C. V. JANI, J. ( 1 ) CRIMINAL Appeal No. 214 of 1991 is preferred by the original accused- gulammohmed Mohmed Yusuf Saiyed under section 374 (2) of the Code of Criminal procedure against the judgment and order of his conviction under Sections 363, 366 and 376 I. P. C. by the learned Additional Sessions judge, Baroda, in Sessions Case No. 126/90. The appellant-accused was convicted for committing an offence punishable under Section 376 IPC and sentenced to suffer R. I for 5 years and to pay a fine of Rs. 1,000. 00 in default to suffer R. I. for three months. He was also sentenced to suffer R. I. for three years and to pay a fine of Rs. 1,000. 00, in default, to suffer imprisonment for one month for committing an offence under Section 366 I. P. C. No separate sentence was imposed for committing the offence under Section 363 I. P. C. Substantive sentences were orderd to run concurrently. ( 2 ) IT was the prosecution case that the accused who was running a Madresa for teaching Urdu and Arabic languages relating to the tenets of Islamic religion between 7. 00 a. m. and 10. 00 a. m. requested his student shahjabanu at about 11-30 a. m. to bring nasimakhatun aged 12 years who also used to attend the Madresa, and committed rape on Nasimakhatun in the kitchen portion of his room after she came there at about 12 noon. The father of the victim Ishrafil Salimbhai ansari lodged his complaint on the same day, i. e. on 20-5-90 with Sayajiganj police station at 18-15 hrs. It also appears that the accused was found to be seriously injured and was admitted to the hospital. After registering the complaint and after recording the statements of certain witnesses as per the say of the complainant and his wife, the police submitted the charge-sheet. It also appears that the accused was found to be seriously injured and was admitted to the hospital. After registering the complaint and after recording the statements of certain witnesses as per the say of the complainant and his wife, the police submitted the charge-sheet. Therefter on 17-8-90 the case was committed to the Court of Sessions which framed the charge as under:"at about 11-30 a. m. on 20-5-90 you enticed nasimakhatun minor daughter of the complainant to leave out of the keeping of the lawful guardianship of her father without his consent in order to seduce her to illicit intercourse and thereby committed the offences punishable under Sections 363 and 366 I. P. C. and at the same time on the same day at about 12 oclock, you had committed rape on nasimakhatun against her will and without her consent and thereby committed an offence punishable under Section 376 I. P. C. " ( 3 ) THE accused pleaded not guilty. The learned Addl. Sessions Judge recorded the evidence of prosecution witness No. 1-Pankaj haridas Barai, Professor in Medicinal Science at Exh. 14, the prosecution witness No. 2 - jshrafil Salimbhai Ansari, father of the minor nashimakhatun, Exb. 18. The prosecution witness No. 3-Jamilakhatun Ishrafil, mother of the minor Nashimakhatun, Exh. 23, prosecution witness No. 4-Rukshana Moyuddin, aged 9 years at Exh. 24, prosecution witness no. 5-Shahjabanu Mohmedyasin aged 11, at exh. 25 and the prosecutrix herself P. W. 6- nashima Ishrafil Ansari at Exh. 26. The investigating Officer Kiritikumar Mulshanker joshi was prosecution witness No. 8 whose evidence was recorded at Exh. 30. Panch witness Salimbhai Sheikh whose evidence was recorded at Exh. 28 turned hostile and so the panchnama regarding the scene of offence was not proved. ( 4 ) NO evidence was brought on record regarding the injuries found on the body of the accused and the complaint filed by him or his wife Amina on that very day. ( 5 ) THE learned Sessions Judge after appreciation of the evidence on record, came to the conclusion that the offences under sections 363, 366 and 376 were proved. ( 6 ) IT appears that the accused who was in judicial custody applied twice for legal aid. ( 5 ) THE learned Sessions Judge after appreciation of the evidence on record, came to the conclusion that the offences under sections 363, 366 and 376 were proved. ( 6 ) IT appears that the accused who was in judicial custody applied twice for legal aid. It appears to be the defence version that a false complaint had been filed against the accused as the complaint regarding severe beating of the accused had already been filed on the same day. ( 7 ) MR. P. J. Yagnik, learned Advocate appearing for the appellant points out certain infirmities and contradictions in the evidence led by the prosecution witnesses. He submits that there was inherent improbability in the prosecution version regarding the commission of rape on the minor Nasim at about 12. 