JUDGMENT 1. - An allegedly flirt of 20, appellant Tajukhan who in a broad day light, with his alleged last-loaded criminality apart from sex stress in excess over-powered the temptingly lonely prosecutrix of twenty, Geeta, is said to have raped her in hurried heat have come up before this Court against his conviction under Section 376, Indian Penal Code and a sentence of 2. year's R.I. with a fine of Rs. 50/- (in default, 3 months' R I) by quibbling legalities about poor corroboration, consent and false implication to devalue their credibility. 2. The broad facts bearing on the instant act of carnal assault will help delineate the controversy of culpability. This screaming victim in her first information lodged at police station Laxmangarh (Sikar) on 23rd January, 1980, alleged that she was out raged by Tajukhan at 12 in the noon having fulfilled his erotic sortie at height of heap of sand on the road in between Laxmangarh and Sanwali (which is said to have been situated a little beside the road and only about a few hundred meters away from the petrol pump at Laxmangarh where the prosecutrix is alleged to have been going for giving meal to her brother employed at Petrol Pump where she found that the accused who was hiding in the bushes with his cycle, obstructed her fortuitously and forcibly caught hold of her and when she tried to shout and make a hullabaloo, gagged her mouth with his muffler and tied her hands with his waist belt and then dragged her to some distance in a ditch, fell her on the ground and removed her Kirtle and then had full sexual intercourse with her. She further alleged to have make at resistance by her hands and legs in that process of resistance, she alleged, her kirtle torn out apart from her blouse on account of assault of Tajukhan who outraged her enough and at that time, she alleged, Buxaram Balai & Bhopal Singh came running and seeing them, Tajukhan run away to the opposite side with cycle riding on it after untying her hands and legs, with his muffler and waist-belt. She came to the police' station with her father to whom she is alleged to have narrated the story of incident, at 4 p.m. on 23-1-1980. 3. She came to the police' station with her father to whom she is alleged to have narrated the story of incident, at 4 p.m. on 23-1-1980. 3. On the aforesaid facts of incident given First Information, a case for the offence under Section 370, Indian Penal Code was registered against the appellant. After usual investigation and arrest of the accused on 26-1-1980, the accused-appellant was challaned before the Judicial Magistrate, Fatehpur who committed the case for trial to the Court of Sessions, Sikar. The prosecution examined as many as 15 witnesses. No defence was examined. The accused-appellant in his statement under Section 313. Cr.P.C. denied the allegations levelled against him and stated that whole case was full of false story at the instance of Dilsukh-owner of the Petrol Pump where the brother of the prosecutrix has been working and who is also Sarpanch of the village Panchayat. The accused also pleaded that he was employed at his petrol pump at one time and Dilsukh had not paid him any salary in lieu of his work done at the petrol pump in spite of his repeated demands so, Dilsukh was having animus with him because of a tea stall installed by him just near and close to the petrol pump. 4. Learned Sessions Judge held the accused-appellant guilty under Section 376 Indian Penal Code and sentenced him as said in first para of this judgment. Hence this appeal. 5. As a first limb of his argument, the defence counsel vociforcely contended that the findings arrived at by the trial Court are patently erroneous to the facts on record which constituted a false case against the appellant instituted at the influence of Dilsukh, and that apart, the trial Court failed to appreciate various glaring lacunas existed in the prosecution testimony. Second plank of his attack is that the age of the dangler and screaming victim highly improbabilise that the appellant would have dragged dangled and flirted the victim lady of a same age and subjected to rape in the alleged fashion at a scene of occurrence hardly a few meters away from the petrol pump where some crowed of people was expected because of shops situated & established there, as per the admission of the victim and, therefore, if had the victim in fact hubbubed then definitely it would have invited the attention of the persons among crowd near the shops. And these circumstances lead to an inference against the victim that no hue and cry was made by her and in fact, she was & willing and consent party to the culpability. 6. The defence counsel then added by contending that the alleged time (at noon in a broad day light) of culpability looks too importable because; no person would commit rape at noon time in a way closed to the road within few meters of the petrol pump and the shops where the crowd was always expected. 