JUDGMENT 1. - This appeal is directed against the judgment of learaed Sessions Judge, Jodhpur, dated 18.5-9:1 in Sessions case No. 54 of 199? whereby the accused-appellant has been convicted for offence under section 376(2),d) IPC and is sentenced to ten years' rigorous imprisonment and a fine of Rs. 1000/-, in default of payment of fine, he is directed to further undergo six months' rigorous imprisonment. 2. Facts leading to this appeal are that on 11-2.1991 at 8.45 P.M. Smt. Sujata Das wife of Shri Chatainyadas of 12th Corps SI V Regd. c/o APO at Police Station Udai Mandir wherein she alleged that on the February 1993, she went with her husband to Corps MI room for getting here self checked on pregnancy card. She submitted her card to nursing Assistant NK(NA) R P. Singh accused who asked to check the blood. He gave injections and told her husband that she is having lesser blood, there-fore, bring her again on 6th for vitamins injection so she visited again on 6th February at 8:30 A M. The accused gave her three tablets with water. Her husband bad also arrived. She complained of weakness to her husband who was sitting by her side. The -accused thereafter called her inside the First Aid Room and asked her husband to attend the telephone of the doctor out side. The accused asked her to step on bed and gave one injection on her hip and thereafter gave her drips by banging the bottle. He injected two injections in the drip tube. He checked her breasts and vagina and then raped her. She wanted to call her husband but she was feeling weakness and could not shout. Thereafter she came out and return-ed to her quarter with her husband. She did not narrate the story to her husband for the fear that he could murder the accused In her quarter she told her husband that the accused had checked her breasts and vagina. But her husband said he has authority to check as a medical man, She stated that she wanted to tell more but again did not say. Next day in the noon she told her husband to take her to her brother. There she told to her sister-in.1aw the incident who in turn told to her brother who conveyed to his Officer. Then came her husband. Officer told them to live happily. Next day in the noon she told her husband to take her to her brother. There she told to her sister-in.1aw the incident who in turn told to her brother who conveyed to his Officer. Then came her husband. Officer told them to live happily. Her husband did not know about rape till 8th when she conveyed it to him through his officer's wife. It was then told to Dr. Lt. Col Jat. Her husband said if accused surrenders she will excuse him. Then her husband told to Maj Kishanlal and his wife and other wives of the officers. Accused R.P. Singh was called who said he gave only one tablet and one injection. She objected. Then he surrendered and in the end he surrendered everything and kept her fit and asked to pardon in presence of all and there-after on 11th February 1993 this report was lodged. 3. The Police registered the case for offence under section 376 (2) IPC and started investigation. After completing the investigation, a charge sheet was submitted and accused was committed to Sessions. The learned Sessions Judge Jodhpur read over charges for offence under section 376 IPC and in the alternative under section 376 (2) (d) IPC. Prosecution examined as many as 18 witnesses in support of its Lase. Accused in his statement under section 313 Cr. PC denied the occurrence. The learned Sessions Judge convicted and sentenced the accused-appellant as indicated above. Challenging the conviction and sentence the learned counsel for the appellant submitted that there are several glaring infirmities in the pro-ecu-lion case which makes the entire case doubtful. He challenged the findings of the trial court and submitted that the first information report in this case is inordinately delayed. Was submission is that even the date of occurrence is not ascertainable from the evidence on record. His further submission is that the trial court has relied on extra judicial confession which was made before PW 1 Smt. Sujatadas prosecutrix, PW 4 Smt. Chandra Leklia, PW 4 Col. tat, PW 5 Maj Kishanlal and PW 17 Nirmala His submission is that this extra judicial confession is not in accordance with law; rather, such a confession cannot be least taken into consideration since it was not voluntary even according to the prosecution witnesses. tat, PW 5 Maj Kishanlal and PW 17 Nirmala His submission is that this extra judicial confession is not in accordance with law; rather, such a confession cannot be least taken into consideration since it was not voluntary even according to the prosecution witnesses. It is submitted that the submission of the accused made before the witnesses if to be considered as extra judicial confession that has to be taken as a whole and in the background it is made. If the statement is an out come of inducement or promise, it is no confession in the eye of law, and there? fore, that could not be made the basis of conviction It is then submitted that no investigation has been done to indicate what were the medicine available in the hospital which could make the prosecutrix helpless and surrender herself for sexual inter course without any resistance. It is submitted that a bare perusal of the statement of the prosecutrix indicate that she is not a truthful witness and is trying to suppress the material facts in as much as from the very beginning though her husband was present in the hospital yet from that hour till after three days she suppressed the fact of commission of rape to him, though she narrated about her breasts and vagina being examined by the accused to her husband yet she did not utter a word regarding rape. It is