D. P. HIREMATH, J. ( 1 ) ON a charge of rape both the respondents arraigned as accused nos. 1 and 2 in the court below were acquitted. They were, the railway guard and the railway engine driver under the south central railway at the relevant time, i. e. , on 17-6-1984 when the incident of rape of p. w. 1 premilabai is said to have taken place in the railway guard's brake van attached to the train that was to go to purli and the train was called as"purli-VAIJNATH passenger train no. 347 up". ( 2 ) THE prosecution case is that when this train came to bidarrailway station platform, halted and started moving, p. w. 1 premilabai who was standing on the platform was dragged inside the brake van of accused no. 1-the railway guard and raped by him under threat. When it halted in the next station, accused no. 2-the engine driver came'to that brake van, talked something to him, got into that brake van and raped her. In fact the train was not in motion when this second rape was committed on her. She raised a hue and cry at udgir railway station where the train had stopped, people collected and she was taken to the railway police station. It was p. c. 807 of railway police outpost who was on the udgir railway platform, noticed large number of persons collected near the brake van, found All the three persons namely, both the accused and p. w. 1 in the brake van and then approached p. w. 8 another police constable at his residence at 10. 30 p. m. and brought him to the platform. P. w. 1 narrated to him what had happened and there was also present a certain journalist-p. w. 6 among the crowd. P. w. 8 informed what had happened by way of a message to the purli railway police station, got a message that he should detain both the accused persons and thereafter took her to purli railway police station on 18-6-1984 where h. c. 447-p. w. 13 took her complaint and registered a case in crime no. Ao/84 under section 376, ipc. The accused were also arrested at the spot as they were also taken along with her by p. w. 8 to that police station. Ao/84 under section 376, ipc. The accused were also arrested at the spot as they were also taken along with her by p. w. 8 to that police station. The clothes of that person were seized and p. w. 1 was sent for medical examination. This is how the charge-sheet came to be filed after due investigation under section 376, ipc against both the respondents-accused persons. The trial court acquitted them holding that the charge against them was not proved beyond doubt. That judgment of acquittal is challenged in this appeal and it is contended by the learned High Court government pleader that the trial court ought to have accepted the evidence of p. w. 1-the prosecutrix, the evidence of other witnesses and the trial court was not justified in disbelieving them. ( 3 ) WE have reappraised the evidence. The evidence of p. w. 1itself, though that of a victim of alleged rape, does not inspire confidence, though evidence of such a victim should be considered on par with that of an injured witness. But what we would like to point out is that the material ingredient that the prosecution has to establish is that there was sexual assault on her without her consent or against her will. That is the most material ingredient and no presumption is raised of want of consent even when evidence is given by the prosecutrix. The evidence of such a witness has to be considered, weighed and assessed over the touchstone of probabilities keeping at the same time in view, the human conduct under peculiar circumstances. ( 4 ) P. W. 1 a married woman who was about 23 years of age orso at the material time, was to go to purli from parabini where she was living at that time. For that purpose she was to catch a train at bidar railway station and accordingly she was standing on the platform from 5. 00 p. m. and the train having arrived at the platform, left that station at 6. 00 p. m. the guard-accused no. 1whom she describes as a 'jhandawala' for the reason that he was holding a flag, dragged her into his brake van when the train was moving and then threatened her not to raise any cry and that he would throw her out in case she raised any such cry, and raped her. 00 p. m. the guard-accused no. 1whom she describes as a 'jhandawala' for the reason that he was holding a flag, dragged her into his brake van when the train was moving and then threatened her not to raise any cry and that he would throw her out in case she raised any such cry, and raped her. Even at the time he was sexually assaulting her, such threat continued. The train then stopped at the next station and at that time accused no. 2 who was the driver of the engine came to the brake van of accused no. 1, both of them talked something between them and thereafter a2 raped her. When this second rape was committed on her, the train was stationary at udgir railway station. When she raised a hue and cry, many people collected there, police also went there and she and both the accused were taken to the police station. Though she is said to have stated what All happened to the police at udgir out-post, nothing was reduced to writing according to the prosecution, but she asserts that whatever she said was reduced to writing in marathi and her thumb impression taken. That writing she identifies as exhibit p. 2. She however adds that her clothes like saree, petticoat, blouse and a bra were taken by the police at purli. What is ununderstandable is that she adds that it was 5. 00 a. m. in the morning when the train reached udgir station. Whatever may be the infirmities with regard to the time of filing of the complaint at udgir station itself or at purli, a plain reading of this evidence does make out a case of rape against both the/accused persons, but answers elicited in the cross-examination make her evidence highly suspicious and the other evidence adduced as presently pointed out is very fatal to the prosecution case. ( 5 ) IT cannot be accepted that the train reached udgir at 5. 