JUDGMENT 1. - The learned Addl. Sessions Judge, Rajsamand has convicted the appellant Bhagwat Singh under section 376 I.P.C. and sentenced him to seven years R.I. and a fine of Rs. 500/- by his judgment dated 17-7-1987. It has further been directed that in default of payment of fine, the accused will further undergo three months S.I. Being aggrieved of the said conviction and sentence, Bhagwat Singh has filed this appeal. 2. Smt. Mohini aged about 35 years, Bheel by caste, is alleged to have been raped by the accused Bhagwat Singh aged about 20 and Rajpoot by caste. According to the prosecution on 31.10.85 at about 9 a.m. Smt. Mohini was cutting grass in her bida in village Navalsinghji-ka-kheda. The accused Bhagwat Singh came there. Bhagwat Singh called her to come near him addressing her as his bhabhi. She refused to go near Bhagwat Singh but Bhagwat Singh then told her that he will give her money. On this she replied that she did not want any money. The prosecution case further is that thereupon Bhagwat Singh came running towards her and caught hold of her, gagged her mouth and carried her near the fencing of the field where he put her down and had forcible intercourse with her. It is also stated in the first information report that she wanted to resist but her mouth was gagged, therefore, she could not raise any hue and cry. It is also stated that Bhagwat Singh tore her polka and on account of the sexual intercourse her ghaghara got stained. After the act was over Bhagwat Singh ran away. Smt. Mohini then went to the bida of Thakur Fateh Singh of the village where Girdhari Singh s/o Fateh Singh met her and she narrated the incident to him whereupon he directed her to go to the police. Thereupon she went to the police station, Aamet and lodged the information. Thereupon the case was registered. After usual investigations the accused was challaned and committed. He pleaded not guilty to the charge under section 376 I.P.C. and was tried. At the trial 10 witnesses were examined by the prosecutrix. Out of them P W 4 is Smt. Mohini, the prosecution, P.W. 2 Girdhari Singh to whom she is alleged to have reported the matter soon after the incident has turned hostile. He pleaded not guilty to the charge under section 376 I.P.C. and was tried. At the trial 10 witnesses were examined by the prosecutrix. Out of them P W 4 is Smt. Mohini, the prosecution, P.W. 2 Girdhari Singh to whom she is alleged to have reported the matter soon after the incident has turned hostile. Another witness P.W. 3 Sumer Singh to whom also she alleges to have reported the matter, has, of course, supported her to this extent but be has not been relied upon by the court below as admittedly he is inimical towards the accused. P.W. 5, Fateh Singh, has also turned hostile so also P.W 6 Jeewa and P.W. 7 Panna. P.W. 1 Shanker the Motbir regarding the recovery of Mohinis ghaghra. P.W. 8 Bhanwar Singh only speaks of the articles being carried for chemical examination. P W. 9 Umradraj Khan is the Investigating Officer and P W. 10 Shyamlal is the Head Constable, who recorded the first information report. The doctor has not been examined as the medical reports submitted by him Ex P 8, Ex. P 9, Ex. P. 10 and Ex. P 11 have been admitted by the defence. The ghaghra of the prosecutrix had been produced by her before the police on 31-10-85. It was sent for chemical examination and human semen was found on it as would be clear from Ex. P. 10. The accused in his statement under section 313 Cr. P.C. has denied the prosecution story. Two witnesses were examined in the defence to establish that Smt. Mohini had filed an affidavit before the D.I.G. of Police saying that she had not been raped by the accused. A copy of the said affidavit has also been produced on behalf of the accused as Ex. D. 1, since the original affidavit had not been filed by the prosecution. 3. So far as the age of the prosecutrix is concerned, the doctor has found her to be above 18 years of age and she herself stated her age to be 35 before the court. Therefore, there is no dispute before me that Smt. Mohini is aged more than 18. 4. So far as the evidence of sexual intercourse is concerned, the medical evidence is negative. In the report Ex. P 10 it has been observed that there was healed second degree pereneal tear. Therefore, there is no dispute before me that Smt. Mohini is aged more than 18. 4. So far as the evidence of sexual intercourse is concerned, the medical evidence is negative. In the report Ex. P 10 it has been observed that there was healed second degree pereneal tear. There was no evidence of injury of any type of discharge. Intactus admits two fingers easily. The doctor was of the opinion that the patient was habituated to the sexual intercourse. No opinion could be given as regards the date of rape. We are, therefore, left with the evidence of Smt. Mohani. The learned Session Judge has relied upon her and has observed that it is corroborated from the fact that semen was found on her ghaghara. As far as the absence of the injuries on her person is concerned, the learned Sessions Judge has observed that she was a lady Bheel by caste, belonging to the lower strata of the society and, therefore, she could not have been expected to put up resistance against the accused, who was a Rajpoot by caste and she must have been over owed by him. As regards the affidavit Ex. D 1, he observed that it corroborates the fact that she was over owed by the accused and it was on that account that she even had to file that affidavit under the force of circumstance. 