also submitted that the manner in which the incident is narrated is not worthy of reliance. Admittedly, Smt. Das had not become unconscious and she says that she was sensing the commission of rape and was seeing from her own eyes but she was totally helpless is a story unworthy of reliance inasmuch as in the next moment she had left with her husband to her quarter. It is then submitted that there is no investigation about identification of the accused. Admittedly, the prosecutrix was not knowing him from before and yet no identification parade has been held. As against this, the learned Public Prosecutor supported the findings of the trial court and submitted that the offence has been committed in a hospital by male nurse on a helpless girl after injecting her the drugs and therefore, it is a serious case that no interference should be done by this Court. As against this, the learned Public Prosecutor supported the findings of the trial court and submitted that the offence has been committed in a hospital by male nurse on a helpless girl after injecting her the drugs and therefore, it is a serious case that no interference should be done by this Court. He submitted that the extra judicial confession has been made before the Senior Officers of the Army and their wives who appeared in the witness-box and there is no reason to discard their statements. He has submitted that conviction can be sustained under section 376 (2) (d) 1PC. Even if it is held that offence under section 376 IPC is not established. 4. I have given my thoughtful consideration to the rival submissions and have perused the entire record meticulously. Apparently it appears to be a very serious case as there are allegations of commission of rape by a medical man in the hospital after making the prosecutrix helpless by administering medicines. But a careful study of the record shows that there are so many blurted areas left out in the case and the statement of the prosecutrix is such which requires corroboration from independent source and from the circumstances available which are lacking in the case. In this view of the matter, the date of occurrence and the inordinate delay of six days in lodging the first information and inaction on the part of the Army Officers for not registering a case assumes great importance. I would, therefore, deal with the evidence of the prosecution witnesses from that point of view. 5. PW I Smt. Sujata repeated the prosecution story in her examination in chief as she fad given in the first information report except the improvements as under. 6. In her statement in Court she submitted that rape was committed on a cot which was collapsible and one part of it was lowered down as a result of which her legs remained hanging and then thereafter sexual inter-course was committed with her. Secondly she when went to Dr. Col. Jat that when the accused was called she was asked by Col. Jat as to what she wants and her answer was if accused catches her feet and begs pardon she will forgive him. Secondly she when went to Dr. Col. Jat that when the accused was called she was asked by Col. Jat as to what she wants and her answer was if accused catches her feet and begs pardon she will forgive him. Accused first denied having commission of any rape and thereafter when she promised to pardon he begged for it and she returned home with her husband. In cross examination she has stated that she is basically a Mohammedan from Assam and her husband is a resident of Orissa whom she married while he was posted in Assam. She stated that she learnt the name of the accused for the first time, when the accused was called at the residence of Col. Jat i.e. after 4 days of the occurrence. She admitted that there were 2.3 more ladies when she was in the hospital. She admitted that she was given a drip and accused had two more assistants with him and all the three were in military uniform. She stated that her blood was tested by Naik Roy and it was on that very day that this incident took place at about 10 A.M. According to her her underwear was soiled which she had washed. She also submitted that she felt pain at the time of the rape but she was not in a position to weep or cry. She also does not know for how much time the accused committed rape on her. She admitted that neither her mouth was gagged nor she was tied. She admitted that she was seeing everything and sensing also the commission of intercourse, but was not in a position to resist. She also admits that she did not narrate this story to her neighbours in the quarter also. She stated that she does not know English and she cannot understand the report Ex. P. 1. She also admitted that there was no identification parade for the incident. She also admitted that vitamin tablets had been given to her on 5th. This is her total statement. I will comment on her statement later on. 7. PW 2 Chatainya das stated that he was asked by the accused to attend the telephone and his wife was taken in first aid room from where to lady medical officer's room. She also admitted that vitamin tablets had been given to her on 5th. This is her total statement. I will comment on her statement later on. 7. PW 2 Chatainya das stated that he was asked by the accused to attend the telephone and his wife was taken in first aid room from where to lady medical officer's room. His wife did not tell him anything about rape except telling him in the evening at 4 P.M. that accused had touched her breasts and checked the vagina on which he stated that accused had a right to do so Next day she went to meet her brother Rehman. She told something to Rehman's wife who took his wife to Maj. Kishan Lal. Maj. then called him and told him "you live happily and do not fight amongst yourself.". On 