mangla. All of them were returning to the village together. They were at 10-15 steps only from the Gandhi Ashram. In case Smt. Sulochana desired to return from the production Centre immediately after handing over the spinned yarn and after taking the cotton, she could ask these girls to wait for her. The position that follows from the above is that Smt. Sulochana left or wanted to leave the Production centre alone. 17. SO far as Baboo, Ramesh and Tejpal are concerned, there is the solitary evidence of Smt. Sulochana that they committed sexual intercourse with her one after another. These 3 appellants were not seen by any other witness committing sexual intercourse with her. SO far as Ishwarpal, appellant is concerned, there is not only the evidence of Smt. Sulochana but also the evidence of 3 other witnesses. These 3 appellants were not seen by any other witness committing sexual intercourse with her. SO far as Ishwarpal, appellant is concerned, there is not only the evidence of Smt. Sulochana but also the evidence of 3 other witnesses. Kulbir Singh has stated that after seeing the quilts, he left the Production Centre Gandhi Ashram about 20 minutes after Smt. Sulochana. He met Pritipal, Ratan Singh and Roop Ram at the patri of canal minor. In connection with the marriage of his son Pritipal along with Ratan Singh and Roop Ram had gone to purchase khand from Jabar Singh of Balu Majra at about 2.30 P. M. from his village Delheri. He wanted to purchase 2-3 bags of khand. Admittedly he did not purchase any khand on that day. He was returning along with Ratan Singh and Roop Ram from Balu Majra and, therefore, happened to meet Kulbir Singh. One thing strikes strange. There is a crusher in the village of Pritipal. Khand is manufactured at the said crusher. Bargaon is close to the village of Pritipal. There is a crusher as well as a sulpher plant in Bargaon. Khand and sugar are manufactured in Bargaon. In these circumstances it is natural to expect that Pritipal would purchase khand either in his own village or from Bargaon. It is, therefore, doubtful that Pritipal had actually gone to Balu Majra along with Ratan Singh and Roop Ram to purchase khand. 18. THERE is a broad discrepancy in the statement of Smt. Sulochana, Pritipal, Kulbir Singh on the one side and Ratan Singh on the other side. According to Smt. Sulochana all the 4 appellants were putting on shirts, pants as well as under- wears. Ishwarpal who committed sexual intercourse with her in the last ran away with underwear on. He took away his pant with him. Pritipal clearly stated that Ishwarpal ran away with his pant. But Ratan -Singh stated that Ishwarpal was putting on a kurta, that he had put off his underwear, that he was naked and that he ran away tying his Tahmad. He then stated that the other 3 appellants were putting on Tahmad. Then he corrected himself and said that they were putting on trousers. Evidence in the instant case took place only 5 months after the occurrence. Discrepancy in respect of clothes of Ishwarpal gives an indication that Ratan Singh had not seen the occurrence. He then stated that the other 3 appellants were putting on Tahmad. Then he corrected himself and said that they were putting on trousers. Evidence in the instant case took place only 5 months after the occurrence. Discrepancy in respect of clothes of Ishwarpal gives an indication that Ratan Singh had not seen the occurrence. In other words the occurrence was not seen by Ratan Singh, Pritipal and Roop Ram who were returning from Balu Majra. In this connection it is worth noticing that Smt. Sulochana was crying Bachao Bachao at the time of occurrence. Pritipal, Kulbir Singh and Ratan Singh heard her cries, but they remained quiet. They quietly reached near the Arhar field. Just after hearing her cries they did not shout in any manner. This conduct of these witnesses is indicative of the fact that they had not heard her cries it means that Smt. Sulochana did not cry "Bachao Bachao". 19. IT has been pointed out that Sunt. Sulochana and Kulbir Singh cannot be considered wholly reliable witnesses. According to the prosecution all the 4 appellants including Tejpal committed sexual intercourse with Smt. Sulochana. In the trial court Smt. Sulochana clearly stated in examination-in-chief that Ishwarpal, Baboo and Ramesh only committed sexual intercourse with her. She omitted the name of Tejpal. Kulbir Singh also omitted the name of Tejpal. He filed an application Ex. Kha 2 and an affidavit Ex, Kha 1 before the trial court. In the affidavit Ex Kha. 1, he deposed that he had given out the names of 3 persons only to the Investigating Officer and not the name of Tejpal: He further deposed that the. Station Officer got the first information report written out by a tea vendor. These two witnesses have given an explanation for omitting the name of Tejpal. The explanation is that the mother-in-law of Smt. Sulochana told them to omit the name of Tejpal, because he was her relation, otherwise her son Mahendra would leave Smt. Sulochana. This explanation is hardly believable. Before the Investigating Officer Smt. Sulochana stated that Tejpal was the first person who opened her waist-band and committed sexual intercourse with her. According to her Tejpal was. followed by Baboo, Baboo was followed by Ramesh and Ishwarpal came up in the last to commit sexual intercourse with her. 20. This explanation is hardly believable. Before the Investigating Officer Smt. Sulochana stated that Tejpal was the first person who opened her waist-band and committed sexual intercourse with