5. I have heard the learned counsel for the appellant and the learned P.P. and have gone through the record. 6. It is urged by the learned counsel that the findings of the learned Sessions Judge are all together inconsistent with the record and the judgment is based on mere conjectures and surmises. The evidence of Smt. Mohini has not properly been appreciated. Smt. Mohini is not at all a reliable witness and her testimony does not inspire confidence. Apart from it there appears to be unnecessary delay in reporting the matter in the police. 7. The learned P.P., on the other hand, has supported the judgment of the learned Sessions Judge and has urged that merely because injuries have not been found on the person of the prosecutrix, her evidence need not be discarded. 8. I have given my careful consideration to the rival contentions and in my opinion the contention raised by the learned counsel for the appellant deserves consideration. 8. I have given my careful consideration to the rival contentions and in my opinion the contention raised by the learned counsel for the appellant deserves consideration. It has been observed many times & again by this Court as well as the Hon'ble Supreme Court that in cases of rape where force is alleged to be used and the medical evidence does not show any injuries on the body of the prosecutrix, the evidence of the prosecutrix should be accepted with caution and the conviction may not ordinarily be based on the uncorroborated testimony of such a witness. Reference in this connection may be made to Pooran Das v. The State of Rajasthan, 1982 WLN (UC) 60 , wherein it has been observed as under:- "In most of the cases when the woman alleged to have been ravished is recovered, she, in order to prove her innocence fastens the guilt on the neck of the accused, and therefore, the testimony of the prosecutrix is always to be taken with caution. In case force is used against a grown up woman, she is bound to resist and in that process some injuries are likely to be sustained by the accused. There is also possibility of clothes of the two being torn in the struggle, if the girl resists. In the present case there is no such evidence. Surji does not state about any resistence from her side. Assuming for the sake of arguments that because of any fear she did not resist, still she was bound to sustain some injuries on the portion of her body which came in contact with the ground. According to her version, at the time of rape she was made to sleep on a slab of stone. If the woman is made to sleep on a hard substance abrasions and bruises are bound to occur on her back and buttocks. In the case of Puttan v. State, 1972 Cr. LJ 270 the case of the prosecution was that the accused subjected the girl to sexual intercourse in the field on uneven and rough ground. In the complete absence of any injury or scratches on the person of the accused and the victim, it was held that the intercourse was not forcible and the girl must have been a consenting party." 9. Reference may also be made to State of Rajasthan v. Jirua, 1986 Cr. In the complete absence of any injury or scratches on the person of the accused and the victim, it was held that the intercourse was not forcible and the girl must have been a consenting party." 9. Reference may also be made to State of Rajasthan v. Jirua, 1986 Cr. LR (Raj.) 67 wherein it has been observed as under:- "Thus according to the opinion of the doctor there was no injuries whatsoever either on her hips or on her breasts and there were no teeth bite marks on her cheek. Only hymen was torn but it is not known that it was recently torn. The is a married lady and this fact has been admitted by her in her cross-examination. It is not the case of the prosecution that her guna has not been performed. She is aged about 15 to 16 years and therefore, being a married lady it is quite possible that her hymen might have been torn because of sexual intercourse which her husband might have done with her. This particular aspect of the doctors testimony is not suggestive the one and the only inference that she has been raped by Jirua. The fact that she became unconscious at the spot has been controverted not only by her uncle Heera but her father Shivli also and her mother Banni PW 3. All the three witnesses have stated that the girl never became unconscious and she walked down to her house of own and thus her statement that she became unconscious because of this forcible intercourse appears to be false. When her statement has not been corroborated by the medical testimony and as per her own admission there is no other eye witnesses of the occurrence, the learned lower court was perfectly justified in taking the view that the prosecution has failed to conclusively prove that accused Jirua had committed rape with Mst. Kallo and, therefore, it has rightly extended benefit of doubt to him and has rightly recorded acquittal in his favour." 10. The corroboration of her testimony relied upon by the learned Sessions Judge is the presence of semen on her ghaghara. Kallo and, therefore, it has rightly extended benefit of doubt to him and has rightly recorded acquittal in his favour." 