JUDGMENT 1. - This is an appeal against the Judgment of the learned Sessions Judge, Sri Ganganagar dated 15-11-1978 whereby the learned Sessions Judge has convicted and sentenced the accused-appellants Maliksingh & Heera as under:- S. No. Name of the accused Conviction Sentence 1. Maliksingh 376 IPC to undergo rigorous imprisonment for 4 years 2. Heera 376/34 IPC to undergo rigorous imprisonment for 4 years 324 IPC to undergo rigorous imprisonment for one year Both the substantive sentences where ordered to run concurrently. 2. The facts necessary to be noticed for the disposal of this appeal briefly stated are: that on 1.3,1978, at about 1.15 PM, the prosecutrix Mst. Rani accompanied by PW1 Mst. Mana, PW2 Mst. Panchi and PW3 Gopiram went to the filed of Labhsingli Rahi to cut and collect the grass. There, it is alleged that accused-appellants Maiiksingh and Heera came and accused Maliksingh caught hold of Mst. Rani and thrown her in the mustered filed and then committed rape on her. Mst. Panchi and Gopiram, who are the kids of 10-12 years were asked to in away by the accused-persons. It is alleged that PW 1 Mst. Mana tried to intervene, thereupon accused Heera inflicted a sickle blow on her and then caught hold of her. The kids ran away to the village and informed their father PW 4 Manaram, who accompanied by Netram came to the field but on the way, they met Mst. Rani and Mst. Mana who related the entire incident to them Kaursingh (PW 7), who was so following them, came near them and he too was told the details of the incident. The report of the incident was lodged by Mst. Rani at P.S. Matilirathan at about 2.15 PM i.e. soon after the occurrence. A case against the accused-persons was registered. Mst. Rani was got medically examined for ascertaining the commission of rape as also her age. The accused-persons were also got medically examined. The injuries of Mst. Mana were also got medically examined. After investigation, a case against the accused-persons was challenged in the Court of Judicial Magistrate, Sri Ganganagar, who committed it to the court of learned Sessions Judge Sri Ganganagar for trial. After trial, the learned Sessions Judge has convicted and sentenced the accused-persons as aforesaid. Hence this appeal. 3. I have heaxd Mr. N. Gaur. learned counsel for the accused-appellants and Mr. After trial, the learned Sessions Judge has convicted and sentenced the accused-persons as aforesaid. Hence this appeal. 3. I have heaxd Mr. N. Gaur. learned counsel for the accused-appellants and Mr. R.K. Soni, learned Public Prosecutor for the State. I have meticulously gone through the record of the case. 4. Mr. N. Gaur, the learned counsel appearing for the accused-appellants has submitted that the learned lower court has erred in not discussing the medical evidence at all. According to him, it is a false case that has been instituted against the accused-persons. He has submitted that if at all, any cohabitation has been taken place it has taken place with the honest of the prosecutrix otherwise the prosecutrix, who has been ravished on the rough ground in a field where the mustared crop was standing, must have received certain injuries. He has submitted that it is a case were the boy (accused) and the gril (prosecutrix) both are almost of the same age and if the gril (prosecutrix) has been forcibly raped, she crust have pre-persistence and that must have caused injuries to her The report of the incident has been lodged soon after the occurrence and the prosecutrix has been medically examined on the same day and the Doctor has reported that no injuries were Maliksingh Heera present on her body or on her genital parts. Her external appearance was healthy and vestibule and clitorides were also healthy. The human was corned and it was represented by old tegs. The Vulva and vagina were reported to be healthy. The Vagina admitted two finger and was patulous The Doctor has reported that the public hairs and clothes were not matted with semen. Her clothes were not found torn. Two veginal smear were taken and they were sent to the Pathologist and it was reported by the Pathologist that there was no evidence of spermatozoa in the vaginal smears of Smt. Rani. Mr. N. Gaur, the learned counsel appearing for the accused-appellants has further submitted that it has been stated by P.W. 2 Mst. Panchi that accused Heera came half an hour after the occurrence and he did nothing except he caught hold of the hands of Mst. Mana. Later, in her cross-examination, she has stated accused Heera arrived there at the time when Maliksingh was committing rape on Mst. Rani. According to Mr. Panchi that accused Heera came half an hour after the occurrence and he did nothing except he caught hold of the hands of Mst. Mana. Later, in her cross-examination, she has stated accused Heera arrived there at the time when Maliksingh was committing rape on Mst. Rani. According to Mr. Gaur, it is clear from the statement of P.W. 2 Mst Panchi that initially accused Maliksingh was not accompanied by accused Heera He arrived there either half an hour after the occurrence or at the time of committing rape on Mst. Rani and, therefore, no question of common intention between accused Heera and accused Maliksingh arises so far as the commission of rape is concerned. He has further submitted that Mst. Panchi has stated that the injuries received by Mst Mana were caused Maliksing and not by accused Heera. On being questioned by the Court, she has stated that accused Heera caught hold of the hands of Mst. Mana but she did not say that the injuries were inflicted by accused Heera to Mst. Mana. He has further submitted that even from the testimony of P.W. 3 Gopiram, it can be ascertained that at the time of the occurrence, accused Heera was not there because in the last line of his cross-examination. P.W. 3 Gopiram has started that "I do n t know, how much time later accused Heer3 came there." Mr Gaur has submitted that even P.W. 7 Kaursingh has stated that Mst. Mana told him that injury on his right hand has been inflicted by accused Maliksingh. when she was trying to rescue Mst. Rani who was caught by accused Maliksingh. Later, in his cross-examination, he has stated that both the accused-person have inflicted injuries to her. Mr. Gaur has submitted that actually, Mst. Mana has received one injury and so, the infliction of one injury by two per ones is not possible. He has submitted that from the above material, it is clear that accused Heera has not participated in the occurrence. 