J. G. CHITRE, J. ( 1 ) THIS appeal has been filed by the appellants for the purpose of assailing the order of conviction and sentence recorded against them by Sessions Judge, Jhabua, in S. T. No. 273/ 87 by which the learned Sessions Judge convicted the appellants for an offence punishable under Section 376, I. P. C. and sentenced them to undergo R. I. for two years. ( 2 ) THE prosecution case, in brief, is as under. In the night intervening 26th and 27m of March, 1987 the appellants called Laxmibai to the house of one Master at about 2 A. M. and thereafter, firstly, the appellant Ashok Kumar pulled her down and thereafter committed rape on her twice without allowing her to cry or shout. After the appellant Ashok Kumar committed rape on her twice, the appellant Munna committed rape on her. Thereafter, the husband of the prosecutrix Laxmibai appeared near the house and therefore, as per the prosecution case, the appellants shoved the prosecutrix out of the said room. The prosecutrix narrated the acts committed by the appellants, with her, to her husband, who called Kalu, Bacia and Hemraj and informed them about the said incident and thereafter the prosecutrix with her husband went to Police Station Kali Devi and lodged F. I. R. ( 3 ) AFTER necessary investigation. Charge - sheet was filed against the appellant in the Court of J. M. F. C. who committed the case to the Court of Sessions Judge for charge. The learned, Sessions Judge, after recording and appreciating the evidence in view of the arguments advanced on behalf of the parties, held that the prosecution had proved that in the night intervening between 26th and 27th March, 1987 at about 2 P. M. the appellants committed sexual intercourse with the prosecutrix Laxmibai against her will and without her consent and thereby committed an offence punishable under Section 376, I. P. C. He, therefore, sentenced the appellants as mentioned and that order is criticised by the appellant in this appeal. ( 4 ) THE learned Defence Counsel and the Learned Penal Advocate representing the State were heard who while arguing the matter referred to evidence on record. The learned Defence counsel canvassed his argument that the conviction and sentence is illegal because the prosecution evidence is not sufficient to establish the guilt of the appellants beyond reasonable doubt. ( 4 ) THE learned Defence Counsel and the Learned Penal Advocate representing the State were heard who while arguing the matter referred to evidence on record. The learned Defence counsel canvassed his argument that the conviction and sentence is illegal because the prosecution evidence is not sufficient to establish the guilt of the appellants beyond reasonable doubt. ( 5 ) AFTER examining the evidence on record this Court come to the conclusion that the impugned order of conviction and sentence is not correct and legal for the reasons stated her under: ( 6 ) IN F. I. R. Ex. P14, P. W. Laxmibai, prosecutrix, who was accompanied by her husband to the police station, stated that in the said night at about 2 P. M. the appellant Ashok called her to the adjoining room which was in possession of one Master and in the said room the appellant Ashok fell her down on the ground and thereafter committed sexual intercourse with her. After that, the appellant Munna committed sexual intercourse with her. The said sexual intercourse committed by both the appellants was against her will and without her consent. She stated in the F. I. R. that the appellant Munna did not permit her to cry or shout as he had gagged her mouth. It has been mentioned in Ex. P14, F. I. R. , that after her husband some there both the appellants left her and she was shoved out of the said house and after that she narrated the incident to her husband and thereafter her husband informed about the said incident to Kalu, Baria and Hemraj Sarpanch. Thereafter, Rameshchandra husband of the prosecutrix and prosecutrix went to the police station for lodging F. I. R. ( 7 ) F. I. R. is the earliest document, which depicted the earlier version of Laxmibai so far as the incident in question is concerned. It is to be noted that the said F. I. R. was lodged by her, when she was accompanied by her husband, who had informed about the said incident to Kala Baria and Hemraj Sarpanch. It is further important to note that the said F. I. R. was lodged at about 3. 30 P. M. 8fter one and half - hours, which would have been lodged by the prosecutrix narrating the version in settled state of mind. It is further important to note that the said F. I. R. was lodged at about 3. 30 P. M. 8fter one and half - hours, which would have been lodged by the prosecutrix narrating the version in settled state of mind. When prosecutrix Laxmibai was examined on oath in the court she stated different story than which is mentioned in the F. I. R. by saying that at 2 or 2. 