00 in his hutsment in view of the fact that the accused had two wives and eight children and all of them would be normally present at the time of preparing food at the house, particularly on 20-5-90 which was a Sunday. He also submits that the accused was aged 59 years and not 44 as recorded by the lower court. He further points out that the evidence of the child witnesses Rukshana Exh. 24 and shahjabanu Exh. 25 who were brought in as eye-witnesses was not reliable. He further points out that the prosecutrix Nasimakhatun who was aged less than 16 at the relevant time and who was described as 9 years old at the time of filing the complaint by her father was clearly mentally retarded, a fact which was admitted by her mother Jamilakhatun and also borne out from the oral evidence recorded by the trial court in question-and-answer form. He further submits that there was no direct evidence brought on record regarding taking of swab from the private parts of the victim nashima. He submits that as per the record nasima was passing through menstrual period at the relevant time and it rendered the whole prosecution story improbable, when coupled with the fact that according to the medical evidence Nasima was habituated to sexual intercourse. According to Mr. Yagnik the appellant deserves to be acquitted in view of the aforesaid infirmities in the prosecution case. According to Mr. Yagnik the appellant deserves to be acquitted in view of the aforesaid infirmities in the prosecution case. He further submits that the prosecution has not been fair in conducting the case inasmuch as it has not brought on racord the complaint filed in connection with the injuries found on the person of the accused on that very day and it has not examined any member of the family of the accused who would normally be present at 12 oclock on that unfortunate day. According to him, this withholding of the relevant evidence creates doubt about the prosecution version particularly in view of the defence case that the father of the minor girl would have file a false complaint involving his daughter in order to implicate any innocent person out of enmity. ( 8 ) HE, therefore, submits that if the appellant is not acquitted forthwith in view of the evidence of the prosecutrix hereself, which according to him, is quite a weak piece of evidence, then a re-trial becomes absolutely necessary as the trial of the accused before the learned Sessions Judge was unsatisfactory and it resulted into failure of justice. ( 9 ) IN this context, we are conscious about the position of law laid down by the Supreme court in Balwant Singh and Others v. State of Punjab, 1987 S. C. 1080 wherein the Supreme court found it difficult to accept the contention of the appellants that they had been falsely implicated because of enmity of the father of the prosecutrix against the appellants. In that particular case before the Supreme Court the prosecutrix who was a student of B. A. aged about 19 or 20 years, was raped by several accused while going to the college to collect her marks certificate and her unconscious body was traced by her father near the canal bridge. The defence of the appellants was that they had been falsely implicated in the case by the father of the prosecutrix because of enmity against the appellants in connection with some litigation between them. The Supreme Court observed that it would be absurd to suggest that because of the litigation or any enmity that he may have against the appellants, the father of the prosecutrix would falsely involve his daughter in a case of rape by the appellants. The Supreme Court observed that it would be absurd to suggest that because of the litigation or any enmity that he may have against the appellants, the father of the prosecutrix would falsely involve his daughter in a case of rape by the appellants. ( 10 ) IN the background of this legal position we have examined the evidence led by the prosecution in this case. ( 11 ) P. W. I-DR. Pankaj Haridas Barai deposted in his evidence Exh. 14 that the accused who was examined at 8. 55 p. m. on 20-5-90 was found to be having several injuries on his body and his shirt was torn and blood stained. The certificate Exh. 15 given by this witness shows that the accused has as many as 5 injuries (i) C. L. W. Right upper arm 5 cm. x 1. 5 muscle deep. (ii) Multiple Bruise over back (marks of lathi) varying from size : 11 cm. to 16 cm. (iii) Two Abrasions, right knee anterior size :, (a) 1 c. m. x 1 c. m. (b) 1 c. m. x 1 c. m. x 3 to 5 c. m. 5 (iv) Bruise over right gluteal region size : 4 c. m. x 1 c. m. (v) Bruise over Left upper link around elbows 4 c. m. x 1 c. m. The Doctor opined that there were multiple injuries over the body and there was nothing to suggest that he was capable of performing sexual intercourse. ( 12 ) THIS evidence shows mat the accused was seriously injured even before he was brought before the Doctor. It has nowhere been the prosecution case that he was attacked and injured in connection with the offences alleged to have been committed by him. ( 13 ) DR. Barai has also deposed that the dress of Nasimakhatun received by him at 8. 