JUDGMENT 1. - These appeals having been arisen out of Sessions case No.53/82 of one and the same incident alleged to have taken place on December 19, 1991 of which FIR No.95/81 was lodged at police station Mandana (Kota) against four persons including the present appellants, are being disposed of by this common judgment. 2. In the first information report lodged on verbal report by Smt. Achuki (informant & prosecutrix) it had been alleged that on December 19, 1981 at about 8 p.m. she heard noise of opening a door which was being unbolted, thereupon she, asking as to who was, rushed outside room towards courtyard then one Mangilal asked her about calling of her by one Kishna Gujar, to which she answered that none had been in her house, and she came to the exit door of the house but as soon as she reached to exit door, by catching her hand she was drawn out of her house by Kishna; and thereupon she had clamoured but her mouth was gagged with hand by Mangilal,then she was dragged by Kishna to enclosure of Laxminarain Patel's land situated opposite her house where Devlal & Babu Lai were already waiting. It had also been alleged by Snit. Achuki that in the said enclosure she was moved down to lie on the grass but she continued to uproar then Devlal by gagging her mouth slapped her, thereupon her peticoat was lifted by Kishna who committed forcibly sexual intercourse upon her despite her desist by kicking and legging to Kishna but he was successful in his sexual lust and did not lift himself from her body till he completed sexual intercourse. However, in that meantime, upon hearing some whispering of coming person all the four fled away. Thereafter, she rushed outside the place of Laxmi Narain and at the door, one Lalchand met, to whom also, the incident was narrated and later on, to her husband upon his return. It had also been stated that in the night since there was no conveyance facility available, the report was lodged in the next morning. 3. The police registered criminal case against the present appellants and two others, Babulal & Devlal who have been acquitted by the Sessions Judge under the impugned judgment, for offences punishable under Section 376/34, IPC. It had also been stated that in the night since there was no conveyance facility available, the report was lodged in the next morning. 3. The police registered criminal case against the present appellants and two others, Babulal & Devlal who have been acquitted by the Sessions Judge under the impugned judgment, for offences punishable under Section 376/34, IPC. After usual investigation, the challan was presented in the court and after committal proceedings, besides co-accused (who have been acquitted after trial), Kishna & Mangilal (present appellants) were charged of offences punishable under Sections 376 & 342, IPC, and 376/34/109, IPC, respectively, to which they denied and pleaded not guilty by claiming trial. After recording the evidence adduced by the prosecution and explanation of the accused under Section 313, Cr.P.C., and after hearing both the parties, the learned trial Court acquitted two co-accused (named above) but convicted & sentenced the present appellants as under: 1. Kishana U/s 376, IPC Five years' R.I. with a fine of Rs.500/- (in default further two months' S.1.) U/s 342, IPC No sentence was awarded 2. Mangilal U/s 376, r.w.S. 109, IPC Two years' R.I. with a fine of Rs. 200/- (in default, further one month's S.I.). 4. Hence these appeals. 5. Having heard the rival contentions on behalf of the parties, and perused the impugned judgment, I find that the learned trial court based its findings so as to convict the present appellants, solely upon the evidence of the prosecutrix, which has been assailed by the learned counsel for the appellants by urging that her evidence is not of sterling worth because, the lower court erred in placing sole reliance upon her evidence particularly when her testimony has been disbelieved as against co-accused, named above, who have been acquitted by it, without distinguishing the facts and circumstances of the case as against the present appellants, despite its own findings in the impugned judgment that the prosecutirx has exaggerated her testimony in whole hog to support her case. 6. Learned counsel added that admittedly, as would be evident from the impugned judgment, itself, the evidence of prosecutrix stands uncorroborated by any independent source of evidence much less circumstantial evidence goes against her testimony, itself, and that being so, her evidence could not have been believed by the trial Court as against the present appellants also. 7. 6. Learned counsel added that admittedly, as would be evident from the impugned judgment, itself, the evidence of prosecutrix stands uncorroborated by any independent source of evidence much less circumstantial evidence goes against her testimony, itself, and that being so, her evidence could not have been believed by the trial Court as against the present appellants also. 7. Conversely, learned Public Prosecutor controverting the contentions raised on behalf of the accused, argued that the conviction could be based solely upon the testimony of the prosecutrix and no corroboration was required of any independent source, and in that view of the matter, the lower court was justified in convicting the appellants on the sole testimony of the prosecutrix. 