7. Next plank of his contention is that the evidence of the prosecutrix is not corroborative to the medical evidence because she in her statement deposed that she sustained external injuries on her person but contrarily in the medical report, no such injuries have been assigned by the doctor who examined her after the occurrence, and that, the evidence of Buxaram and Bhopal Singh suffers from improvements and embellishments making strength to disbelieve their testimony because, if these witnesses would have been present at the place of occurrence the accused would not have escaped from the scene of occurrence and if at all the accused was outraging Smt. Geeta then in all probabilities, these witnesses would have apprehended the accused and would not have allowed him to run away. Further, the defence counsel added that the evidence of Smt. Geeta is untrustworthy because her testimony that when the accused came to know the presence of other persons he untied her hands and engaged her mouth, is most unnatural if it was in fact rape then the accused would not have untied the hands but instead would have taken to his heels swiftly. 8. At the end, on the totality of the conspectus of the evidence and circumstances of the case, the defence counsel contended [that the credibility of the testimony of the prosecutrix cannot be ruled out as it lacks corroboration, shows consent of the parties in culpability and false implication devaluing their credibility and thus, the learned trial Court acting upon the same as a basis for a finding of guilt against the accused, committed serious error of misconception of law in cases of sexual offences. 9. Contrarily, the learned Public Prosecutor contended that on the totality of the evidence and material on record, the trial Court was justified in holding the accused-appellant guilty for the offence of Section 376, IPC. 9. Contrarily, the learned Public Prosecutor contended that on the totality of the evidence and material on record, the trial Court was justified in holding the accused-appellant guilty for the offence of Section 376, IPC. According to the learned Public Prosecutor, the statement of Smt. Geeta Devi is full of corroboration with the evidence of Buxaram and Bhopal Singh and the medical report which is positive in nature. 10. I have considered the points raised by the defence counsel and the Public Prosecutor and have perused the entire evidence brought on record. A few facts necessary required to lend up to the conclusion are narrated herein after. Or. S.S. Garg (PW 1) examined Smt. Geeta (victim) and prepared report (Ex. P 1) Naganmal (PW 2) was the ascribe of the report (Ex. P 3) Lekhuram (PW 3) was the attesting witness of the seizure memo (Ex. P 4) of clothes of the victim. Rameshwar (PW 4) was the attesting witness of the articles recovered at the instance of the accused under Ex. P 5 whose attesting witness is Purshottam (PW 5) Alim Khan (PW 6), police constable, stated that he apprehended the accused on 261-1980 at Bikaner Pokharram (PW 7), Police constable stated that he handed over the sealed pockets in the office of the Chemical Examiner. Dr. V.K. Soni (PW 8) has stated that on the basis of the ossification test he, came to the conclusion that the age of Smt. Geeta was about 20 years. Smt. Geeta Devi (PW 9) is the screaming victim. Buxaram (PW 10) stated that he had seen the accused running from the place of occurrence and he chased him and saw the prosecutrix in a ditch-who narrated the incident to him. Kurdaram (PW 11) is the father of the prosecutrix who stated that he alongwith his daughter lodged report and the facts of the incident were narrated by Smt. Geeta Devi to his wife Mst. Teejali (PW 13) is the mother of Smt. Geeta Devi. Tejpal Singh (PW 13) conducted the identification of the articles recovered at the instance of the accused and prepared identification memo (Ex. P 14) at the instance. Bhopal Singh (PW 14) is the witness who met Smt. Geeta Devi after commission of the offence and to whom the facts of incident were also narrated by her. Kishan Singh (PW 15) is the Investigating Officer. 11. P 14) at the instance. Bhopal Singh (PW 14) is the witness who met Smt. Geeta Devi after commission of the offence and to whom the facts of incident were also narrated by her. Kishan Singh (PW 15) is the Investigating Officer. 11. Having benefitted from the enlightenment derived from the findings reached by the learned trial Court, I am of the view that in the instant case, the statements of Dr. S.S. Garg (PW 1), Smt. Geeta Devi (PW 2) Buxaram (PW 10), and Bhopal Singh (PW 14) are acted upon as a basis by the trial Court for a finding of guilt against the accused appellant which calls for a more intrinsical examination than has been done thitherto. 12. Dr. S.S. Garg (PW 1) in Ex. P 1 assigned certain external injuries found on the person of the victim. Smt. Geeta, acting upon them, the trial Court came to the conclusion that these injuries were corroborative piece of evidence in order to infer that the victim was subjected to rape But, in my view, looking to the evidence of Dr. S.S, Garg (PW 1) who is expert and was in a better position to give positive view about rape, the trial Court was not at all justified in drawing inference about rape in the light of the injuries found on the person of victim because, Dr. S.S. Garg (PW 1) neither in his report nor in his statement has given no definite opinion about rape. He only stated that in case vaginal swab is found positive for semen and the clothe worn by her during incident were found stained with semen then the possibility of sexual intercourse and Smt. Geeta Devi being raped could not be denied. It is thus clear that Dr. S.S. Garg (PW P did not give any significance to the injuries on the person of Geeta and on that basis he was not of the view that rape was at all committed on her person. Therefore, the injuries found were not sufficient to draw an inference of rape on the victim. 