55 p. m. was blood stained and it was sent to Forensic Science Laboratory. On her examination Professor Barai found that there were no physical injuries on her body nor any injury on vulva that the hymen had old tears and it admitted two fingers. He also opined that the blood detected on her private part, was mensutral blood and she was accustomed to sexual intercourse. The dress, blood, saliva and the swab taken from her private part were sent to Forensic Science Laboratory. He also opined that the blood detected on her private part, was mensutral blood and she was accustomed to sexual intercourse. The dress, blood, saliva and the swab taken from her private part were sent to Forensic Science Laboratory. Professor barai opined on the basis of her X-ray and other physical examination that her age might be 12 to 14 years with a variation of 2 to 3 years. The medical evidence of this prosecution witness shows that Nasimakhatun was less than 16 years of age at the relevant time, that she was passing through menstrual period on the date of the incident and that she was habituated to sexual intercourse. ( 14 ) THE next witness examined by the prosecution is P. W. 2-Ishrafil Salimbhai Ansari, father of Nasimakhatun who thrice described her daughter Nasimakhatuns age as 9 years in his complaint Exh. 19 and indicated her age as 12 years in his oral deposition. He deposed that he was serving as a Lineman in the Telephone department every day between 9-30 a. m. and 5. 30 p. m. and after returning from service at about 5-30 p. m. on 20-5-90 he was informed by his wife that Nasima was sexually assaulted by the accused at his house where none else was present. He further deposed that the inhabitants of the locality who were angry went to the house of the accused and had belaboured him. His complaint recorded by the police is at Exh. 19. He of course denies that a false case had been made out against the accused as a sequal to attack by him and other persons on the accused at 12- 45 noon. He was not prepared to state the correct age of his daughter Nasima. He, however, admits that there are several hutments around the place of the residence of the accused and the inhabitants of these hutments would immediately gather together whenever there is an uproar or quarrel. He admited that Sundays were holidays for him. He admitted that there were at least two telephone connections near his bouse and his relative permits his wife to contact him on telephone whenever so requested. It is to be borne in mind that till 5- 30 admittedly the mother of Nasima did not try to contact her father on telephone who was himself an employee in the Telephone department. It is to be borne in mind that till 5- 30 admittedly the mother of Nasima did not try to contact her father on telephone who was himself an employee in the Telephone department. He further admitted that the accused used to sell religious books in a handcart after 7. 30 a. m. He further admitted that he had intimated the fact of rape to Sayajiganj police Station by telephone and he along with his wife, son and the accused who was in a serious condition, were taken in the police van. He admitted that Amina, wife of the accused, had pointed at him when he came in the police van from the police station. This evidence of the complainant indicates that it was Amina, wife of the accused, who had gone to the police station for complaining against the father of Nasima and till 5. 30 p. m. the mother of Nasima did not think it necessary to inform her father about the alleged rape, even though Sundays used to be holidays for him. ( 15 ) JAMILAKHATUN, mother of Nasima P. W. 3 examined at Exh. 23, admitted that the accused had two wives, and that Nasima used to take lessons from the accused. She has come out with the story that her daughter Nasima had gone to the house of the accused after receiving a message from minor girl Shahjabanu, without informing her mother. When the witness sent another minor girl Rukshana, aged 9 years to call Nasima from the house of the accused she told her after returning from his house that through a big hole, she had seen the accused in a naked condition committing rape on Nasima. On having received such information Jamilakhatun started going to the house of the accused, but Nasima met her on the way and told her that she had been raped by the accused. She also deposed that the dress of Nasima was blood stained and blood was also coming out from her private parts. 16. ( 16 ) THAT when she went with her husband in the police van to the police station, amina, wife of the accused was already there in the van. She also deposed that the dress of Nasima was blood stained and blood was also coming out from her private parts. 16. ( 16 ) THAT when she went with her husband in the police van to the police station, amina, wife of the accused was already there in the van. She has deposed that the inhabitants of the locality went to beat the accused at about 5-00 p. m. and even though the accused was at his house between 12-00 noon and 5- 00 p. m. She admitted in her evidence that nasima was mentally retarded because of some serious illness during her infancy. She also admitted that Nasima was treated by the Doctor from the locality after returning from the general hospital. She also deposed that the upper garment, kurtha and pyjama of Nasima were not torn when they were produced before the police. But they were found in torn condition when they were shown to her in the court. She repelled the suggestion that