B. K. BEHERA, J. ( 1 ) THE appellant stood charged under sections 376 and 457 of the Indian Penal Code (for short, the Code ). While serving as a salesman in the Kumudi Tribal Development Co-operative Society, the appellant, it was alleged, committed rape on Sara Chadei (P. W. 4) while her parents were away and she was all-alone in the house in village Kumudi in the district of Keonjhar during the night-of the loth/lith August, 1979 after entering the house which had been closed from inside by putting a THESA, a piece of wood and after threatening her to be killed and gagging her mouth with a towel. This occurrence attracted the attention of the co-villagers including P. Ws. 1, 3 and 6 who came near the house and after the victim opened the door, they learnt from her about the commission of rape an her by the appellant. In order to escape, the appellant scaled over the wall and fell down and as a result, sustained injuries on his person. He was detained by the villagers during the night and on the day following, he escaped on the pretext of going out to attend the call of nature. P. W. 1 went to Baunsapal and informed P. W. 5. the father of the victim girl, as to what had happened, On receiving information from him. P. W. 5 returned home. P. W. 4 informed him about the commission of rape on her by the appellant. Being accompanied by P. W. 1, P. W. 5 went to the police station and lodged the first information report (Ext. 31. Investigation followed and on its completion a charge-sheet was placed. After commitment, the appellant was prosecuted. This was the case of the prosecution presented at the trial. ( 2 ) THE case of the appellant was that as he had been orders of transfer, he had gone out ,during the night to collect the dues of the society from some of the villagers including P. W. 5 as they had taken articles from the society on credit and when he enquired from P. W. 4 about her father and was told that he was absent from home, the villagers did not like his conversation with P. W. 4, assaulted him and falsely involved him in this case. ( 3 ) ON a consideration of the evidence of seven witnesses examined for the prosecution and one witness for the defence, Mr. G. C. Ray, the learned Additional Sessions Judge, accepted the case of the prosecution and held the appellant to be guilty under both the charges and convicted him thereunder. The appellant was sentenced to undergo rigorous imprisoment for a period of five years under section 376 of the Code and no separate sentence was passed against him under section 457 of the Code. ( 4 ) AS has been submitted at the Bar by the learned counsel for both the sides, in the absence of any evidence that the appellant had taken precautions to conceal house-trespass from any person, be could not be convicted under section 457 of the Code. The order of conviction recorded against him under section 457 of the Code was unfounded and misconceived. It is noticed that in the charge framed thereunder, it had been stated by Mr. P. Jena. then the learned Additional Sessions Judge, that the appellant had committed lurking house-trespass in order to commit the offence of adultery. There was no evidence that P. W. 4 was then a married girl. Adultery is not the same thing as rape. The charge had been framed without due and reasonable care. ( 5 ) MR. Dhal, the learned counsel for the appellant, has challenged the order of conviction recorded against the appellant under section 376 of the Code as illegal and unfounded. Mr. Ray, the learned Additional Government Advocate, has contended that there was no reason to discard the evidence of P. W. 4 which had been supported by her immediate statement made to the covillagers and later to her father with regard to the occurrence. ( 6 ) IT is admitted on all hands that during the night of occurrence, P. W. 4 was all alone in the house. She had testified thus: The accused entered into the house and put his hands on me. I got up from sleep and asked TOME KIA. The accused in answer told that he was Kamala Patra. I asked the accused that my parents were absent and why did he enter into the room. I also told the accused that he was Harijan by caste and I am milkman by caste, and I would raise shout. I got up from sleep and asked TOME KIA. The accused in answer told that he was Kamala Patra. I asked the accused that my parents were absent and why did he enter into the room. I also told the accused that he was Harijan by caste and I am milkman by caste, and I would raise shout. The accused immediately put his towel on my mouth and gagged it. He with the flashes of the torch, picked up the Budia (M. O. II) which was inside the room and threatened me to kill if I would raise shout. The accused was wearing a Lungi and M. O. III is the said Lungi. At the time of occurrence, I was wearing this Sari (M. 0. IV ). On the cot where I had slept there was a Kantha and M. O. V-is the said Kantha. The accused removed my Sari and raised his Lungi. The accused then made forcible sexual intercourse with me against my will. At the time of rape I was simply crying being helpless. The villagers on their arrival, asked me to open the door and wanted from me to know as to who was inside the house. I opened the door and told the villagers that accused Kamala Patra was inside the house. I was then crying. The accused on my opening the door wanted to escape through the gap in between the wall and the roof and while escaping fell down in our cow-shed and sustained injuries. Being asked by the villagers including P. W. 1. I narrated how the accused entered inside the house and committed rape on me On getting information, my father came in the morning and I told everything to him ( 7 ) EVIDENTLY to probabilise her version of, forcible sexual assault on her person by the appellant and to show that she was not in a position to raise a cry, P. W. 4 had come forward with a story that the appellant had gagged her mouth with a towel although she had not stated about it in the course of investigation. If this part of her evidence in the court is not to be accepted and it should not be, in view of this important omission which, in the context, would amount to a contradiction within the meaning of Explanation to Section 162 of the Code of Criminal Procedure, it