JUDGMENT (ORAL) M.S. Ratnaparkhi, J. - The order of conviction and sentence recorded by the Additional Sessions Judge, Gondia on 29-5-1985 in Sessions Trial No.5 of 1984, convicting the accused appellant of the offence punishable under section 376 of the Indian Penal Code and sentencing him to suffer Rigorous Imprisonment for three years, has been challenged in this appeal. 2. The accused-appellant and the victim Sarjabai (P.W.1) are the residents of the same village. It is the case of the prosecution that on 23rd July 1983, Sarjabai took the cattle for grazing near the field of the accused. One of the cows from the herd entered "into the field of the accused. It was about 2 p.m. The accused called her and asked her to take away the cow. She, however, refused to go inside the field. The accused came near her, lifted her and took her inside the field. He then loosened her sari and committed sexual intercourse with her. She raised cries, where after her son, who was grazing his cattle at long distance, came. Then they started for the village. In the way, she met one Beniram to whom she reported the incident She went to the police Patil where the First Information Report (Exh-16) was scribed. Then she went to the police station and lodged the First Information Report She was subjected to the medical examination. On due investigation, charge-sheet has been put up against the accused accusing him with the offence of rape. 3. The learned Additional Sessions Judge framed the" charge under section 376 of the Indian Penal Code. On recording the evidence, examining the accused and on hearing both the counsel, the learned Additional Sessions Judge came to the conclusion that the ocular testimony of the prosecutrix Sarjabai (P.W. 1), duly corroborated by the circumstantial evidence was sufficient enough to lead him to the conclusion that it was the accused who committed sexual intercourse with the prosecutrix. With this finding he convicted the accused and sentenced him to the term of imprisonment detailed in the opening paragraph of this judgment Feeling aggrieved with this order of conviction and sentence, the appellant-accused has come up in appeal. 4. Mr. Dhande, who was appointed to defend the appellant, has taken me extensively into his field. According to her, her son was about 2-3 furlongs away from her then. 4. Mr. Dhande, who was appointed to defend the appellant, has taken me extensively into his field. According to her, her son was about 2-3 furlongs away from her then. She also states that she was in the field of the accused for about 10 minutes, but she could not raise any shouts because her mouth was shut. According to her the accused had pressed her mouth by both of his hands. A suggestion has been given that she was a consenting party, but she has denied this suggestion. The evidence of the prosecutrix, taken to its face value, thus shows that while she was standing outside the field, the accused called her, but she refused to go. Thereafter the accused lifted her, took her inside the field, then fell her down on the ground and committed sexual intercourse with her. She has also stated that she could not raise any cries because her mouth was gagged by the accused with both of his hands. A suggestion of consent was given. That has been denied. It is in her own testimony that some people were working in the fields in the vicinity. This version is coming from the mouth of the prosecutrix about 21 months after the incident. Immediately after the incident, what she stated about the incident is found in black and white in Exh. 16. In Exh-I6 she stated that while she was standing alone outside the field of the accused, the accused molested her and forcibly committed sexual intercourse with her, as a result of which her clothes have been tom. This is in short her version imme3iately after the incident. 7. The prosecution has examined Narayan Bopche (P.W.2), who is a police Patil and who has prepared Exh.-16. According to him, the prosecutrix came to him and narrated the incident to him which he got reduced to writing vide Exh-16. He further states that the prosecutrix reported to him that the accused had committed rape on her. At that time he found that the sari was loosened and there were some stains visible on the sari of the prosecutrix. Thereafter according to him, Sarjabai sat on the cycle of Onkar and she was taken to the police station, Amgaon, which is 10 miles away. The evidence of this witness shows that immediately after the incident, Sarjabai reported the matter to him. Thereafter according to him, Sarjabai sat on the cycle of Onkar and she was taken to the police station, Amgaon, which is 10 miles away. The evidence of this witness shows that immediately after the incident, Sarjabai reported the matter to him. He prepared Exh-16 and at that time he noticed some blood stains on the sari of Sarjabai and that the sari had been loosened. 8. Sitaram (P.W. 3) is the son of the prosecutrix. He was a child unaware of the sanctity of oath and, therefore, no oath was administered to him. He states that on the date of the incident, he was grazing his own cattle at a distance of about 60 to 75 feet from his mother. After sometime he heard the shouts of his mother: "Dhawa, Dhawa". He rushed to the spot, where he found his mother weeping. His mother reported to him that the accused had outraged her modesty. "Be ijjati kelt' He also states that he found the kasta of the mother loosened. He status that he and his mother started towards the village where they came across Beniram Pardhi and the mother reported the matter to him. He is not an eye-witness to the incident, but he reached the spot only after hearing the shouts i.e. after the act was over. There is nothing in his evidence to show that the accused was present there. 9. Dhanirarn Beniram has been examined as P.W. 6. He states that while he was sitting at the house of Narayan Mistri, he saw Sarjahi coming from the side of the jungle and she told him that the accused had raped her. 10. This is in all the evidence led by the prosecution as far as the actual act is concerned, needless to say, at this state, that the prosecution is relying mainly upon the ocular testimony of the prosecutrix, who has given the account of the occurrence. 