she was advised not to send Nasima to Madresa after attaining puberity in the year 1987 and that she was actually not sent to Madresa because of menstrual period. ( 17 ) THE next two witnesses are minors. Rukshana was aged 9 years and Shahjabanu was aged 11 years. ( 18 ) P. W. 5 Shahjabanu deposed in her evidence Exh. 25 that she had taken lessens in urdu for about two months from the accused, but Nasima was not attending such classes. She deposed that when she went to the house of the accused to take the Chappels of her sister left there by her by mistake, the accused asked her to send Nasima and, therefore, she asked Nasima to go to the house of the accused. She did not depose anything about the ill- treatment of Nasima by the accused. She admitted that the accused used to go out for selling Urdu religious books and that there was only one door of the house of the accused made of Tin sheet. She admitted that she had seen the accused bleeding and that he was unconscious. ( 19 ) THE other minor witness Rukshana, aged 9 years, deposed in her evidence Exh. 24 that she was sent by her aunt Jamila to inquire about Nasima at the house of the accused where she was asked to go for taking food by shahjabanu. She admitted that she had seen the accused bleeding and that he was unconscious. ( 19 ) THE other minor witness Rukshana, aged 9 years, deposed in her evidence Exh. 24 that she was sent by her aunt Jamila to inquire about Nasima at the house of the accused where she was asked to go for taking food by shahjabanu. On going to the house of the accused she found the door closed, but she could visualise from a big hole that Nasima was being raped by the accused. She, therefore, told her aunt Jamilabanu about what she had seen through the big hole. She then accompanied Bai Jamila to the house of the accused but on way, she met Nasima in blood stained clothes. According to this witness there is a big hole through which a nine year old child can peep in and easily witness the incident of rape. ( 20 ) THE evidence of the most material witness, namely, Nasima who is alleged to be the victim of rape, is recorded at Exh. 26. Before her evidence was recorded, a note was made by the learned Judge that the witness appeared to be short in height and so she was asked to stand on the chair which was placed in the witness Box. She was unable to state her age. She denied that she had taken any education or that she studied religious books or Urdu language. At the same time she deposed that she used to go to the house of the accused at about 3. 30 p. m. for taking lessons. She deposed that Shahjabanu also used to attend the class conducted by the accused. This is quite in conflict with the evidence of Shahjabanu who deposed that Nasima never used to go to the house of the accused for taking religous lessons. Nasima deposed that the incident happened at 3. 30 p. m. This shows that Nasima had perhaps no sense of time. She graphically described the alleged act of rape by the accused. She admitted that she did not tell either her father, mother or friend about this incident and that there was nobody with her between 10. 00 a. m. and 9. 30 p. m. This shows that Nasima had perhaps no sense of time. She graphically described the alleged act of rape by the accused. She admitted that she did not tell either her father, mother or friend about this incident and that there was nobody with her between 10. 00 a. m. and 9. 00 p. m. This oral evidence recorded in question - and- answer form coupled with the evidence of jamilabanu shows that Nasima was mentally retarded perhaps because of some serious illness suffered by her during infancy, and her evidence which cannot stand on par with the evidence of a 19-year old college-going girl who was raped in the case of Balwant Singh (supra) has to be scrutinised with great care and caution, particularly when the medical evidence shows that she was habituated to sexual intercourse. . ( 21 ) THE Investigating Officer Kiritkumar m. Joshi in his oral evidence Exh. 30 clearly admits that the house of the accused which is a Kutcha hutment with a door of tin-sheet, is situated in a congested locality, but no statements were recorded. He also admitted that the accused had named three persons including the complainant who had caused him injuries even before he was removed to the hospital and that his wife had filed the complaint. He denies the suggestion that the accused was unconscious when he was taken to the hispital. He does not throw any light on the result of the complaint filed by the wife of the accused nor has he brought on record a copy of her complaint. ( 22 ) THE aforesaid evidence shows that: (I) The accused was having multiple injuries on his body when he was taken to the hospital and that his wife Amina had filed a complaint in that regard; (ii) When accused was asked about the injuries he named three persons including the , complainant; (iii) The accused used to go out for selling religidus books during the day time; (iv) The accused had two wives and several children, who would normally be at home at 12. 