8th morning his wife told him that she should be taken to C.O. otherwise she will commit suicide. Therefore, be took her to C.O.'s wife to whom she told the full story. Thereafter they went to Lt. Col. Jat and told the whole story to him Accused was called there who admitted commission of rape and of giving the medicines. His officers told him that he will be punished but on 10th evening they said that there cannot be any case in the military of such occurrence, therefore, you go to Civil and, therefore, he lodged the report on 11th. He admitted in cross. examination that name of the accused was known for the first time before Col. Jat when he had confessed his guilt. He submitted that she had lodged the report on 9th February in writing to Maj. Moorti of his unit. He could not explain why there is no mention of this report in the first information report He also admitted that this incident was not narrated to anyone in the unit. 8. PW 3 H. Rehman is the brother of the prosecutrix who says that on 7th February prosecutrix and her husband came to their residence and she talks about the incident to his wife in separate His wife told to him. He then took her to Kishanlal and Kishanlal's wife. Thereafter her husband was told of the incident. According to him they were not knowing the name of the accused till 11th of February i.e. the date of lodging the first information report 9. He then took her to Kishanlal and Kishanlal's wife. Thereafter her husband was told of the incident. According to him they were not knowing the name of the accused till 11th of February i.e. the date of lodging the first information report 9. PW 4 Smt. Chandra Lekha is wife of Col. Rathi who told that on 8th Sujata and her husband had come to her house. Sujata narrated the incident to him on which she took them to Col. Jat's place. By that time, her husband had conveyed the incident to Col. Jat where accused was called who admitted his guilt and apologised to Sujata. She has been cross-examined about the timings. She admitted that in Ex.D 1 i.e. her police statement she had narrated that prosecutrix had told her in the very beginning the name of R.P. Singh which is not correct She has contradicted herself from her police statement. She has also denied the story of giving inducement or promise to the accused before he made a confession. She admitted that she does not know who gave out the name of R.P. Singh to Col. Jat. Lt. Col. Jat R N. Jat who is the medical officer stated that she was told of the incident on 8th February by Col. Rathi. Thereafter Mrs. Rathi, Maj. Kishanlal, his wife, Rehman, Prosecutrix and her husband also came. He had two nursing assistants. One was out of station on exercise. He was Amichand so he called accused who admitted that on 5th and 6th Sujata Des had come to the medical room and he did treat her but he denied the commission of rape. He said the same thing before Col. Rathi and Mrs. Rathi. Maj. Kishanlal and his wife. He denied the accused having made confession of rape in his presence, The witness was declared hostile. Maj. Kishanlal in his statement has narrated the story as given by his wife and others, but has admitted that when accused was asked whether he had committed any rape said it is absolutely false allegation He was thereafter induced to give it and a promise was given for pardon. He was given 10 minutes time to think over. Col. Jat also told him and thereafter he returned after ten minutes and apologised for his mistake. He thereafter left the place 10. PW 7 Dr. He was given 10 minutes time to think over. Col. Jat also told him and thereafter he returned after ten minutes and apologised for his mistake. He thereafter left the place 10. PW 7 Dr. K.K. Subarwal had done the medical examination who told that prosecutrix was pregnant. Rest of the witnesses are formal except Noora Tara Begum PW 11 who is wife of Rehman brother of the prosecutrix. She said Sujata narrated her story to her which she conveyed to her husband and she knows nothing except it. 11. Nirmala PW 16 is Col. Kishanlal's wife who also narrated the story as was told to her. According to her Sujata and her husband told the accused if be confessed the guilt be will be pardoned. Thereupon accused confessed the guilt. She says nothing except it. 12. PW 17 is Investigating Officer who stated that according to his investigation, rape was committed in standing position. He could not collect the record about the medicines which bad been administered on Smt. Sujata. He admitted that he did not get the identification conducted. This is the total evidence in the case. 13. In my opinion, the most crucial question in the case is whether any conviction can be based on the extra judicial confession alleged to have been made by the accused in presence of the witnesses which was made after inducement was given and promise made to him to forgive him coupled with ti e fact that till the time the accused was called before all the Officers, none of the witnesses including prosecutrix knew the name of the accused? Also in the absence of evidence that the prosecutrix had not pointed out to the accused coupled with further fact that he had made no confession in the very beginning and then was given ten minutes time to go and only let in the light of the inducement and promise made to him and also in the light of the fact that the Medical Officer Col. Jat does not support the story of extra judicial confession. The settled law on the question of confession is that the confession must be voluntary and should not have been obtained by inducement, threat or promise. 14. Jat does not support the story of extra judicial confession. The settled law on the question of confession is that the confession must be voluntary and should not have been obtained by inducement, threat or promise. 