her. According to her Tejpal was. followed by Baboo, Baboo was followed by Ramesh and Ishwarpal came up in the last to commit sexual intercourse with her. 20. SEXUAL intercourse, to constitute an offence of rape, in the case of a married woman aged about 19 years who has already given birth to a child should be committed against her will or without her consent. In the instant case Smt. Sulochana, at the time of occurrence was a young woman of 19 years. She was married 5 years before the occurrence. She had given birth to a son about one year before the occurrence. She clearly stated that since the appellants stopped her at the canal patri, she began to raise alarm and she continued to raise alarm upto the place of occurrence. A gool fell in the way. The appellants caught her arms from both sides, then she jumped and crossed the gool which was about 1-1/2 yards in width. She further stated that at the time the appellants were committing sexual intercourse with her, she was trying to save herself and she was also trying to release herself. She used to move her body from one side to another. Her glass bangles were broken. Notwithstanding these facts not a single scratch was found on any part of her body. There was no injury even on her thighs. It has no doubt been said that when an appellant was committing sexual intercourse with her, the other 3 appellants were catching hold of her. Even then there should have been some injuries on her neck, bach or legs. But not a single injury was found thereon. It has already been indicated above that Smt. Sulochana left the Production Centre alone. If really Kulbir Singh had gone with her, he must have accompanied her from the Production Centre. It has also been indicated above that on hearing her cries, the prosecution witnesses did not shout in any manner. They quietly proceeded and reached the scene of occurrence. Taking into consideration all these facts and circumstances together it appears that the sexual intercourse, if any, was committed with Smt. Sulochana with her consent and not against her will. It has also been indicated above that on hearing her cries, the prosecution witnesses did not shout in any manner. They quietly proceeded and reached the scene of occurrence. Taking into consideration all these facts and circumstances together it appears that the sexual intercourse, if any, was committed with Smt. Sulochana with her consent and not against her will. Reference may here be made to two cases : (1) Pratap Misra v. State of Orissa, AIR 1977 SC 1307 . In this case 3 appellants were said to have committed sexual intercourse with the prosecutrix forcibly one after the other in quick succession. The prosecutrix was a young woman aged 23 years and pregnant. There was no consent could be inferred. (2) Tukaram v. State of Mahartshtra, AIR 1979 SC 185 . In this case 2 constables had committed sexual intercourse at the police station. The prosecutrix Mathura was carrying on illicit intimacy with one Ashok. There were no extra-ordinary injuries on her person. One of the constables satisfied his lust in full. It was held that the sexual intercourse was not proved to amount to rape. 21. A question now arises if the prosecutrix is falsely implicating the appellants. The contention of the appellants is that they had been falsely implicated because of their quarrel with Mahabir real brother of the mother-in-law of Smt. Sulochana. The appellants have not led any evidence whatsoever that Mahabir was inimical to them. Smt. Sulochana and Kulbir Singh PWs have shown complete ignorance in this respect. Hence, in this case the defence has not been able to show that the appellants had been implicated on account of any enmity with Mahabir. 22. IT is well known that a married woman will not bring a false charge of rape unless she has a strong motive; to do so. Inherent tendency in a woman is to conceal the outrage. A careful consideration of the entire evidence and circumstances dealt with above leads to the following conclusions : (1) Tejpal, Baboo and Ramesh, appellants did not commit sexual intercourse with Smt. Sulochana. Had they indulged in this act against her will, there should have been some injuries on her private parts and legs ete. No such injury was found. A careful consideration of the entire evidence and circumstances dealt with above leads to the following conclusions : (1) Tejpal, Baboo and Ramesh, appellants did not commit sexual intercourse with Smt. Sulochana. Had they indulged in this act against her will, there should have been some injuries on her private parts and legs ete. No such injury was found. These three appellants may have helped Ishwarpal in bringing her to the Arhar field or may be present near the place of occurrence at the time of occurrence. (2) Ishwarpal did commit sexual intercourse with her. But he did so with her consent. (3) The occurrence was not sera by Pritipal, Ratan Singh and Roop Ram. (4) Smt. Sulochana was in all probability seen in compromising position with ishwarpal by Kulbir Singh. Therefore, she began to accuse not only Ishwarpal but also the other three appellants. 23. IN view of the above conclusions, none of the appellants can be convicted for the offence of rape punishable under section 376 IPC. 35. The appeal is accordingly allowed and the conviction and sentence of the appellants under Section 376 IPC recorded by the First Additional Sessions Judge, Saharanpur on 10-9-1976 are set aside. The appellants are on bail to which they shall not surrender. There bail bonds are discharged. --- Appeal allowed.