00 noon; (v) Nasima was passing through menstrual bleeding period on the day of the incident and she was habituated to sexual intercouse; (vi) Nasima whose age was less than 16 years, was mentally retarded and she deposed that the incident occurred at 3. 00 noon; (v) Nasima was passing through menstrual bleeding period on the day of the incident and she was habituated to sexual intercouse; (vi) Nasima whose age was less than 16 years, was mentally retarded and she deposed that the incident occurred at 3. 30 p. m. , while according to Jamila, mother of Nazima, it occurred at about 12. 00 to 12. 30 noon. (vii) The incident is alleged to have occurred on a Sunday, which was holiday for Nashuas father Israfil. (viii) Jamilabanu, mother of Nasima, who is alleged to have come to know about the incident of rape at 12. 30 noon, did not inform her husband till 5. 30 p. m. either by telephone or otherwise; (ix) When the police was informed by telephone about the incident the police van arrived from the police station and the wife of the accused was already sitting in the police van as she had already lodged the complaint against the complainant, i. e. father of Nasima. (x) The three garments put on by Nasima at the relevant time were found to be in torn condition at the time of recording the evidence even though they were not torn when produced before the police. (xi) On an overall view, the evidence of the child witnesses Rukshana, Shahjabanu and the minor Nasima does not inspire confidence; (xii) The prosecution has not brought on record the complaint filed by Amina and the steps taken in relation thereto; (xiii) The Kutcha hutment occupied by the accused and his family is situated in a congested locality, but no statements of neighbours were recorded. (xiv) The police did not record the statements of the wives and the family members of the accused who would normally be present at 11. 00 a. m. or 12. 00 noon particularly on sunday. ( 23 ) THESE circumstances would have created a serious doubt about the prosecution case if the offences alleged to have been committed were other than rape. So far as the cases of rape are concerned, the evidence of the prosecutrix may or may not require corroboration, inasmuch as a girl in the tradition bound soceity would be reluctant to admit that any incident which is likely to reflect on his chastity had ever occurred. This would also depend on the mental condition and capacity of the victim. This would also depend on the mental condition and capacity of the victim. In a case of a mentally retarded victim other considerations also may arise. She can be an easy victim of the offence of rape and she can also be a tool in the hands of a third party to implicate an innocent person. In the normal circumstances, a father of the victim would not involve his daughter in a case of rape even if there is some backgournd of enmity. The facts on record of the present case as indicated seriatum hereinabove, have to be appreciated along with the caution pronounced by the Supreme Court in the case of Balwant Singh (supra ). But that can be done provided the presecution has not suppressed any evidence and does not create a suspicion about having acted in a partisan manner. The prosecution has withheld the evidence regarding the injuries found on the person of the accused, the complaint filed by his wife Amina and the evidence of the family members of the accused which would be highly relevant in proving or disproving their presence in the house at the relevent time. We, therefore, feel that the accused had not undergone a fair trial, and that has resulted in failure of justice. ( 24 ) THE circumstances of the case require that the prosecution as well as the accused- appellant should be given an opportunity to lead evidence regarding the complaint filed by the wife of the accused, medical evidence regarding the injuries caused to the accused, the statement recorded in that connection and the presence or absence of the members of the family of the accused at the time of the alleged incident. ( 25 ) UNDER Section 391 of the Code of criminal Procedure, the appellate court has the power to take additional evidence or direct it to be taken by the court of Session if it thinks such evidence to be necessary. In rajeshwar Prasad Misra v. The State of West bengal and Another, 1965 S. C. 1887 the supreme Court observed in the context of the corresponding provisions of the old Code (1898) that if the trial already held is found to be unsatisfactory or leads to failure of justice a re-trial may be ordered, or additional evidence may be recorded. In rajeshwar Prasad Misra v. The State of West bengal and Another, 1965 S. C. 1887 the supreme Court observed in the context of the corresponding provisions of the old Code (1898) that if the trial already held is found to be unsatisfactory or leads to failure of justice a re-trial may be ordered, or additional evidence may be recorded. It was observed that additional evidence must be necessary not because it would be impossible to pronounce judgment, but because there would be failure of justice without it. ( 26 ) WE have already indicated hereinabove that the accused in the present case had not undergone a fair trial and so the parties should be given an opportunity to lead evidence regarding the relevant points which have not come on record. In this view of the matter, the learned Advocate for the appellant as well as the learned A. P. P. appearing for the State had to concede that the proper order at this juncture would be to permit the parties to lead additional evidence in respect of the aforesaid relevant points. 