14. In this back ground if we examine the case then admittedly rill after 3 days of the incident no body knew the accused either by name nor by face. The accused by process of elimination as the otter nursing assistants from out of station on exercise was called who in the first instance denied the occurrence in presence of all the persons including prosecutrix. It is at this stage that inducement or promise were made to him. It is also I T1 evidence that till this time his name was not asked and there is nothing to indicate that the prosecutirx pointed out in presence of all the persons that he is the person who had committed rape on her. She on the contrary says if he admits she will pardon him. This is a very strange conduct of a prosecutrix No lady worth the name would have such a lake worm attitude towards an accused who had the audacity of taking advantage of her loneliness and commits rape on her. It is admitted by Maj. Kishanlal that accused was sent out side for 5 to 10 minutes before he returned and trade the confession but before that both inducement and promises were made to him. This is a case of all and sundry that accused only made confession after the promise of pardon was made to him. Such a confession obtained can in my opinion never be made the basis of conviction much less when his own Commanding Officer does not admit of this story. In fact there is nothing to indicate that prior to the confession any effort had been made by any of the Army Officer or by their wives even to ascertain the identity of the accused or to make any effort to find out from the otter nursing staff available and the record of the hospital at to which such drugs could be administered which made the prosecutrix in such a helpless condition that she saw all the actions of the accused. She sensed them all. She sensed them all. She felt the pain also but could neither resist nor could be even call her husband who was just sitting out side or for help of other nursing staff. The entire circumstances if taken together appears to be very strange and the extra judicial confession part does not inspire the confidence. Any accused in such situation if 'geared' by the officers and wives of the officers and is to all types of threat and inducement is bound to get away by even falsely admitting the guilt to save his skin as the promise of immunity has already been made to him Thus the confession not being voluntary cannot be considered as one of the circumstances in favour of the prosecution can. The conduct of the prosecutrix also is very strange in this case. Firstly, she has given an oscillating statement as she says incident has taken place on the day she was giving the vitamin tablets and his blood test was done. At other place she said that it was on the next day. She does not narrate the story to her husband and his case is just the reverse, the action of any reasonable and prudent lady would be who has been subjected to sexual inter course against her will to bold. She does not narrate the incident to any one in the building not even to her husband for three days, not even when she has already narrated half the story to her husband on the same evening. Her soft attitude towards the accused to pardon him if he apologise, her long silence no-identification parade and all the circumstances which if taken together would not make her a wholly reliable witness and it is in this background that both identification and inordinate delay of 5 days in narrating the prosecution story again assumes great importance. The entire story ,may be true', but as held by the Supreme Court in. Sarwansingh v. State of Punjab reported in AIR 1957 SC 637 , there is a long distance to travel between may be true' and must be true' and whole of this distance has to tie covered by unimpeachable and reliable evidence which is lacking in 1110 case. Absence of production of the report lodged before Col. Sarwansingh v. State of Punjab reported in AIR 1957 SC 637 , there is a long distance to travel between may be true' and must be true' and whole of this distance has to tie covered by unimpeachable and reliable evidence which is lacking in 1110 case. Absence of production of the report lodged before Col. Muni, to examine him in the Court, inability of securing of recovery record's finding about medicine administered to the prosecutrix, inability of the Investigating Officer in finding out the duty chart of the day are some of the blurred areas and holes which ought to have been plugged. It appears to me that some thing might have happened to which the prosecutrix might be a consenting party, unless had been noticed by same one and when the news was carried to the Officers and their wives, they made an issue and the case may be of consent and may be of a lesser degree, has been given a colour of serious case of rape It was a case which ought to have been investigated by the officers of the Army to whose knowledge it was brought and it was then their duty to have reported the matter to the Military Police or civil Police as they considered proper and a thorough investigation was required but that could also be not made possible due to unexplainable strange attitude or the prosecutrix herself. In this view of the matter, in my opinion, the accused is entitled to benefit of doubt and same is extended to him. 15. The result is, the appeal is allowed, the judgment, conviction and sentence passed against the accused-appellant by the learned Sessions Judge Jodhpur dated 155.93 is set aside. He is acquitted of the charge under section 376 or section 376 (2) (d) 1PC he is in Jail and shall be released forthwith if not required in any other case.Appeal allowed. *******