30 P. M. she had gone out of her house for urinating and at that time both the appellants caught her and took her to the room of Master which was vacant as the said Master was not present there. She narrated further by saying that the appellants picked up and pulled her down on the ground pulled her dress up and thereafter took off his knicker and committed sexual intercourse though she was shouting. She further stated that thereafter the appellant Munna caught her and committed sexual intercourse with her and at that time also she was shouting. It is her say that at that time both the accused threatened her that in the event of her shouting, they would assault her with knife and by such threat they did not permit her to shout. Further more, she stated that thereafter the appellants shoved her out of the said room and at that time she noticed that her husband was standing outside the house and after that, she told her husband that both the appellants Ashok and Munna had committed sexual intercourse with her, against her will without her consent. Thereafter, her husband Rameshchandra called Hema Sarpanch, elder brother of her husband, Gopalsingh, Tolaram father of the accused Ashok and she told them the said incident and thereafter F. I. R. was lodged by both prosecutrix and her husband. ( 8 ) WHEN she was confronted with the F. I. R. Ex. P/4, she stated that she had told the police at the time of recording of F. I. R. that at about 2 or 2. 30 P. M. she had gone out of her house for urinating and at that time both the appellants took her in the room of Master by catching her. She was unable to point out as to why the said information was not mentioned in Ex. P/4. 30 P. M. she had gone out of her house for urinating and at that time both the appellants took her in the room of Master by catching her. She was unable to point out as to why the said information was not mentioned in Ex. P/4. Further more, she was unable to explain as to why it was not mentioned in Ex. P/4, in her statement before the Investigation Officer during the course of investigation that Ashok and Munna took off knicker before committing sexual intercourse with her. She was unable to assigns any reason as to why it was not mentioned that both the appellants had threatened her that in the event of her shouting she would be assaulted by knife. She was also unable to assigne any; reason as to why it was not mentioned in Ex. P/4 that after the said sexual intercourse, both the appellants shoved her out of the said room. Not only that but she disowned some portion of her statement made during the course of investigation by saying that it was incorrectly written in it that both the appellants had called her in the Masterts room which was inconsistent. Further more, it is to be noted that she stated in her cross-examination that when Ashok pulled her down on the ground and wanted to undress her, she did not permit him to undress her and she was shouting and crying. She stated that when Munna committed sexual intercourse with her he fell her down and at that time her bangles were broken. According to her evidence in cross examination Ashok also tried to open her blouse but she did not permit him to do so and therefore, Munna pulled her blouse and in that process the button or buttons of the blouse were disconnected. She further stated that she had handed over the broken bangle pieces and those buttons of the blouse but those broken bangle pieces and buttons were n6t in Muddamal articles before the court. Even the record does not show that the police seized those articles, which would have been done had there been truth in her said statement. She further stated that she had handed over the broken bangle pieces and those buttons of the blouse but those broken bangle pieces and buttons were n6t in Muddamal articles before the court. Even the record does not show that the police seized those articles, which would have been done had there been truth in her said statement. ( 9 ) SHE further stated in her evidence in her cross examination that at the time of sexual intercourse which was against her will and without her consent, she sustained in juries which were shown by her to the lady doctor who examined her. ( 10 ) IT is settled law that evidence of prosecutrix need not be corroborated by the evidence of other witnesses when the court finds that the evidence of the prosecutrix is above the board and her conduct is also above board. In the present matter it is not therefore, it needs to be seen that as to what the other evidence which has been collected by the prosecution in the investigation. It will have to be seen whether her evidence is corroborated by the evidence of the prosecutrix or is otherwise. ( 11 ) DR. Smt. Umesh Rathor (P. W. 1) stated in her evidence that on 27. 3. 