1-10-1992 : ( 27 ) AS in this context Mr. P. J. Yagnik, who appears for the appellant through Legal aid, was not in a position to answer certain queries regarding omission to examine the appellants wife. The Jail authorities of Baroda central Prison at Baroda were directed by an order dated 21-9-1992 to keep the appellant present in the Court at 11-00 a. m. on 2 4/09/1992. On 2 4/09/1992 the appellant was brought from the Central Prison at Baroda, and his statement was recorded by this Court in Hindi script. In this statement he narrated the incident of beating by the father of Nasima and others on 20-5-90 and the background of enmity between the parties relating to the demolition of Madresa building constructed by him. He also stated that his two wives and children were at home all throughout the day. He further stated that it was necessary to record the evidence of Bai amina who was also beaten and who had complained about the beating to the police. He also stated that his two wives and children were at home all throughout the day. He further stated that it was necessary to record the evidence of Bai amina who was also beaten and who had complained about the beating to the police. ( 28 ) WE were, therefore, of the view that the complaint filed by Amina on the date of the incident should have been brought on record by the prosecution, particularly when it was admitted by the Investigating Officer that Bai amina had lodged such a complaint regarding the injuries caused to the accused by the complainant and others. Moreover, the presence or absence of Bai Amina in the house at the relevant time was a most material fact which was not even touched by the Sessions Court. We, therefore, directed the Officer in-charge of the Sayajiganj Police Station at Baroda to produce before this Court on 30/09/1992, the complaint filed by Bai Amina on 20-5-90 at Sayajiganj Police Station in respect of injuries caused to her husband Gulam mohmed Saiyed, and also to bring Bai Amina, residing at the relevant time in Kalyannagar, before this Court on 30/09/1992 after tracing her whereabout for being examined as a witness. ( 29 ) ON 30/09/1992, the Officer in-charge of the Saiyajiganj Police Station. Baroda, produced the certified copy of the complaint filed by Bai Amina, and also brought with him the original N. C. Register. Bai Amina was also kept present. Mr. Yagnik for the appellant also submitted that the application signed by the appellant who was kept present by the Jail authorities to examine Bai Amina as a defence witness. After hearing the learned advocates Bai Amina was permitted to be examined as a witness. ( 30 ) BAI Amina in her oral evidence deposed that she was the second wife of the appellant who was present in the court and she was married with him about 13 years ago; the first wife was Nurunnisa who has four children while Amina has three children. Amina has disclosed that there is only one room in the hutment occupied by them, with two doors- one of which was covered by a curtain and the other by shutter in a damaged condition and there are medium size windows without shutters on the road side. Amina has disclosed that there is only one room in the hutment occupied by them, with two doors- one of which was covered by a curtain and the other by shutter in a damaged condition and there are medium size windows without shutters on the road side. Regarding coaching of students in the Madresa she has deposed that her husband had stopped imparting lessons about three years before the incident after the building was damaged by dissatisfied elements. The coaching time was 7-00 a. m. to 10-00 p. m. and after 10 p. m. she and Nurunnisa used to attend domestic work and cooking. Her husband used to go out for selling books and all the family members except the husband would participate in taking the food at about 12-00 noon. ( 31 ) REGARDING the incident which occurred on 20/05/1990, Bai Amina has deposed that the accused went out at about 10-00 a. m. and returned at about 3-30 p. m. Before his return Ali Mohmed and another companion had come to their house to inquire about the whereabouts of the accused. After the accused came home, and placed the bag near the door about 20 persons came with sticks and some of them tried to drag him out of the house. Bai Amina intervened but she was beaten and her child was also injured. Her nephew Nazir who came there on bicycle and intervened was also beaten. In the meantime, 5 to 6 persons lifted and carried the accused to the road and then to the riverside. Bai Amina and two other women residing in the locality went in search of the accused