S. S. SHARMA, J. ( 1 ) IN Sessions Trial No. 2 of 1984, twelve persons including the present two appellants were tried before the Additional Sessions Judge, Seoni. However, by judgment dated 31. 3. 1984, ten of them were acquitted of all the charges framed against them. The two appellants were convicted under section 376 Indian Penal Code and each of them was sentenced to R. I. for five years. These two have challenged their conviction and sentence by this appeal. ( 2 ) THE facts briefly stated are as under. On 4. 8. 1983 Shivkali (P. W. 2) and Ramkali (P. W. 7) were travelling in a truck which was coming from Seoni to Jabalpur. At about 11. 00 p. m. the truck stopped on the way at Dhooma. Shivkali and Ramkali got down from the truck and went to the hotel of Jeewan Lal (P. W. 3) for taking tea etc. It is alleged that appellants Vijay Kumar and others were also present there. Appellant Vijay Kumar caught hold of Shivkah and dragged her to a house in which he was residing. The other accused also reached there. The door of the room was chained from outside. Appellant Vijay Kumar is said to have forcibly committed sexual intercourse with Shivkah. Thereafter when Vijay Kumar and Shivkali came out, the latter was taken away by the remaining eleven accused saying that they would send her away in a truck. Those accused, instead of sending 8hivkali in a truck took her into a dilapidated KOTHA in a field where each of them also forcibly committed sexual inter-course with her. One of the acquitted accused Gangaram is said to have removed a silver ornament from her leg, costing Rs. 125/ -. ( 3 ) SHIVKALI (P. W. 2) lodged the first information report Ex. P. 5 on 5. 8. 1983 at about 9. 15 a. m. in police station Dhooma. This report was recorded by Sub-Inspector S. S. Saiyam (P. W. 12 ). Shivkali was sent for medical examination. Head Constable Keshri Prasad (P. W. 13) had seized some pieces of broken bangles from the front of the TAPRA. A torn blouse of Shivkali was also seized from her body. Her petticoat was seized vide memorandum Ex. P. 6. During investigation the under-wears of the two appellants and the other accused were seized. ( 4 ) DR. Head Constable Keshri Prasad (P. W. 13) had seized some pieces of broken bangles from the front of the TAPRA. A torn blouse of Shivkali was also seized from her body. Her petticoat was seized vide memorandum Ex. P. 6. During investigation the under-wears of the two appellants and the other accused were seized. ( 4 ) DR. (Smt.) Vidya Ganjiwala (P. W. 1) examined Shivkali on 6. 8. 1983. She found her to be accustomed to sexual inter-course. She noticed multile boils (like syphilis) over vagina. She could not give any opinion about any recent inter-course having been committed with Shivkali. ( 5 ) THE two appellants pleaded false implication. They did not examine any witness is defence. ( 6 ) ACCORDING to Shivkali (P. W. 2) she and Ramkali (P. W. 7, after getting down from the truck had gone to the hotel of Jeewanlal (P. W. 3) to eat their food. At that time, Jeewanlal was also present. According to her, it was appellant Vijay Kumar who caught hold of her hand and two other accused, namely, Kailash and Gaugaram assisted him. Appellant Vijay Kumar took her inside his house which is near to that hotel Vijay Kumar was then telling her that he would keep her as his wife. Inside the room, appellant Vijay Kumar removed her clothes and forcibly committed sexual intercourse with her. At that time acquitted accused Gangaram bad locked the door from outside. ( 7 ) MST. Ramkali (P. W. 7i, however, alleges that from Jeewanlals hotel Shivkali was taken away by three-four persons. She pointed out appellants Suresh s/c Dasai and Kailash as the persons who had taken away Shivkali. Ramkali thus does not name appellant Vijay Kumar as the person who had taken Shivkali away. Jeewanlal (P. W. 3) did not support the prosecution. He merely stated that Shivkali and one another woman had come to his hotel and wanted some food to eat. How ever, since there was no food at that time, be could not supply and after closing the hotel he went away from there. He denied any such incident having taken place in his presence. He was cross- exam med by the public V Prosecutor with the permission of the Court. How ever, since there was no food at that time, be could not supply and after closing the hotel he went away from there. He denied any such incident having taken place in his presence. He was cross- exam med by the public V Prosecutor with the permission of the Court. ( 8 ) THUS so far as the incident at the hotel is concerned, there is material variance in between the evidence of Shivkali (P. W. 2) and Ramkali (P. W. 7 ). Jeewanlal (P. W. 3) does not a tall support the prosecution story. According to Ramkali (P. W. 7), there were about five to six other male labourers and about six female labourers. None of these labourers has been examined by the prosecution. ( 9 ) THAT Question apart, there is yet one more unusual feature in this case. Ramprasad (P. W. 8) is a Head Constable of Police. At the time of incident, he was a constable (wireless operator) at Dhooma and was residing as a tenant in the house of some Govind Soni. His version is that on 4. 8. 