is not understood as to why P. W. 4 would not even raise a cry when the appellant had attempted and succeeded in sexual assault on her person, if, as alleged, it was against her will and without her consent. ( 8 ) THE evidence of P. Ws. 1, 3 and 6 was that during the night itself, they came to the scene. As their evidence would indicate, Jagannath Patra was the first person who had the knowledge about the entry of the appellant, inside the house of P. W. 4. The prosecution had not examined Jagannath Patra as one of its witnesses. Although P. Ws. 1, 3 and 6 were said to be together when P. W. 4 had narrated to them about the commission of rape by the appellant, P. W. 3 had not stated about it in his evidence. ( 9 ) AS would appear from the evidence of P. Ws. 1 and 5, P. W. 1 went and informed P. W. 5 as to what had happened. The evidence of P. W. 5 was that on coming home, he was informed by his daughter (P. W. 4) about the commission of rape on her person by the appellant. In the first information report, P. W. 1 had not stated that he had been informed by P. W. 4 that the appellant had committed rape on her person. On the other hand, the allegation made therein was that P W. 4 had informed that the appellant had attempted to outrage her modesty and nothing beyond that, This was not evidence of P. W. 4 nor that of any other witness in the court. On the other hand, the evidence led at the trial was that P. W. 4 had informed the co-villagers and then her father that the appellant had committed rape on her. P. W. 1 was present when the first information report was lodged. On the other hand, the evidence led at the trial was that P. W. 4 had informed the co-villagers and then her father that the appellant had committed rape on her. P. W. 1 was present when the first information report was lodged. He could have corrected P. W. 5 and would have brought it to the notice of the police officer recording it that actually P. W. 4 had informed them that the appellant had committed rape on her and not merely that he had attempted to outrage her modesty. He had not testified about having done so. No doubt, the first information report is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But omissions of important facts affecting the probabilities of the case are relevant under section 11 of the Evidence Act in judging the veracity of the prosecution case. See Ram Kumar Pande v. The State of Madhya Pradesh. In the circumstances of this case, the omission of the allegation of rape by the appellant in the first information report is of great significance and cannot lightly be brushed aside. At the hearing, the learned Additional Government Advocate has fairly submitted that this is a vital omission on the part of P. W. 5 in the first information report lodged by him in the presence of P. W. 1. In my view, if P. W. 4 had been raped by the appellant and she would have spoken about it, P. W. 5 would not have omitted to mention this important aspect in his report made in the presence of P. W. 1. ( 10 ) THE medical evidence did not support the evidence of P. W. 4. The Lady Doctor (P. W. 2) had opined in the certificate (Ext. 2) given by her that P. W. 4 was habituated to sexual intercourse. If this was the state of affairs, the finding of semen on the Kantha (M. O. V) on which P. W. 4 was sleeping during the night would not further the case of the prosecution especially in the absence of evidence that M. O. V was being used only by P. W. 4 and no one else in the house. The Lady Doctor had not noticed any injury on the breast nor any other external injury on the person of P. W. 4. The Lady Doctor had not noticed any injury on the breast nor any other external injury on the person of P. W. 4. She had opined that the age of P. W. 4 was about 17 to 19 years. According to the doctor, there had been old tears over the hyman. As has been submitted by the learned Additional Government Advocate and as observed by the learned Additional. Sessions Judge, tears over the hymen could be owing to several factors. But in the instant case, the opinion of P. W. 2 was that P. W. 4 was used to sexual intercourse, P. W. 2 had not found spermatozoa on the person of P. W. 4. According to her, rape might or might not have been committed. ( 11 ) THE Saree (M. O. I V)1 which had been worn by P. W. 4 during the night of occurrence, had been sent for chemical examination, but it did not contain stains of semen. The appellant had been arrested on the 29th of August, 1979 and a Lungi (M. O. III) had been seized from him which, on chemical examination, did not contain stains of semen. This, however, is inconsequential as the Lungi had been seized long after the occurrence. ( 12 ) THERE was evidence that after the occurrence, the appellant had been hospitalised. He had injuries on his person which, according to the prosecution, had been caused owing to a fall while he escaped and according to the defence, as a result of the assault on his person by the villagers. It was not the case of the prosecution nor would the evidence suggest that any of the injuries had been caused on the appellant during the commission of rape by him owing to the resistance by P. W. 4. ( 13 ) THE appellant was not supposed to enter the house of P. W. 4 for the purpose of collection of the dues from P. W. 5 who was not present then. The fact remains that the appellant had been found indoors. If he had gone to collect the dues from P. W. 5, he would not enter his house of which the victim girl was the sole occupant then. The defence case appears to be unreal and fantastic. However, the prosecution cannot build up a case solely on the weakness or falsity of the defence. If he had gone to collect the dues from P. W. 5, he would not enter his house of which the victim girl was the sole occupant then. The defence case appears to be unreal and fantastic. However, the prosecution cannot build up a case solely on the weakness or falsity of the defence. ( 14 ) I thus find that the charge of rape had not been established. ( 15 ) IN the result, I would allow the appeal, set aside the order of conviction recorded against the appellant under sections 457 and 376 of the Indian Penal Code and the sentence passed against him under section 376 of the Indian Penal Code.