8. In examination-in-chief, Smt. Achuki (PW1) stated that Kishna Gujar lifted her petticoat and inserted his penis in her vagina and his semen was discharged into her vagina whereas in her cross-examination she gave out that during sexual intercourse by Krishna, the blood was being oozed out of her vagina thereby her cloth, i.e. petticoat smeared with blood. I may state that the doctor who medically examined the prosecutrix has not stated that during her examination, he found her in state of menstruating, nor he found any spots of either menses of blood on her petticoat or cloth, inasmuch as I find that there is no circumstance on record either in the evidence of the prosecution witnesses or in the documents prepared by the police during investigation to show that her petticoat or cloth were found duly smeared with blood either when she came to lodge in report at the police station or when she appeared before the doctor during her medical examination or when her cloth or petticoat were seized for being onward transmission to the chemical examiner for examination. Further neither any blood or its spots nor any human semen or blood has been found by the chemical examiner, in the vaginal smear, or vaginal swab, as would be evident from the chemical examiner's report (Ex.P.12A). On the one hand, seizure memo of petticoat (Ex.P.3) gives out that there was a blood spot on the petticoat but contrarily, there is no corroboation to it in the report (Ex.P.12A) because it states that human semen was detected on Ghaghara (Petticoat) and Chaddi (underwear of the accused), and it does not state that any blood was detected on these articles. Similarly, seizure memo of the petticoat (Ex.P.3) does not depict of detecting either any human semen or its spot on the petticoat but, as wrung out from the chemical examiner's report (Ex.P.12A), human semen was detected on the seized petticoat, which casts smack and doubt on the seizure of the petticoat and the report of the chemical examiner. And it is fatal to the prosecution. 9. According to the evidence of the prosecutrix, she was dragged and taken to the enclosure of Laxminarain (cattle pond) where she was laid on the grass land and then was raped. Her testimony (above) appears to be believed in view of other prosecution evidence, such as, in the site plan (Ex.P.2) there is no mention that there has been any grass or fodder of the cattles laid in the enclosure or the place of occurrence, inasmuch as it is her version in her evidence that she desisted when Krishna prompted to rape her by kicking or legging and by her physical efforts by pushing him in order to get her relieved from him, while laying on the grass land, and in my view, in this state of evidence, it cannot by any stretch of imagination be believed or inferred that she could not have sustained any bruises or abrassions or contusions during her struggling efforts to get her relieved from him, either on her back or hips or any part of the body including hands and legs, had there been any incident of forcible commission of rape upon her person in the circumstances narrated by the prosecutrix herself. The site plan gives out that during site inspection there has been no grass either grown or laid and that apart, there has been no signs of any occurrence found. The doctor who medically examined the prosecutrix found no injury on the body or back part of the prosecutrix so as to show that she sustained injuries at the scene of occurrence during forcible commission of sexual intercourse upon her, or at the time of her dragging to the place or scene of occurrence. It is her version that during the course of forcible sexual intercourse by Krishna and when she desisted to the efforts of commission of sexual assault, other accused persons were not nearby them but were standing far. It is her version that during the course of forcible sexual intercourse by Krishna and when she desisted to the efforts of commission of sexual assault, other accused persons were not nearby them but were standing far. It makes clear that other accused were not holding her by their physical force or any duress and during the commission of forcible sexual intercourse, at best she could have been prompted or dealt with by Krishna but was not under any such duress or threat (because there is no prosecution evidence that the accused were armed with any sharp or blunt weapon) which might have made her handicapped or unabling her to raise any hue or cry attracting any person, and it is obscured herein. 10. Further, the prosecution evidence of Laxminarain duly corroborated by Motilal shows that Laxminarain used to put lock at the door of the enclosure after sun-set. It is not the version of the prosecutrix that she was taken to the said enclosure by lifting her over the fencing enclosing but according to her, she was taken there through the exit door where after the incident, she met one Lalchand. If the aforesaid circumstances are believed then there is no explanation from the prosecution side as to how the prosecutrix was taken by the accused persons allegedly to the enclosure which was evidently and duly locked. However, such an evidence also makes a doubt on the veracity of the evidence of the prosecutirx who has admittedly exaggerated her version on material particulars obviously because of her whole hog and anxiety to support herself for the impugned allegation. 11. The prosecutrix gave out two versions in her evidence. First is in examination-in-chief that when Mangilal called her second time, she came in the chowk and asked as to who was, to which Mangilal gave out his name then she asked as to what was the task and Mangilal asked her that Kishna was calling her out to which, she refuted on the pretext that there had been nobody in her house but Mangilal insisted to come out only for a five minute and thereupon she rushed to the exit door where Kishna by catching her hand drew her out of the door. Second version is in cross-examination that before the impugned incident, she had no acquittance with any of the accused nor she knew them ever before, nor she had any contact or dealing with them; and that there has been one driver named as Kishna, so he apprehended that it was that Kishna Driver and thereby she made no further enquiry as to who in fact Kishna was. In cross-examination she further stated that when she went to the exit door, Kishna (accused caught hold of her left hand, and in second breathe, she stated that Mangilal opened the door then she heard and when she came in the chowk till then Mangilal had already entered in the chowk. Then in the next line, she stated that prior to the impugned incident she even never knew names of the accused. 