10. This is in all the evidence led by the prosecution as far as the actual act is concerned, needless to say, at this state, that the prosecution is relying mainly upon the ocular testimony of the prosecutrix, who has given the account of the occurrence. The learned Additional Sessions Judge found that the evidence of the prosecutrix was ably corroborated by her subsequent conduct He also found that in view of the amended section 114-A to the Evidence Act,- which lays down that in a case of rape when a question arises whether it was without the consent of the woman alleged to have been taped and the woman states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent What was urged before the trial Court was that the prosecution came with the case that it was without a consent. The defence suggested that there was a consent and the woman stated that she had not consented. The Court was, therefore, called upon to raise presumption under section 114-A of the Evidence Act and the Court rightly raised this presumption. At the initial stage of this judgment, I have particularly taken a note of the date of offence, i.e. 23rd July 1983. Section 114-A of the Evidence Act came to be introduced in the statute book by amendment to the Criminal Law Amendment Act and this amendment carne into force on 25-12-1983. There was an overall amendment, particularly regarding the sexual offences. This amendment came on the statute book with effect from 25-12-1983. What was urged on behalf of the appellant was that the trial Court has given retrospective effect to this amendment inasmuch as though the law was amended on 24th December, 1983, it was applied to an occurrence which took place on 23rd July 1983. 11. The question raised before me was whether this was permissible. It is true that section 14-A of the Evidence Act does not create any substance in favour of the accused. It only creates rule of evidence. A presumption has been created under the statute when some circumstances are established. This presumption is definitely against the interest of the accused. The question that arises at this stage is whether such presumption which goes against' the accused can hade a retrospective operation. It only creates rule of evidence. A presumption has been created under the statute when some circumstances are established. This presumption is definitely against the interest of the accused. The question that arises at this stage is whether such presumption which goes against' the accused can hade a retrospective operation. It is a long and well established principle that such law cannot have a retrospective operation. Its operation is always prospective. This law will be made applicable when the: incident occurs after 25-12-1983. It can not be attracted if the occurrence takes place before that date. In these circumstances, the Trial Court was not quite justified in applying the presumption under section 114-A of the Evidence Act to the facts of the present case. If this presumption is taken away, then what remains is the ocular testimony of the prosecutrix. That testimony shall have to be scrutinised on the background of the law existing then. The law which was existing when this offence is alleged to have taken place was that the consent could be express as well as implied and the circumstances that are established on record could be taken into consideration for scrutinising the theory of consent. It will, therefore, be necessary to find out whether the ocular testimony on the prosecutrix gets sufficient corroboration from the circumstances. It is in the testimony of the prosecutrix that while she was standing outside the' field, the occurence came there, lifted her and took her inside the field, fell her on the ground, loosened the kasta and then committed the sexual intercourse with her. This is in short the state of evidence. 12. The prosecutrix is coming from the village. She is pursuing the profession of grazing and looking after the cattles. She is aged about 43 years, a well-grown up lady. The accused also appears to be person coming from the rural areas and he was about 45 years old then. We are thus confronted with a case where a young man of about 45 lifts a young lady of about 40-43 years, takes her inside the field and commits rape on her. The prosecutrix says that it was without her consent. What conduct should we expect in a normal course? Should she offer any resistence or raise any cries so that the persons in the vicinity could be attracted? The prosecutrix says that it was without her consent. What conduct should we expect in a normal course? Should she offer any resistence or raise any cries so that the persons in the vicinity could be attracted? What she states is that she did not raise any cries, because her mouth was gagged by the accused and can we accept this evidence of her. A young lady of about 40-43 is being lifted and taken to some place. Could the accused do it by only one hand? He must have lifted her by both the hands and with all force at his command. In fact his hand could not have been available for gagging the mouth because he was lifting the body weight against the will of the prosecutrix. In these circumstances, the non-raising of the cries and non-offering of any resistence is inconsistent with the story that she was not a consenting party. 13. Another circumstance which has crept on record is also important She was fallen on the ground which had a rough surface and then sexual intercourse was committed against her will. To repeat it once again, she was on the ground which had a rough surface. It was a field and not a house. There was absolutely no injury either on her thighs or her back. The doctor who examined her immediately after the incident does not say that there was an injury on either the back or the thighs. The doctor only found one lacerated wound on her left ankle joint. The prosecutrix on the other hand says that there were injuries on her back. This story is negatived by the testimony of the Dr. Shamla S. Mohan (P.W. 7). Thus the medical evidence has a strong tendency and potentiality to negative her story in the box. 14. The prosecutrix further says that the accused had a complete coitus with her and as a result of this there were blood stains and semen stains saturated on her sari. The sari came to be sent to the Chemical Analyser. The Chemical Analyser did not find any stains on this sari. He, however, found some blood stains on the sari. The prosecution wants to treat this as a corroborative circumstance. However, there