10. The corroboration of her testimony relied upon by the learned Sessions Judge is the presence of semen on her ghaghara. It may at once be stated that she is a married woman and, therefore, the mere presence of semen on her ghaghara does not connect the accused with the crime because the possibility of the semen coming from her husband cannot be ruled out specially when the incident had taken place at about 9 in the morning whereas the report was lodged at about 5 p.m. Not only this she stales that after the incident she had gone home, she had put off her polka, which was torned in the course of the said incident and bad worn another polka, the possibility that she may have also changed her ghaghara, thus cannot be ruled out. Therefore, the only evidence left is that of Smt. Mohini herself. The Conduct of Smt. Mohini also appears to be unnatural, inasmuch as it will appear from her testimony that at first the accused called her near him, when she refused he offered money, she again refused and it was then that the accused caught hold of her, lifted her, took her to the near fencing of the filed, put her down and then had forcible intercourse with her. It is suggestive of two things. The first version about the offer of money goes to show that according to the accused she was capable of being purchased but when she did not act favourably to that according to her she was physically lifted and carried near the fencing. If that was so, she would certainly have resisted and in the course of this resistence while being carried she must have received injuries on her person but there was not a single scratch on her body when the doctor examined her. She further says that after she had been felled down near the fencing and again there was scuffle between them BATAMBATI AAKAR, wherein her polka was torn. At that stage also she must have received injuries but to ones surprise one finds no injury on her person. Further she states that after she had been felled the accused untied his dhoti and thereafter fell upon her and had sexual intercourse with her. At that stage also she must have received injuries but to ones surprise one finds no injury on her person. Further she states that after she had been felled the accused untied his dhoti and thereafter fell upon her and had sexual intercourse with her. It is difficult to understand that if she was not a willing party she would not have utilised this opportunity of getting away while the accused was busy in taking off his dboti. It is also difficult to believe that the accused who is about 20 years of age could have powered her by one hand and could have removed his dhoti by the other. During the course of the intercourse she says that the accused had pressed her breasts which suggests that the hands of the accused were engaged with the breasts. At that stage also she could have put up resistence but it does not appear that she put up any such resistence otherwise injuries would certainly have been received by her or caused to the accused. The accused was also examined by the doctor and no injuries were found on his person. She further states that after the accused had finished he ran away from the spot and at that state she told him that she would sue him. This goes to show that she was concious that she could lesort to action against him still without going to the police station at once, she states that she went to the bida of Thakur Fateh Singh. Thakur Fateh Singh was not there and, therefore, she narrated the incident to his son Girdhari Singh. Fateh Singh does not corroborate her and has gone hostile, so also Girdhari Singh and this part of her story also not only remains un-corroborated but the ground on which she probably wanted to explain the delay in filing the report also remains un-explained. 11. The learned Sessions Judge has observed that the prosecutrix belongs to Bheel caste in the lower strata of the society, whereas the accused belongs to the upper strata for being Rajpoot and, therefore, she could not be expected to have put up any resistence and must have been over owed but I am unable to accept this view. 11. The learned Sessions Judge has observed that the prosecutrix belongs to Bheel caste in the lower strata of the society, whereas the accused belongs to the upper strata for being Rajpoot and, therefore, she could not be expected to have put up any resistence and must have been over owed but I am unable to accept this view. The learned Sessions Judge has failed to take note of the fact that Smt. Mohini is aged about 35 years and according to the doctor she was stout in health, whereas the accused is a boy aged about 20. The place was an open place where other people could be expected and, therefore, it cannot be accepted that merely because Smt. Mohini belonged to the lower strata of the society could not have put up any resistence. As a matter of fact this observation of the learned Sessions Judge is against the evidence of the prosecutrix herself because she does state that she had put up resistence both at the time she was being carried by the accused, and at the time when she had been felled and the accused wanted to commit rape on her. The prosecutrix states in her cross-examination that she had received injuries on her back and legs and she had shown those injuries to the doctor. She further states that she had also received scratches on her breasts. Therefore, in the presence of this evidence, the learned Sessions Judge could not have come to the conclusion that she could not be expected to put up resistence. 