5. Mr. R.K. Soni, the learned Public Prosecutor for the State has submitted that the learned lower court has given sound reasons to accept the testimony of the eye witnesses and in view of those reasons, the medical testimony need not be gone into. According to him, Mst. 5. Mr. R.K. Soni, the learned Public Prosecutor for the State has submitted that the learned lower court has given sound reasons to accept the testimony of the eye witnesses and in view of those reasons, the medical testimony need not be gone into. According to him, Mst. Mana has categorically stated that injury on her right hand has been inflicted by accused Heera and be was present at the time of the occurrence and this injury was inflicted by Heera when she tried to intervene and stop accused Maliksingh from committing rape on Mst. Rani. 6. I have considered the rival submissions made at the bar and I am of the opinion that the convictions and sentences recorded against the accused-appellants cannot be sustained. The prosecutarix Mst. Rani is a young lady of about 17-18 years of age. She is habituated to sexual intercourse, the accused appellant Maliksingh has given his age to be 15-17 years and the Court recorded his age to be 20 years. Linder these circumstances, this lady who was aged about 17-18 years should have offered resistance, if she was being ravished forcibly, that she was lifted by accused Maliksingh and later thrown in the field and then the rape was committed on her. She has also stated that she put resistance and tried to release here self from the hold of accused Maliksingh, which means that the resistance was offered. It has come in the evidence of the S.H.O. and other Motbirs that the mustered crop was broken in an area of 5ft at the place of the occurrence. Thus, when she was raped on a hard ground, certain injuries must have been received on her body, if she has put any resistance. In this respect, I place reliance on a decision of this Court in Chotiya v. State, 1952 RLW 289 ; wherein it has been held that the marks of injuries must be expected on parts coming into contact with ground and not on cheek. It has also been held by a learned single Judge of the Allahabad High Court in Puttan v. State of U.P., 1972 Cr. It has also been held by a learned single Judge of the Allahabad High Court in Puttan v. State of U.P., 1972 Cr. L.J. 270 , wherein the accused subjected to a girl to sexual intercourse in a field on uneven and rough ground, the complete absence of any injury or i scratches on the person of the accused and the victim shows clearly that the intercourse was not forcible and the girl must have been a consenting party. Puttaos case (supra) applies on all the fours with the facts and circumstances of the present case. 7. Mr. Gaur drew my attention to a decision of this Court in Shri lal v. State, 1985 Cr. L.J. (Raj.) 397 : wherein it has been held that to record the conviction under S. 376 IPC, penetration has to be proved. In this case, it is very doubtful whether any rape has taken place because the veginal smoars were found to be totally devoid of spermatozoa. It is not the case of the prosecutrix that she had washed out the semen that has been discharged by the accused Maliksingh, while committing rape on her. Even if. she has tried to clean her legs with the leaves of mustard crop, there cannot be the total absence of a spermatozoa and so. if there has been any intercourse, that must have been done with the consent of the prosecutrix, Thus, in my view, the learned lower court has failed to consider this very strong ground based on the medical testimony, which negatives the theory of the commission of rape I, therefore, feel that the learned lower court has erred in convicting and sentencing the accused appellant Maliksingh under S. 376 IPC. 8. So far as accused-appellant Heera is concerned, Mst. Panchi has stated that accused Heera came after half an hour of the occurrence. According to her, Mst. Manas injury has not been inflicted by accused Heera. Even according to P.W. 3 Gopiram. accused Heera did not arrive there till he was there. According to Mst. Panchi, and P.W. 7 Kaursingh, the injury on the right hand of Mst. Mana has been inflicted by accused Maliksingh and not by accused Heera, Rather, it appears that none of these witnesses met Mst. Rani on the way, as per the prosecutrix Mst. Rani herself. accused Heera did not arrive there till he was there. According to Mst. Panchi, and P.W. 7 Kaursingh, the injury on the right hand of Mst. Mana has been inflicted by accused Maliksingh and not by accused Heera, Rather, it appears that none of these witnesses met Mst. Rani on the way, as per the prosecutrix Mst. Rani herself. I, therefore feel that the learned lower court has erred in convicting and standing the accused-appellant Heera for the offence under sections 376/34 and 324 IPC. 9. In the result, I accept this appeal and set aside the conviction and sentence of the accused-appellant Malik Singh under S. 376 IPC and of accused Heera under sections 376/34 and 324 IPC. The accused-appellants Maliksingh and Heera are on bail, they need not surrender to their bail bonds.Appeal allowed. *******