12. According to the second version wrung out from her cross-examination, in case the accused persons were not known and were strange to the prosecutrix, then I fail to understand as to why the prosecutrix came out of her house on the call of Mangilal (who according to second version was not ever known to her prior to the incident), in the night hours that too during absence of her husband from the house. It casts doubt on the version of the prosecutrix.Conversely, as per first version wrung out from the examination-in-chief, the prosecutrix was knowing each and every accused with their respective names and that being so, she narrated the story as if the accused were ever before known to her and in that state of version, it is clear that she accompanied the accused persons at her own instance because, there is not only absence of injury of dragging or laying her down on the grass land (which was required to be corresponding to her allegation of dragging etc. narrated in earlier part of this judgment), but also lack of corroboration on material particulars of the story put up by the proscutrix in her evidence. 13. From the site plan, it appears that the house of the prosecutrix was surrounded by many a houses. According to the evidence of the prosecutrix, she was forcibly taken and dragged by the accused (Kishna) to the scene of occurrence from her house. She has exaggerated her version by stating that she was taken by lifting her by all the accused. According to the evidence of the prosecutrix, she was forcibly taken and dragged by the accused (Kishna) to the scene of occurrence from her house. She has exaggerated her version by stating that she was taken by lifting her by all the accused. If her version is that she was lifted by all the accused, then her version in second breathe given out in her examination-in chief that Mangilal gagged her mouth by his hands, cannot be probable. If all the accused had been lifting her there was an occasion for her to shout or uproar during her lifting. Secondly, her version that she was lifted by Devlal and Babu is belied and uncorroborated by other evidence of the prosecution witnesses including her husband because according to that, Devial & Babu were not accompanying from the exit door as was being stated by the prosecutrix, but they joined Kishna & Mangilal at the gate of Laxminarain's place and that being so, believing that part of the version, Devlal & Babu's presence & their commission was disbelieved and they were acquitted. Therefore, the story remains as if the prosecutrix was dragged and taken to the enclosure (scene of occurrence) but such a story as detailed out by the prosecutrix (narrated above) cannot be believed in view of the circumstances referred to above because there is no corresponding and corroboratory evidence to establish it. Thus, no hullabaloo to attract the neighbouring residents by the prosecutrix makes her conduct quite unnatural. Had she raised any hue and cry then it could have attracted the neighbouring persons and the prosecution would have independent witnesses to wring out true version. But it is lacking herein and thereby it caused serious doubt casting speck on the prosecution version not capable of any credence so as to convict the accused in the circumstances. 14. Had she raised any hue and cry then it could have attracted the neighbouring persons and the prosecution would have independent witnesses to wring out true version. But it is lacking herein and thereby it caused serious doubt casting speck on the prosecution version not capable of any credence so as to convict the accused in the circumstances. 14. As already pointed out above, in her cross-examination, itself, the prosecutrix conceded that the accused were not ever before known to her but, conversely, after some cross- examination, she further conceded by stating that Lalchand was not her uncle and he was uncle being of same caste; that, the accused were known to her meaning thereby that their names were known to her so, she had not told Lalchand that rapers were four in number but she told him and gave out names of the accused; and that she knew of the accused because they used to purchase some grocery items at the general stores where they were seen by her, inasmuch as Mangilal had a grocery shop where all the four accused used to sit, so they were known to her. 15. In this view of the evidence, her evidence does not inspire confidence. It is thoroughly unbelievable. The prosecutrix in her evidence admitted at one place that she was caught hold by remaining three accused when Kishna had been committing rape upon her. But at another place she deposed that other accused except Kishna were standing far. If here version is taken at face value, then it cannot be believed that the accused Kishna had committed rape forcibly upon the prosecutirx in the presence of three others. Similarly, at the last sentence in her statement during cross-examination,she admitted that when Kishna lay down her , she sustained assault on account of her forcible laying down, at her back. But, curiously enough, her medical examination does not depict even a minor injury. There was no reason for the accused to have committed the offence at the place narrated by her in the circumstances given out by her and other witnesses. 16. But, curiously enough, her medical examination does not depict even a minor injury. There was no reason for the accused to have committed the offence at the place narrated by her in the circumstances given out by her and other witnesses. 