13. Dr. S.S. Garg (PW 1) further has clearly deposed that a positive opinion could only be given when the report of vaginal swab and the clothe worn by her (Geeta) during incident is found positive in nature. This takes me to the report of the Chemical Examiner (Ex. P 22). 13. Dr. S.S. Garg (PW 1) further has clearly deposed that a positive opinion could only be given when the report of vaginal swab and the clothe worn by her (Geeta) during incident is found positive in nature. This takes me to the report of the Chemical Examiner (Ex. P 22). The Chemical examiner examined the articles recovered from the person of Smt. Geeta Devi and the accused-appellant, and so also vaginal swab of Smt. Geeta. in his report, it was opined that all the articles under items A (I, 2, & 3) B & C (which are mantilla, blouse, kirtle trousers and small bottle containing vaginal swab of Geeta) are negative for semen and spermatozoa. Taking the aid of the report of the Chemical Examiner (Ex P 22) and acting upon it as a basis for a finding of committing sexual intercourse, according to the opinion expressed by the expert witness, Dr. S.S. Garg (PW 1) it can safely be said that there was no possibility of any forceful sexual intercourse with Smt. Geeta and in view of these circumstances, the evidence of Dr. S.S. Garg and the reports (Ex. P 1) & Ex. P 22) bore hostility to the appellant and does not help the prosecution to bring home the offence against the accused rather fortify the plea of false implication to devalue the credibility of the prosecution story. 14. The evidence of Dr. S.S. Garg also belied the testimony of the victim who stated in her evidence that she was dragged by the accused from the read upto the crucial place of incident 30-40 feet away from the road as she alleged, but no external injuries like marks of scratches were found by Dr. S.S. Garg on the person of Smt. Geeta as she in her statement stated to have sustained injuries because of dragging. Even, other injuries stated by the victim have also not been corroborated by the doctor (PW 1), who contradicted the testimony of Smt. Geeta Devi (PW 9). In view of these circumstances, it is essential for me to subject the evidence of Smt. Geeta Devi to a close scrutiny and consider whether the same suffers from infirmities or defects, in a manner so as to make it either unsafe or impossible to base a finding of guilt. 15. In view of these circumstances, it is essential for me to subject the evidence of Smt. Geeta Devi to a close scrutiny and consider whether the same suffers from infirmities or defects, in a manner so as to make it either unsafe or impossible to base a finding of guilt. 15. Geeta Devi (PW 9) in her statement inter-alia, deposed that, while she was going to the petrol pump she was obstructed and caught hold of by the accused-appellant who warned her not to speak otherwise he would kill her but, she made hue and cry whereupon the accused tied her mouth with muffler as a result of which she was not able to make any voice and noise that, she also tried to catch hold of hairs of the accused but he tied her hands in waist with belt and thereafter the accused took her dragging on the southern side of the road and fell her down in a ditch near the boundary of a field and then committed rape on her; that, she made cries and hearing cries Buxaram & Bhopal Singh came at the scene of occurrence and on heating the buzzing sound of foot-steps of these persons, the appellant untied her hands and mouth and ran away riding on his cycle hidden by him; that, the aforenamed persons chased the accused but they failed to apprehend him; and that she was weeping while lying in ditch and at that time, these two persons came at the scene of the occurrence and on being asked by them, she narrated whole incident. 16. In cross-examination, Smt. Geeta Devi (PW 9) inter-alia, admitted that tar road from where she was going and where she was caught hold by the accused, used to remain busy through out day and night, with all sort of traffics passing through that road; that sound of hue could be heard from the place of the occurrence upto the petrol pump where her brother used to work and for whom she was taking meal on the day of occurrence; that, the petrol pump always remained crowded because of a large number of shops being there adjacent to the petrol pump; that, at the beginning, she did not go to the police station alongwith her father who first went to the police station and thereafter she was called there. Then she stated that there were marks of dragging on the road which were shown by her to the police and that Buxaram and Bhopal Singh went back to Laxmangarh after leaving at the outskirts of the village. 