1987 she examined, the prosecutrix Laxmibai wife of Rarneshchandra in civil hospital and at that time she noticed that there were no injuries on her body. She did not notice any signs showing that she had intercourse against her will and without her consent. There is also no reason for Dr. Smt. Umesh Rathor to State falsehood by saying that at the time of medical examination of the prosecutrix she did not notice any sign on her body showing that she had intercourse against her will and without her consent. It is her evidence that she did not notice any injury on her private part also. It is to be noted at this juncture that Laxmibai had stated categorically in her evidence that she sustained injuries in the process of said intercourse which shown to the lady medical officer who examined her. It is pertinent to note here that the prosecutrix Laxmibai was immediately medically examined by Dr. Smt. Rathor. ( 12 ) AT this juncture it would be necessary to see as what Rameshchandra, the husband of the prosecutrix Laxmibai stated in his evidence. It is pertinent to note here that the prosecutrix Laxmibai was immediately medically examined by Dr. Smt. Rathor. ( 12 ) AT this juncture it would be necessary to see as what Rameshchandra, the husband of the prosecutrix Laxmibai stated in his evidence. It has come in his evidence that on the same day prior to said night he had gone out of the town with his truck and was not likely to return back. However, he returned in the said night at about 2 P. M. and when he found that Laxmibai was not in the room in his house he started searching her and in that process he was going towards the adjoining room and at that time he saw that both the appellants were shoving Laxmibai, from the said room and at that time Laxmibai told him that both the appellants had committed rape on her. As he was of the opinion that legal action needed to be taken, he called Bariya, Kalu and Hemraj Sarpanch, his elder brother and Laxmibai narrated the incident to them and thereafter, he went to the police station for lodging report and police recorded F. I. R. of Laxmibai as stated by her. ( 13 ) P. W. Rameshchandra was unable to point out why he had not mentioned in the statement recorded during the course of investigation that he noticed that the appellants were shoving his wife out of the said room. Evidence of Hema Sarpanch is also to be seen in this context. Hema Sarpanch had not supported the prosecution case by saying that in the said night prosecutrix Laxmibai was not seen by him nor Laxmibai stated any thing to him. Though questions were asked to him in the nature of cross-examination nothing was brought on record that he was closed relative of the accused or was under the thumb of the accused and, therefore, he was stating in favor of the appellants. ( 14 ) AT this juncture it is necessary to see the evidence of investigating Officer, P. W. Ramswaroop who stated in his evidence that on 27. 3. 1987 he sent P. W. Laxmibai for medical examination and thereafter, prepared the map of the spot of the offence in presence of P. W. Laxmibai and at that time he prepared the Panchanama in respect of the spot of the offence. 3. 1987 he sent P. W. Laxmibai for medical examination and thereafter, prepared the map of the spot of the offence in presence of P. W. Laxmibai and at that time he prepared the Panchanama in respect of the spot of the offence. His evidence does not show that Laxmibai produced those blouse buttons or broken pieces of bangle before him and he seized them. It has not come in the evidence of Laxmibai indicating that about 2 A. M. in the said night she came out of her house for urinating in the statement, which was recorded by this Investigating Officer during the course of investigation. It is also not brought on record that Laxmibai stated in her statement during the course of investigation that when she came out of the house for urinating both the appellants caught her. It has also been brought on record in the evidence of P. W. Ramswaroop that at the time of recording her statement before the police she did not state that when she started shouting, the appellants threatened her that in the event of her shouting they would assault her by knife. It has also been brought on record that Rameshchandra had not stated before the police at the time of recording of his statement that he saw that the appellants shoved Laxmibai out of the said room of the Master. ( 15 ) R. W. B. S. , Police Station Officer, who recorded the F. I. R. of Laxmibai said that he recorded the F. I. R. of Laxmibai as stated by her and further mentioned in his evidence that Laxmibai did not state in Ex. P14, F. I. R. that she had gone out of her room at 2 or 2. 30 A. M. for urinating and both the appellants caught her. He sated that Laxmibai did not state in Ex. P/4 that at the time of said intercourse she was shouting and both the appellants threatened her that in the event of her shouting, she would be assaulted by them by knife. He further stated that Laxmibai did not produce the broken piece of bangles as well as disconnected buttons of the blouse, at the time of recording of Ex. P/4 that at the time of said intercourse she was shouting and both the appellants threatened her that in the event of her shouting, she would be assaulted by them by knife. He further stated that Laxmibai did not produce the broken piece of bangles as well as disconnected buttons of the blouse, at the time of recording of Ex. P/4 F. I. R. ( 16 ) IT is to be noted that it has come in the evidence that the said room of the Master was adjoining to the room where Rameshchandra and Laxmibai were residing so also, it has come in t the prosecution evidence that some persons were residing in the proximity of both those rooms. When it is so when prosecutrix Laxmibai was shouting when the