16. All the prosecution witnesses admitted in their evidence that the matter of incident happened with the prosecutirx was reported to the Sarpanch and other Panchas of the village community and a meeting was convened in the village where, as admitted by the prosecutrix herself, a report was written and placed before her to make her signature thereon. But, again,despite evidently, the matter was reported to the Sarpanch etc. who could have referred the report onward to the police, being responsible as representative of the village community, to report such matters to the police, however, the police has neither included nor examined the Sarpanch etc. in this case. In such cases, the inclusion of such responsible persons particularly when the matter was reported to them, was essential. Non-production of such persons, in view of the evidence of the prosecutrix scanned above, in the circumstances, where she has made exaggerations on material particulars, is fatal to the prosecution. 17. After perusal of the impugned judgment, I find that the trial Court has not considered together the total effect of the circumstances given out by the prosecutrix and other witnesses, and it has arrived at its findings of conviction against the accused on the basis of an isolated fact or a proposition regarding the particular course of conduct or behaviour pattern which is not permissible in criminal jurisprudence. 18. According to the Doctor who examined the victim, she was habitual of intercourse, there was no evidence of any forcible intercourse, there were no injuries on her genitals or even any stain, and her vagina during her medical examination on 21.12.1981, was found duly filled with menstrual blood being started on 20.12.1981 - next day of incident - according to the victim, as stated and taken note of the fact by the doctor while making report by him under Ex.P.13. On the contrary, the prosecutrix in her evidence not only during her examination-in- chief but also cross-examination deposed that as soon as the accused (Kishna) completed sexual act, the blood started oozing out of her vagina and thereby there were blood stains upon her wearing cloth. On the contrary, the prosecutrix in her evidence not only during her examination-in- chief but also cross-examination deposed that as soon as the accused (Kishna) completed sexual act, the blood started oozing out of her vagina and thereby there were blood stains upon her wearing cloth. If her evidence that when Kishna was committing rape upon her forcibly, she was held by three other accused (out of which two were found not guilty being not indulged in the commission of the offence) is taken at face value, then there would certainly have marks of violence, physical laceration, contusion or trauma though such a version is not probable in my view because no one could have dared to do sexual act in the presence of three others in the circumstances stated by the prosecutrix, which are not proved on record by oral, ocular as well as medical evidence. As observed above, according to evidence of the victim, there was penetration of the penis of the accused (Kishna) into her vagina with discharge of his semen,but, according to the medical evidence, there were no stains over genitalia, hymen was not ruptured, contused, or having any trauma, rather no evidence of forcible intercourse, and that apart, even vaginal smear and swab, according to the chemical examination report, though taken by the doctor as per Ex.P.13, but found with no human semen or even any blood either therein or petticoat. Thus, the medical evidence does not substantiate that the sexual act was complete, and could not suggest any sexual assault. In the present case, apart from the fact that the victim's evidence is not worthy of credence, as has been scanned by this Court in the foregoing paras, it is found to be improbable in face of the medical evidence and material contradictions in oral testimony. 19. The cumulative effect of the medical evidence coupled with the oral testimony of the prosecutrix atleast throw a doubt on the correctness of the story of .rape put forwarded by the prosecutrix before the Court. The evidence of the prosecutrix lacks corroboration which is being insisted upon in view of the circumstances of the cases. 19. The cumulative effect of the medical evidence coupled with the oral testimony of the prosecutrix atleast throw a doubt on the correctness of the story of .rape put forwarded by the prosecutrix before the Court. The evidence of the prosecutrix lacks corroboration which is being insisted upon in view of the circumstances of the cases. taken note by this court while scanning the prosectuion evidence because of the fact also that the prosecutrix having attained majority was found in a compromising position and there has been likelihood of her having levelled an accusation of rape on account of the instinct of self-preservation as in view of the circumstances wrung out from her evidence, the probabilities factor is out of tune, inasmuch as her evidence suffers from basic infirmities and probabilities fact'renders it unworthy of credence. I lend support from the decision in Bharwada Bhoginbhai Harjibhai Vs. State of Gujarat AIR 1983 SC 753 . 20. After considering all the facts and circumstances of the case some of which have been noted above, I hold that the prosecution case that the accused took the prosecutrix to the scene of occurrence and committed sexual intercourse upon her forcibly, has not been proved according to the required standard of proof. Even medical evidence noted above is suggestive of habitual sexual intercourse and the absence of any injury on the parts of her body or private parts tells its own tale rather militate against a theory of rape and would indicate that if the appellant had sexual intercourse with the victim, it might have been with her consent. In the totality of the circumstances, noted above, the prosecution has completely failed to prove complete rape including penetration, beyond reasonable doubt. Thus, the order of conviction of the appellants must have to be set aside. 21. In the result, the appeals succeed and are allowed. The order of conviction & sentence passed against the appellants is set aside. The appellants are on bail and need not surrender. Their Bail bonds stand discharged. The record be sent back.Appeals allowed. *******