17. In my view, the admission wrung out from the witness in cross 'examination show that her story appears to be untrustworthy for these reasons that it is not believable that a person will try to catch hold of a young lady from road which used to remain busy through-out with crowds day and night particularly at 12 O'clock in noon and that too near petrol pump which itself remained crowded with public because of large of shops being situated there and where hubbub could easily be heard in these situations, I failed to understand how could the accused have dared to outrage the victim in broad day light; & that, when her hands and mouth are said to have been tied with muffler & belt on the road this process of trying certainly would have taken time as a lady of same age of 20 years was being tied and if she would have resisted it was not possible that the mouth could remain tied while she was being dragged by the accused and in that situation, muffler could be removed from mouth and the victim was certainly in a position to make hue and cry for help but, as stated above, the victim has stated self contradictory version. As regards lodging the report also, the testimony of the victim is contradictory raising doubt on the prosecution case because according to her testimony, she was called at the police station after the report was lodged by her father where as according to the report (Ex. P 3), itself it was lodged by her. As regards lodging the report also, the testimony of the victim is contradictory raising doubt on the prosecution case because according to her testimony, she was called at the police station after the report was lodged by her father where as according to the report (Ex. P 3), itself it was lodged by her. She stated the police station just near the place of occurrence, In the light of this testimony, her testimony also casts aspect because instead of going to the police station which has been stated to have been near the place of occurrence, she went to her village first accompanied by Buxaram and Bhopal Singh, it is imaginable as to why the victim accompanied by two men did not go to the police station after the occurrence at a lesser distance than her village, and as to why did she send back Buxaram and Bhopal Singh from the outskirt of the village and why did she not take them upto her residence. The position is that the testimony of the prosecutrix cannot be acted upon without corroboration which itself lacks in the case and the version of gagging is only an exaggeration and no reliance can be placed on such a testimony. 18. Another curious feature which casts aspect on the evidence of the victim is that as admitted by the victim (PW 9) the accused had sexual intercourse for half on hour but he did not discharge semen, and in my view, such version was given out by her purposely as she was certain that no semen would be found either on her kirtle or trouser of the accused which were sent for chemical examination whereupon the report was received in negative. It looks too improbable that a full sexual intercourse that too take piece for half an hour would not cast aspect of semen on the trousers of the accused as well as kirtle of the victim which leads to sufficiently infer the either no sexual intercourse took place or that if took place, it was with full consent otherwise the cloth of the parties would have smeared with semen and the prosecutrix could have sustained external injuries apart from internal one because of the alleged forceful intercourse but, as is apparent from the record, there does not appear to have been on her part any attempt at resistance and no such injuries or marks thereof were found on the person of Geeta Devi. Normally, when a woman is subjected to intercourse against her will, some sort of resistance by her with hands or otherwise would be expected. Either the presence or the absence of any marks on the person of the accused on account of any possible resistance by the victim could have shed some light on the matter. It would however, appear that the prosecution has chosen not to seek the aid of any such circumstances. 19. Let me pass on to the evidence of Buxaram (PW 10) which also-does not inspire any confidence and is not sufficient to act upon as a basis for a finding of guilt. Buxaram (PW 10) himself, stated not to have seen the accused committing any sexual intercourse, and he has given a circumstantial evidence against the accused by saying that he along with Bhopalsingh were going towards Laxmangarh through the tar road and at that time, they both heard that a lady was weeping and then turned to her. Thus it is clear that their attention was drawn on the side of place of occurrence only on hearing the sound of weeping and if had the witness not heard the sound of weeping they could not have been the witnesses for this incident. 