00a. m. of the following morning as according to p. w. 8, whose evidence we have already referred to above during the resume of this judgment, he was approached by p. c. 807 at 10. 30 p. m. in his house stating that there were the driver and guard of the train as well as a woman in the guard's brake van. 30 p. m. in his house stating that there were the driver and guard of the train as well as a woman in the guard's brake van. The assistant station master-p. w. 5 is very assertive that the train arrived at the udgir station platform at 9. 05 p. m. and that was bound for purli from secunderabad. Even when it arrived at that hour, it was already late by 4 hours and 4 minutes. After this train halted at the platform, according to this prosecution witness himself, both a1 and a2 approached him in his office and told him that as the coal was exhausted the engine could not run. This witness then informed his superiors and requisitioned another railway engine from bidar station which arrived at udgir station at 1. 20 a. m. thus it is patently clear from his evidence that by 9. 05 p. m. the train was already at udgir railway station. We now revert back to the evidence of p. w. 1 to see if what she has stated in court deserves unqualified or unreserved acceptance. ( 6 ) SHE was not a casual visitor on the platform that evening. she was a bona fide passenger having purchased a ticket to go to purli. No male member had accompanied her when she had undertaken this journey. She had purchased her ticket at bidar railway station and boarded one of the compartments along with other passengers and even around her and by her side were sitting large number of passengers. The prosecution then felt as to how this witness would explain her conduct of standing on the platform when she had already occupied her seat in, the compartment along with other passengers and therefore she was re-examined on this particular reply given by her and then she came forward with an explanation that though she had already occupied her seat after purchasing a ticket along with other passengers, she had got down for urination and it was at that time that she was dragged by the accused no. 1 into his brake van. P. w. 2 deposed that the guard would be in the brake van at the end of the train and that brake van in which a1 was on duty was not adjacent to the engine. 1 into his brake van. P. w. 2 deposed that the guard would be in the brake van at the end of the train and that brake van in which a1 was on duty was not adjacent to the engine. If that be so, it becomes incomprehensible as to why even having purchased a ticket and having got down for urination, this lady stood on the platform without entering into her compartment when the train was about to leave. The explanation elicited in the re-examination makes it worse for the prosecution, inasmuch as she could not be expected to stand staring at the moving train without boarding it. We have rejected her theory that the train had reached udgir station at 5. 00 a. m. which again she asserted at the cross-examination as well. She is assertive that, after the train left bidar, till it reached udgir, it had not stopped anywhere in between. ( 7 ) THIS takes us to the evidence of p. w. 6, the journalist whoarrived at the spot having being informed of this incident at about 11. 00 p. m. he was editor of a certain 'goda taranga' weekly published from udgir and that night at 11. 00 p. m. when he was in his printing press, three or four persons approached him and told him that the train bound for purli was at the platform for three or four hours and that the driver and the guard were telling that the train could not proceed further as their coal stock in the engine had exhausted, but they smelt that there was some other reason than what they were giving. Therefore they required his intervention to know why exactly the train was not moving even though it was on the platform for such a length of time. He then went to the station and enquired with the assistant station master on duty who also confirmed what the passengers had told him at the place of his work. At the same time, some other passengers approached him and told that in the guard's compartment there was a certain lady sitting and that it was for her that the train was stopped there. He then went to the guard's bogie and saw p. w. 1 sitting there in his brake van. When he peeped into that guard's van, she was sitting alone. He then went to the guard's bogie and saw p. w. 1 sitting there in his brake van. When he peeped into that guard's van, she was sitting alone. He then went back to the station master's office and sat there. The station master got her in his office by sending a police constable. Before him and the station master, p. w. 1 alleged that both the guard and the driver had attempted to make her consume liquor\and then eat meat and thereafter committed rape on her. At that time, the guard was on the platform whereas the engine driver was in the compartment. He then advised the station master as a journalist not to detain the train any longer and make arrangements for its journey. He also advised him to take necessary action against the accused persons and perhaps left the station. He denied to have not stated before police during investigation that at 11. 