12. Further, the narration of the story by the prosecutrix also create doubt about the manner in which the incident is alleged to have taken place. She states that the accused had cleaned and swept the place where she was subjected to rape. The pebbles and stones were removed. She further states that she was pushed by the accused from the road to the place of the incident. She also states that on the road itself she had told the accused that he should not have any sexual intercourse with her and the accused told her that he will have and thereupon she told him that if he had any sexual intercourse with her she would sue him. She also states that on the road itself she had told the accused that he should not have any sexual intercourse with her and the accused told her that he will have and thereupon she told him that if he had any sexual intercourse with her she would sue him. This narration is suggestive of the fact that either the whole story is a concocted one or the prosecutrix was a consenting party to the sexual intercourse because she would not have waited till the accused had cleaned and swept the spot for preparing it for sexual intercourse with the prosecutrix. Further it also does not stand to reason that he would have pushed her to the spot from the road, which is a busy one as she admits that cars go on, coming and going on that road. She further admits that near about the spot there are the places where manure collected by the villages. The conversation that she told the accused that he should not have any sexual intercourse with her and the accused told her that he will have so, is also not insignificant. 13. The learned Sessions Judge has also observed that the filing of the affidavit by the prosecutrix before the D.I.G. of Police goes to show that she was scared of the accused and, therefore, she may not have put up resistence. But, I am unable to agree to this observation also. Leaving apart the defence story about this affidavit, the prosecutrixs own version about it appears to be wholly unbelievable. She admits having filed such an affidavit and the explanation put forward by her is that residents of her village, namely, Nahar Singh Rajpoot and Panna Lal Brahman had told her that when Bhagwat Singh returns from Jail, he would kill her and, therefore, she should change her statement and it was on account of this fear that she changed her statement by filing an affidavit. She goes on to state that for this purpose she had taken a loan of Rs. 1000/-for engaging a lawyer. If that was so and she was really scared of the accused she would not have made the statement before the court implicating the accused. She does not state that now her fear of the accused has been removed. She goes on to state that for this purpose she had taken a loan of Rs. 1000/-for engaging a lawyer. If that was so and she was really scared of the accused she would not have made the statement before the court implicating the accused. She does not state that now her fear of the accused has been removed. It may also be stated that during the course of the trial, the accused was already on bail and if there was such a terror as stated by her, she could not have dared made this statement before the court and, therefore, the inference is irresistible. That the affidavit was not on account of the fear of the accused. It is also difficult to believe that for filing such an affidavit she would have spent a sum of Rs. 1000/- from her own pocket as alleged by her. On the other hand, it appears that she is a woman who can be purchased and she can make divergent statement at divergent time as it suits her. It may also be mentioned that Ganesh Lal, Advocate, who had prepared this affidavit at the instance of Smt. Mohini, has appeared on behalf of the accused and has stated that Smt. Mohini got this affidavit prepared from him on the ground that the accused had only given her a beating for which she lodged a report with the police but the police had made out a Disc case of rape against him and, therefore she want to put up an affidavit before the members of her caste because otherwise on the ground of rape the caste follows would out caste her. This also contradicts the contention of Sent. Mohini that she had filed that affidavit on account of the fear of the accused. The learned Sessions Judge was, therefore, not right in observing that the filing of this affidavit does not detract from the evidence of Smt. Mohini. 14. The learned Sessions Judge has also observed that this affidavit only amounts to a previous statement and unless the deponent was contradicted with this previous statement, this statement could not be used against her but this observation also does not appear to be correct in the circumstances of the case. The affidavit had been put to Smt. Mohini and she admitted having filed the same. The affidavit had been put to Smt. Mohini and she admitted having filed the same. Thereafter it was not necessary for the accused to contradict her with any part of the affidavit because it amounted to an admission. Looking to all these circumstances, I am clearly of the opinion that the evidence of Smt. Mohini is not at all reliable and when it is not corroborated by any material evidence much less medical evidence no reliance can be placed upon it. The presumption arising out of the denial of consent under section 114 (A) of the Evidence Act stands completely rebutted by the circumstances pointed out above. The conviction of the appellant cannot be based on such evidence. 15. I, therefore, accept this appeal, set aside the conviction and sentence passed against the appellant by the learned Addl. Sessions Judge, Rasamand and acquit him of the offence under section 376 IPC. The accused is in custody and shall be released forthwith if not required in any other case.Appeal allowed. *******