20. Now, it is to be seen as to whether the sound of weeping was heard by Buxaram and Bhopal Singh and for this purpose also, the testimony of the victim is relevant to a close scrutiny. She deposed that her mouth was gagged with muffler by the accused and the accused and the same was untied after the witnesses came at the scene of occurrence. She deposed that her mouth was gagged with muffler by the accused and the accused and the same was untied after the witnesses came at the scene of occurrence. She also deposed that after her mouth was gagged she was not able to make sound. From this testimony, it becomes clear that there was no occasion for the victim to have made sound of weeping or made hue & cry Bhopal Singh PW 14 in his statement deposed that the accused was wearing trousers on the day of incident and he left the place of occurrence without tying his trousers and left the place handling his trousers and taking his cycle with hands and in that situation, he (witness) along with Buxaram classed the accused but he was not apprehended. In the presence of such a testimony, there can be no doubt that the witness has given false evidence because in the position stated by the witness of the accused, it was not improbable for the witnesses to have caught the accused red handed just near the place of incident & in these circumstances it can be inferred that these two persons were not just near the place of incident at the time when the intercourse is said to have been committed and they are made up witnesses and are prone to exaggerate the matters. Their evidence further becomes doubtful whey they as alleged did not care to see off Geeta devi to her house and they only took her near the village and left her there. Natural aspect would have been all possibility that after such a crime, they would have taken her to her house and have talked to her parents. Such a conduct of these witnesses casts a serious doubt on their testimony as well as prosecution story. It is further incomprehensible as to why they immediately did not in form the brother of the victim who was only a few meters away from the place of incident and was within an easy excess of these witnesses. As said earlier it is not at all explained as to how the accused-appellant could make his escape good. If at all these two witnesses were attracted while the accused appellant was committing rape on Smt. Geeta then in all probabilities they would have apprehended the accused and would not have allowed the accused scot free. 21. As said earlier it is not at all explained as to how the accused-appellant could make his escape good. If at all these two witnesses were attracted while the accused appellant was committing rape on Smt. Geeta then in all probabilities they would have apprehended the accused and would not have allowed the accused scot free. 21. As said earlier, the fact that the mouth and hand of the victim were loosen or untied by the accused after hearing the sound of foot steps of the witnesses, Buxaram and Bhopalsingh. This conduction the part of the accused appellant could only be explained if the whole affair of culpability was without consent. If it was in fact raps then the accused would not have untied the hands but instead would take to his heels swiftly. The case of the prosecution further becomes doubtful due to reason that no person would rape at noon time at a place closed to the road within few meters of the petrol pump where the people at large remain crowded because the shops being situated there. 22. Taking all conspectus of the circumstance narrated above, this possibility cannot be ruled out that the alleged affair was with the consent of the victim and it is rather strenuously supported by the conduct of the victim bearing hostility to the accused. 23. Smt. Geeta devi was a young lady of 20 years and could have easily resisted the carnal assault of sexual intercourse if the same was being committed by the accused who was also of her age. Buxaram is relative of Kurdaram father of the victim. It is thus clear that he is an interested witness and her testimony cannot be believed without corroboration from independent person which, in the facts and circumstances, narrated above, lacks in the present case. 24. Buxaram (PW 10) in his statement deposed that he did not know name of the shop keeper from whom he made purchase and that he is not in a position to locate shop in the market of Laxmangarh and he did not care to know as to whether any report was lodged by the father of Smt. Geetadevi. 25. The evidence of Kurdaram (PW 11) is also discrepant to the testimony given by. Smt. Geetadevi (PW 9) on the point of lodging the report. 