and found him on the riverside in an unconscious condition. He was then brought to a nearby shop and Nurunnisa was sent to call the police. The Police came in a jeep Car. The accused was placed in the Jeep Car and Bai Amina accompanied him to the police Station. She oraliy compained to the police that she and her husband were beaten because of the dispute relating to the Madresa land, but at that time the complaint was not reduced to writing. The N. C. complaint produced by the Police Officer of Sayajiganj police Station was read out to Bai Amina. She oraliy compained to the police that she and her husband were beaten because of the dispute relating to the Madresa land, but at that time the complaint was not reduced to writing. The N. C. complaint produced by the Police Officer of Sayajiganj police Station was read out to Bai Amina. She denied that Israfil and Noor Mohmed had come to her house at about 4-00 oclock complaining about molestation of Nasima, and if there was any reference to such a complaint by Israfil in the said N. C. complaint, it was not made at her instance. She further deposed that in order to test whether the accused was really unconscious two ice balls brought by the policeman were placed on the palm of the accused, but it had no effect for a long time. Thereafter, Amina and her husband who was in an unconscious condition, were taken to the hospital. ( 32 ) REGARDING Nasima, daughter of Israfil, amina has deposed that she attended Madresa only for about two months about 5 years ago, i. e. in the year 1987 and she was found to be mentally retarded. She denied that Nasima was called at her house on the date of the incident, or that the accused had molested her. She emphatically stated that on that day, she and her children along with Nurunnisa and her children were at home. ( 33 ) IN her cross-examination the evidence of Bai Amina remained unshaken. Her evidence shows that it was the complaint filed by Amina in respect of the injuries caused to her and to her husband that set in motion the machinery of the police investigation against her husband. Her evidence further showed how improbable it was for the accused to commit a heinous crime of rape in the hutment with two open windows, in which the two wives and seven children of the accused used to reside for the whole day, and particularly at 12-00 noon. Her evidence further shows that the accused was attacked at 3-30 p. m. and was lifted and dragged to the riverside. Her evidence further shows that the accused was attacked at 3-30 p. m. and was lifted and dragged to the riverside. P. W. 6 Nasima herself alleged that the incident of rape occurred at 3-30 p. m. Bai Jamila herself did not complain about the alleged incident, which according to her, took place at about 12-00 noon to her husband till 5-30 p. m. even though it was a holiday for him, how did he send any telephonic message conveying such startling news. Almost all the prosecution witnesses have admitted that the accused used to go out of his house for selling books. The situation of the hutment occupied by the accused and his family in a congested locality was such that any pedestrian passing on the road would be able to peep inside through the open window. All these circumstences when viewed in the background of the medical evidence indicated above, improbablise the occurrence of the incident of rape alleged by the prosecution and it is not impossible that the complaint about a rape was registered at about 6-15 p. m. after the accused was brought to the hospital in a unconscious condition and his wife Amina had complained about beating by the complainant and others. The complainant has, of course, denied that he had filed a false complaint under an apprehension that he would be held guilty for beating the accused. ( 34 ) SURPRISINGLY no action was taken by the police in respect of the complaint made by Amina in spite of the medical evidence about a number of injuries found on the person of the accused, nor did the learned Committing magistrate, or the learned Additional Sessions judge take congnizance of the offence coming to light from the medical evidence in the form of certificate Exh. 15 issued by Dr. P. H. Barai, under Chapter XIV of the Code of Criminal procedure. ( 35 ) IN view of the aforesaid state of evidence, we are constrained to hold that the prosecution has failed to prove the offence of rape against the accused beyond reasonable doubt, and the principles stated in the case of balwant Singh (supra) would not apply in the present case. ( 36 ) CRIMINAL Appeal No. 214/91 is, therefore, allowed. The conviction and sentence imposed by the learned Additional Sessions Judge, baroda in Sessions Case No. 126/90 are hereby set aside. ( 36 ) CRIMINAL Appeal No. 214/91 is, therefore, allowed. The conviction and sentence imposed by the learned Additional Sessions Judge, baroda in Sessions Case No. 126/90 are hereby set aside. The appellant accused will be set at liberty forthwith, if not required in any other case. ( 37 ) CRIMINAL Misc. Application No. 2515/ 91 for enhancement of sentence is rejected. Appeal allowed. .