appellants were committing sexual intercourse with her against her will, naturally somebody residing in the proximity would have been attracted by it and in that event they could have come there and would have been examined to support the prosecution case; Leave it aside, her children who were sleeping in the said room would have also got up and could have shouted to get help of the neighbourers for the purpose of rescuing their mother but evidence on record does not show that also. ( 17 ) THEREFORE, it is quite clear that Laxmibai had made deliberate development in her story by telling falsely that both the appellants had caught her, taken her to the said room of Master, when she came out of her room at 2 A. M. for the purpose of urinating. She had also made deliberate development in her story to show that after committing sexual intercourse against her will and without her consent both the appellants shoved her and immediately she narrated the same incident to her husband, who was present there. Had there been truth in her story, she would have stated the same thing in Ex. P/4, which was the earliest document and was recorded as her version by the police officer who record her F. I. R. It is important to note that at that time her husband was with her and she had sufficient time to narrate all the truth. A question arise as to why Laxmibai should state in that way against the appellants in the midst of contrary evidence on record in respect of her medical examination. A question arise as to why Laxmibai should state in that way against the appellants in the midst of contrary evidence on record in respect of her medical examination. It has come in the evidence adduced by prosecution itself that on the said day her husband Rameshchandra had gone out with truck by telling that he was not likely to come in the night. As per evidence on the record, husband of Laxmibai, Rameshchandra, got sufficient truck load and hence returned in the night and without her expectation and was present outside the said room when she was in the Masterts room alongwith the appellants. Thus she was caught in embarrassing situation in surprised way. When a wife has been caught in such surprised way in suspicious condition in odd hours of the night, what could have been say of such wife? As the human experience tells, such woman would prefer blame the persons who were in her association in such odd hours of the night. Laxmibai has done exactly the same as the evidence on record shows. She, thereafter, made attempt to show that she was innocent and whatever done by the appellants was without her will and without her consent and when she resisted, she was overpowered by the appellants by their vigour and by threatening her with a knife. Not only that, she stated that she resisted and in that process she sustained injuries and her buttons of the blouse were disconnected. She further wanted to justify herself by saying that broken pieces of bangles and those disconnected buttons were produced by her before Investigating Officer and her injuries were shown by her to lady medical officer, who examined her immediately. ( 18 ) ALL these things show that the prosecutrix was trying to make the appellant scape goats and was trying to absolve herself from the said possible blame, scolding by the husband and consequential calamities. The evidence on record indicates that she might have gone with the appellants in the said room voluntarily and might have had the sexual intercourse with her willingness and with her consent and she might have been caught in surprised way by the presence of her husband unexpectedly at such odd hours of the night. ( 19 ) THE learned trial Judge did not appreciation ate the evidence on record properly keeping in view this important aspect of the matter. ( 19 ) THE learned trial Judge did not appreciation ate the evidence on record properly keeping in view this important aspect of the matter. He incorrectly drew inferences against the appellants, which were not born by the evidence on record, natural conduct of human beings and experience of behavior of human beings. The learned Trial Judge committed an error in relying on the presumption without noticing that such presumption is reputable and the accused can rebut it by cross-examination. The learned Judge has appreciated the evidence on record in erroneous way. Thus, the trial Judge landed in error in convicting and thereafter, sentencing the appellants. 17. After hearing the arguments, examining the evidence carefully and cautiously, I do not have any hesitation in my mind that the evidence adduced by the prosecution in the present case against the appellants is not fit to be acted upon for basing the conviction. The order of conviction passed by the learned trial Judge is incorrect, improper and illegal. It needs to be set aside. Thus, appeal is allowed, hence the following order: The appeal is allowed. The order of conviction and sentence recorded by the learned Sessions Judge, Jhabua in S. T. No. 275/87 against the appellants for an. offence punishable under Sec. 376, I. P. C. is hereby set aside. Their bail bonds stand discharged. Appeal allowed. .