25. The evidence of Kurdaram (PW 11) is also discrepant to the testimony given by. Smt. Geetadevi (PW 9) on the point of lodging the report. Kurdaram (PW 11) in his statement admitted that the facts were narrated by Geeta Devi to her mother first and not to him at his instance. Kurdaram (PW 11) in his cross examination admitted that Smt. Geetadevi went to her brother at the petrol pump just after the incident and the facts of the incident were arrested to her brother Triloka (Son of the witness (PW 11). In the presence of this statement a question arises as to why the brother of the victim did not take her to the police station directly which was adjacent to the petrol pump and why Triloka was not produced as witness by the prosecution because his evidence could have shed some light on the matter in comparison to Kurdaram (PW 11) and Mst. Teejli (PW 12) as he was the person who was firstly informed of the incident by Smt. Geetadevi and why real brother did not accompany Smt. Geetadevi to her parents, Further, the testimony of Kurdaram is discrepant to the version given by Nagarmal (PW 2) which states that report was got written at the petrol pump where as Nagarmal (PW 2) deposed that it was written at the police station. Also, the presence of Buxaram and Bhopal Singh becomes doubtful by the testimony of Kurdaram (PW 11) father of the prosecutrix who deposed that his daughter did not name Buxaram and Bhopal Singh as witnesses at the time when the incident was being narrated to him & his wife by Geeta Devi. This fact further fortifies the fact that Buxaram and Bhopal Singh are made up witnesses. 26. The evidence of the prosecution witnesses is discrepant for the point of showing place of occurrence. They have given out the distance of the place of incident from the tar road. Mst. Teejli (PW 12) mother of Smt. Geetadevi who deposed that Smt. Geetadevi came to their house after the incident and initially did not tell anything about incident and the narrated the incident on being asked. This conduct of Smt. Geetadevi shown by Mst. They have given out the distance of the place of incident from the tar road. Mst. Teejli (PW 12) mother of Smt. Geetadevi who deposed that Smt. Geetadevi came to their house after the incident and initially did not tell anything about incident and the narrated the incident on being asked. This conduct of Smt. Geetadevi shown by Mst. Teejli (PW 12) also strengthens the presumption that Smt. Geeta Devi was a consenting party otherwise she could have spoken at the earliest after her arrival to her house and on seeing her parents. Mst. Teejli (PW 12) has admitted that Buxaram is their relative and Bhopal Singh also worked with her son, Triloka and that Buxaram and Bhopal Singh came upto their house and they accompanied Smt. Geeta Devi through out the way. But this part of her testimony is not corroborated by the evidence of Kurdaram (PW 11) Buxaram (PW 10) and Bhopal Singh (PW 14). Obviously in an effort to evade, parry and hide some thing they indulged in equi-vocation. 27. Bhopal Singh (PW 14) deposed that kirtle of Smt. Geeta was smeared with blood which is not the prosecution case and this fact has not at all been disclosed by any of the witnesses and this by itself is sufficient to observe that Bhopal Singh is very much interested person and he tried to falsely implicate the accused by saying such facts in his anxiety to go whole hog to support the charge. 28. Geetadevi and Buxaram have stated that incident took place on the southern side of the road but Bhopal Singh stated that it took place on the northern side of the wall of the filed and that at the time when they reached the scene of occurrence Smt. Geeta Devi was sitting. This part of his version has not at all been corroborated either by Buxaram or by Smt. Geeta Devi. Other infirmities which have crept in the evidence of Bhopal Singh (PW 14) have already been discussed and all these circumstances are sufficient to observe that Bhopal Singh is not a trustworthy witness and his evidence is not worthy of credence. 29. Other infirmities which have crept in the evidence of Bhopal Singh (PW 14) have already been discussed and all these circumstances are sufficient to observe that Bhopal Singh is not a trustworthy witness and his evidence is not worthy of credence. 29. The result which emerges is that the testimony of the prosecutrix cannot be a basis for a finding of guilt and however, in the state of the evidence which has been fully discussed above, it is certainly not possible to agree that the testimony of the prosecutrix suffering from infirmities considered above, should be accepted. And, the prosecution has failed to bring the offence home to the accused and it was a blantant lie. The prosecution witnesses have thus betrayed their true colours and they are of types who in blind loyalty and support to the case of the party calling him would not hesitate to tell lies even in regard to patent facts Thus, the evidence rendered by the prosecution was not so unimpeachable, unblemished and disinterested that it could be safely accepted without corroboration from independent sources. Further more, the prosecution witnesses in their anxiety to go whole hog to support the charge are prone to exaggerate matters And, thus, the trial Court acted upon beyond parameters of criminal jurisprudence in such sexual offences as a basis for a finding of guilt, which requires to be rectified by this court warranting interference in appellate jurisdiction. 30. Net result is that this appeal must succeed and is allowed. The conviction and sentence passed by the lower Court against the accused-appellant, under judgment date 14-10-1980 are, therefore, set aside. The accused appellant is on bail and need not surrender. His bail bonds shall stand cancelled. The record be sent back forthwith.Appeal allowed. *******