are two circumstances which do not permit the Court to treat this circumstance as a corroborative circumstance. The sari came to be sent to the Chemical Analyser. The Chemical Analyser did not find any stains on this sari. He, however, found some blood stains on the sari. The prosecution wants to treat this as a corroborative circumstance. However, there are two circumstances which do not permit the Court to treat this circumstance as a corroborative circumstance. Firstly the doctor has opined that the blood stains on the sari of the prosecutrix maybe because of the menstruation. No question has been asked to the prosecutrix while she was in the box to negative this view. The other circumstance 'that is practically established on record is that the prosecutrix had suffered a lacerated injury on the left ankle joint and the accused in his examination has suggested that the blood stains flown from this lacerated injury might have accumulated on her sari. Thus the finding of the blood stains on the sari do not necessarily corroborate the version of the prosecutrix that because of the rape, her sari was stained with blood. 15. The pubic hairs and the smegma were obtained and the slides were sent for chemical analysis, but the Chemical Analyser did not find any spermatozoa, either alive or dead on the slides. This circumstance is more vocal particularly in view of the testimony of the prosecutrix, that there was a full coitus. 16. This is a case where the prosecution wants to rely on the sole testimony of the prosecutrix. The law permits the conviction on the sole testimony, but what the law requires is that, such testimony must contain hundred per cent truth. A corroboration to the testimony can be had from the circumstantial evidence and here, in this case, we have the circumstantial evidence which rather than corroborating the ocular testimony of the witnesses has a tendency of contradicting that testimony. In the circumstances, the omission on the part of the prosecutrix to raised any cries knowing full well that she was being taken away for some illicit purpose, an omission on her part to resist the act (which can be inferred from the injuries) and the omission to find seminal stains and spermatozoa on the slides or on the clothes (as is evident from the report of the Chemical Analyser) are the circumstances which have strong tendency to support the conclusion that she should be a consenting party. The rule of evidence indicated in section 114-A of the Evidence Act would not be made applicable to this case because the statute was not in existence at all when this offence was committed. We have to find out the truthfulness of the ocular testimony on the background of the circumstances that are prevailing. 17. The learned Additional Public Prosecutor urged before me that here is a rustic woman who is approaching the police Patil and the police station and reporting the matter to them, which matter normally the woman would not do unless she has a very pressing reason for it. The argument rings well to the ear, but it cannot be accepted as a general rule. It is true that a woman will not ordinarily report the matter to the police, which stakes her own honour and respect but accepting this rule as universal rule does not permit the converse to be inferred factually whenever a woman makes 'a report, it has to be accepted. The evidence must command the credibility and that credibility can be assured even by circumstantial evidence. 18. The medical evidence which consists of Dr. Shamla Mohan (P.W. 7) does not help the prosecution in any way. She states that except for the lacerated injury on the left ankle joint, she did not find any other injury on the person of the prosecutrix. Not only that, but the doctor further added that she did not find any evidence of rape. The doctor did find some blood stains. According to her it may be due to menstruation. What the learned Additional Public Prosecutor agitated before me is that the prosecutrix is about 40-43 years old lady, who was married, but - lost her husband about 12 years back and, therefore, the ordinary symptoms may not be visible in her case. It is true that ordinary symptoms may not be visible, but when a woman comes before the Court with a case that there was a full coitus and within hours she approaches the Medical Officer for medical examination, non-finding of the semen stains or such material either on the person or on the clothes, would be inconsistent with the ocular testimony. It is from this point of view that the evidence has to be viewed. It is also interesting to note at this stage that the accused was apprehended and he was examined by Dr. It is from this point of view that the evidence has to be viewed. It is also interesting to note at this stage that the accused was apprehended and he was examined by Dr. Kirpan (P.W. 5) on the same night i.e. within 6 hours after the incident. The doctor did not find anything incriminating. The doctor found some stains on his dhoti, but the Chemical Analyser has given a positive opinion that they were not the semen stains. The doctor was notable to give any opinion as to whether he had committed sexual intercourse. However, the pubic hairs were obtained and they were sent for Chemical analysis, but no favourable report can be obtained by the prosecution. 19. Considered on this background of the circumstantial evidence, the ocular testimony appears incredible. Almost it cannot be believed at its face value. The accused has stated in his examination that the witnesses are deposing lie because of enmity. It may be a vague suggestion, or the vague explanation, but the accused has conveyed what he felt. Quality of evidence that has been brought before us does not permit the Court to take that evidence at its face value with cent per cent credibility. There is at least a doubt regarding the truthfulness of this evidence and the benefit of that doubt must necessarily go to the accused. 20. In the result, I find myself unable to agree with the learned, Additional Sessions Judge that the accused committed sexual intercourse with the prosecutrix. The order of conviction and sentence is bad in law and is liable to be set aside, with the result that the appeal is allowed. The order of conviction and sentence imposed by the trial Judge is hereby quashed and set aside and the accused-appellant is directed to be acquitted. Appeal allowed