00 p. m. about five persons approached him in his press and told him about the train not moving from the platform. It was also suggested that he did not state that the woman sitting in the guard's compartment complained of rape by two accused persons when she came to the station master's office. These are clear omissions which were proved in evidence of the investigating officer. He also admitted that when he went to the station, the train was standing there for the past four hours, though he did not know when actually it had arrived at the platform. It is noteworthy that even according to him, his statement was recorded about four months after this incident. In this context itself it is relevant to note from the evidence of p. w. 8 that when. p. w. 8, the constable having arrived at the station platform went to the guard's brake van, he saw accused no. 2 actually taking his food in that van. If the evidence of p. w. 6 is read in this context, it follows that the guard was on the platform and accused no. 2 was in the guard's van taking his food and p. w. 1 was very much there in the guard's van. 2 actually taking his food in that van. If the evidence of p. w. 6 is read in this context, it follows that the guard was on the platform and accused no. 2 was in the guard's van taking his food and p. w. 1 was very much there in the guard's van. It would thus apparently follow that when the train arrived at the platform and remained there for about four hours, she never complained against the accused either before the station master or before p. c. 807' who was on duty or any of the passengers about the rape committed on her and it appears that she had not even raised any hue and cry so as to attract the attention of anyone on the platform to help her to take recourse to law. Thus, if according to the very constable, a2 was taking his food in the guard's van, it follows that he had gone there for this purpose and even if it would be said that there was intercourse by both of them or either of them, it could not have been without her consent or against her will. Even if the entire evidence of p. w. 1 is looked into, this could be the legitimate inevitable inference from the prosecution evidence. ( 8 ) THOUGH it is stated that p. w. 1 was sent for medicalexamination and two certificates have been produced, there is no reason as to why the doctor who had examined her was not examined in court. The trial court referring to this lapse on the part of the prosecution has observed that prosecution has not examined any doctor to prove that p. w. 1 was raped on that day between 5. 30 and 6. 25 p. m. the certificate-exhibit p6 which is also marked during trial only shows that there was no evidence of rape on her. It is pertinent to note here that p. w. 5-the station master deposed that when the spare railway engine arrived from bidar, he came to know that p. w. 1 and the constable had gone out of the station platform along with the journalist-p. w. 6. The train then left udgir for its destination. It is pertinent to note here that p. w. 5-the station master deposed that when the spare railway engine arrived from bidar, he came to know that p. w. 1 and the constable had gone out of the station platform along with the journalist-p. w. 6. The train then left udgir for its destination. The trial court has also observed and rightly so, that there was no evidence of rape of p. w. 1 inasmuch as no presence of semen or sperms were seen on her clothes or on those of the accused. ( 9 ) FROM the evidence that we have discussed above, itbecomes abundantly clear that till p. w. 6 arrived on the scene, p. w. 1 had absolutely no complaint or grievance against any of the accused and she was quietly sitting in the brake van itself while accused no. 2 was taking his food. In our view, this conduct of hers has discredited her when she speaks that there was rape committed on her by putting her to threat by two accused persons. On her own showing, accused no. 2 committed rape on her when the train was stationary at udgir railway station and even then she does not make any efforts sither to rush to the station master or to the police out-post to coomplain against them. In fact it was p. w. 6 who got her called to the station master's office by sending p. w. 8 and thereafter this story of rape came to the surface. There is a delay of more than 15 hours in recording exhibit p. i inasmuch as exhibit p. 1 came into existence when p. w. 13-the head constable of purli railway police stationdeposed that on 18-6-1984 at 12. 00 noon p. w. 1 was produced before him by p. w. 8. She gave her oral complaint which he got reduced to writing. Thus, till that hour, there is practically nothing to show that she did complain against these persons anywhere at any time. In our view therefore; though the evidence of a victim of alleged rape who deserves due consideration and even acceptance without any corroboration, still the evidence has to be assessed as the evidence of any other witness and at the same time keeping her evidence on a little higher level. In our view therefore; though the evidence of a victim of alleged rape who deserves due consideration and even acceptance without any corroboration, still the evidence has to be assessed as the evidence of any other witness and at the same time keeping her evidence on a little higher level. But at the same time, All that she says cannot be accepted on the face-value and has to be tested on the touchstone of probabilities and her conduct. Judged from that angle and also considering the non-availability of medical evidence by not examining the medical witness, we find that the evidence of p. w. 1 does not prove the guilt of the accused. The trial court was justified in rendering the verdict of not guilty against the respondents and this finding is neither perverse nor unreasonable. ( 10 ) WE find no ground to interfere with the judgment ofacquittal of the trial court. The appeal fails and is dismissed. --- *** --- .