1983 at about 10 to llp. m appellant Suresh s/o Dasai came to him and informed that appellant Vijay Kumar has brought a woman and is committing sexual inter-course with her inside his house. He (Ramprasad), therefore, went to the house of appellant Vijay Kumar and peeped through the door. He saw appellant Vijay Kumar committing sexual inter-course with Shivkali. At that time, the door was locked from outside and other accused were standing there. There after a peon of the bank brought Ganesh Soni who is the owner of the house. After when the lock was opened, the appellant and Shivkali were brought outside. Shivkali then appeared to be nervous from her face. One Kashi Maharaj who had come along with the house owner gave two to four slaps to appellant Vijay Kumar. The prosecution has examined Maniram who is an employee of the bank. He also did not support the prosecution and even denied that appellant Vijay Kumar was living in the upper portion of the house. He, however, admitted that some Tiwari was living there. As he states, he did not see any incident. He also was cross-examined by the Public Prosecutor. Ganesh Prasad (P. W. 11) also did not support the prosecution and was, therefore, cross-examined by the Public Prosecutor. He, however, admitted that some Tiwari was living there. As he states, he did not see any incident. He also was cross-examined by the Public Prosecutor. Ganesh Prasad (P. W. 11) also did not support the prosecution and was, therefore, cross-examined by the Public Prosecutor. ( 10 ) RAMPRASAD (P. W. 8) in his cross-examination admitted that when appellant Vijay Kumar and Shivkali had come out, he did not take them to the police station and Shivkali was taken away by the other persons saying that they would send her away in a truck. His explanation was that he had gone to put on his dress and did not even lodge any report. In the night, as he states, he could not find out Shivkali and felt that she must have gone away in the truck. Thereafter he went away to his quarter and slept. ( 11 ) ADMITTEDLY, Shivkali (P. W. 2), at the time of the incident was much above 16 years of age. In her deposition, her age has been mentioned to be about 22 years. She was a married woman with a child. The main question in this case would be whether the alleged inter, course with Shivkali was committed against her will and/or without her consent. In my opinion, the circumstances clearly go to indicate that Shivkali (P. W. 2) was a consenting party. As already pointed out, if she was being removed forcibly from Jeewanlal's hotel, there was no reason why the other labourers, male as also female, would not have objected or resisted her being taken away. There is nothing in the evidence to hold that she had raised any shouts. The prosecution has not examined anyone of those labourers. There is nothing in the evidence of Head Constable Ramprasad (P. W. 8) to show that after when Shivkali had come out of the room, she had made any complaint about the appellant Vijay Kumar having forcibly committed sexual inter-course with her or she having been forcibly brought by appellant Vijay Kumar to that room. There is nothing in the evidence of Head Constable Ramprasad (P. W. 8) to show that after when Shivkali had come out of the room, she had made any complaint about the appellant Vijay Kumar having forcibly committed sexual inter-course with her or she having been forcibly brought by appellant Vijay Kumar to that room. The conduct of Ramprasad (P. W. 8) in not taking Shivkali and appellant Vijay Kumar to the police station after when they had come out of the room also goes to indicate that Shivkali was a consenting party and the only reason which persuaded Ram Prasad and others to make a row at the spot was that they felt it to be immoral that appellant Vijay Kumar should have brought some woman to his room for committing sexual inter-course with her. From the evidence it does not at all stand proved that appellant Vijay Kumar had committed sexual intercourse with Shivkali against her will or consent. ( 12 ) SO far as appellant Suresh is concerned he is said to have committed sexual intercourse with Shivkali after when she had been taken away to the KOTHA in a field. Learned trial Judge has found corroboration to the testimony of Shivkali from the fact that the under-wear seized from Suresh as per the report Ex. P. 61 of the Chemical Analyser was found to contain seminal stains and human spermatozoa. In my opinion, the presence of seminal stains and spermatozoa on the petticoat of Shivkali and on the under-wear of the accused by itself would not go to prove that sexual inter-course was committed with her against her will and consent. It may hero be mentioned that the name of appellant Suresh was not mentioned in the report Ex. P. S. The identification parade which is said to have been conducted, has rightly been rejected by the learned trial Judge. ( 13 ) THE statement of Shivkali also suffers from certain infirmities. In her cross-examination, she had been contradicted with her earlier statement to the police as also with certain portions of her report Ex. p. 5. Those contradictions are on material facts. On her own showing, she was left free after the repeated inter-course at about 4. 00 a. m. There does not appear to be any reason, nor has any explanation been given about the report having been lodged at about 9. p. 5. Those contradictions are on material facts. On her own showing, she was left free after the repeated inter-course at about 4. 00 a. m. There does not appear to be any reason, nor has any explanation been given about the report having been lodged at about 9. 15 a. m. when the police station was not far away. ( 14 ) FROM the totality of the evidence and the circumstance. , I am satisfied that the conviction of the appellants cannot be up held and deserves to be set aside. ( 15 ) CONSEQUENTLY, this appeal is allowed. The convictions and sentences of the appellants are set aside. The appellants be released forthwith if not required to be detained in connection with any other case. Appellants set free. .