JUDGMENT 1. 1. Appellant Mahaveer alias Krishna has been convicted by the learned Additional Sessions Judge, Nohar under Section 376 Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and pay a fine of Rs. 5,000/-; in default further rigorous imprisonment for one year. 2. Smt. Banarasi lodged First Information Report (Ex. P/3) in the Police Station, Nohar on 5.8.1994 stating therein that at 4 p.m. she had gone to ease herself on the sand dune and when she was returning accused Krishna caught hold of her from behind, pulled and broke the string of her Salwar, flung her on the ground and committed rape on her and when she made cries for help, her uncle-in-law Hetram reached there and seeing him the accused ran away. On this report, a case under Section 376 IPC was registered. After usual investigation, challan was submitted. Accused appellant denied having committed any offence. The prosecution examined PW 1 Dr. Chandra Kumar, PW 2 Banarasi, PW 3 Bhadar Ram, PW 4 Anop Singh, PW 5 Gopalaram, PW 6 Randhir Singh, PW 7 Santosh, and PW 8 Het Ram. Accused in his statement under Section 313, Cr.P.C. stated that the witnesses have given false statements because Hetram owed some money to his father and when he asked him to return the money and caught hold him by his neck, he made false case against him. The learned Additional Sessions Judge after hearing the parties found the charge established against the appellant and convicted and sentenced him as above. 3. Arguments of learned counsel for the appellant and the learned Public Prosecutor have been heard. 4. The contention of Mr. Garg, learned counsel for the appellant was that the trial Court has erred in placing reliance on the testimony of Mst. Banarasi that she was subjected to forcible intercourse. He pointed out that no mark of violence on the private parts, chest, forearms or inner thighs were found by the medical officer, when he examined Smt. Banarasi on the next day and the injury which according to Smt. Banarsi was suffered by her, at the time of occurrence, was found to be about 15 days' duration. He further submitted that for the bruises noticed by the doctor Smt. Banarasi has not stated that she suffered them at the time of occurrence. He further submitted that for the bruises noticed by the doctor Smt. Banarasi has not stated that she suffered them at the time of occurrence. He has referred to the cases of Ram Nivas v. State of Karnataka, 1994 SCC (Cr.) 503 and Gopal Singh v. State of Rajasthan, 1980 Cr.L.R. (Raj) 349 . 5. Mr. Jakhar, learned Public Prosecutor, on the other hand, submitted that human semen was detected on the `Salwar' of the victim and the 'Chaddi' of the accused by the Chemical Examiner and various injuries were found on the person of Banarasi at the time of medical examination and a dead sperm was also found in the vaginal swab and therefore, it has been rightly held that rape was committed on Smt. Banarasi. Reliance has been placed on the observations made in the case of Bhogini Bhai Hiraji Bhai v. State of Gujarat, 1983 SC 753 . 6. Smt Banarasi (PW 2) has deposed that at about 4 p.m. when she was at the sand dune after easing herself, the accused went there, caught hold of her, broke the string of her Salwar by pulling, flung her on the ground and committed forcible intercourse though she continued to cry for help. She has deposed that there was discharge by the accused which had soiled her body. She had further deposed that the accused had bit on her both the cheeks. According to her the accused ran away seeing Hetram coming. Dr. Chandra Kumar (PW 1) has deposed that there was no injury found on the chest or thighs of Banarasi and there were also no marks of violence around vagina. It cannot be disputed that in case of sexual intercourse, without consent, by a man of almost of the same age of the prosecutrix, and the girl puts resistance and struggles and does not submit to sexual intercourse, then normally there should be marks of injuries on the face, wrist, forearms and the chest. It is also common knowledge that in case of rape, the active agent has to abduct the thighs so as to enable him to commit sexual intercourse and normally there should be bruises on the internal side of thighs. There should be dry semen stains and matting of the pubic hairs; vide Gopal Singh (supra). It is also common knowledge that in case of rape, the active agent has to abduct the thighs so as to enable him to commit sexual intercourse and normally there should be bruises on the internal side of thighs. There should be dry semen stains and matting of the pubic hairs; vide Gopal Singh (supra). Modi in his Jurisprudence and Toxicology, 21st Edition at Page 381 has expressed on the subject in these words: "Under ordinary circumstances it is not possible for a single man to hold sexual intercourse with a healthy adult female in full possession of her senses against her will, unless she is taken unawares, thrown accidentally on the ground and placed in such a position as to render her completely helpless, or unless she swoons away from fright or exhaustion after long resistance." 7. It may be noted that it is not a case where it is alleged that accused was having some weapon with him and he had shown that weapon to Smt. Banarasi so as to put her in frightened condition.Banarasi and the accused are almost of the same age. As stated, Smt. Banarasi had not sustained injury on her private parts, inner thighs, chest, forearm, wrist etc., it is difficult to believe that she had put resistance and struggled with the accused. 8. According to Smt. Banarasi, the accused had bit twice or thrice on her both the cheeks. However, not a single injury was found on the cheeks of Smt. Banarasi when she was medically examined. Of course, one teeth mark was noticed at the time of her medical examination but the doctor has clearly opined that this injury was 15 days old. It is, thus, clear that not a single mark was found on the cheeks of Banarasi and she has clearly belied in this respect. 9. According to Dr. Chandra Kumar, he had found four abrasions on the buttocks of Smt. Banarasi but Smt. Banarasi nowhere deposes that she had suffered any injury on her buttocks. Even her mother-in-law Smt. Santosh (PW 7) has also not deposed that there was any injury on the buttocks of Banarasi. Of course, it may be said that the buttock injuries could say not be seen by Banarasi but Banarasi certainly could say that she felt pain on her buttocks. She has not stated so. Even her mother-in-law Smt. Santosh (PW 7) has also not deposed that there was any injury on the buttocks of Banarasi. Of course, it may be said that the buttock injuries could say not be seen by Banarasi but Banarasi certainly could say that she felt pain on her buttocks. She has not stated so. In these circumstances, it is difficult to accept that the buttock injuries were suffered by Banarasi at the time of occurrence. In this connection it may also be pointed out that the occurrence is said to have taken place on sand dune. There is absolutely no evidence on record to say that some stones or iron bars or any other hard material were lying at the place of occurrence. The contusions can be sustained only when the body comes in contact with hard surface or blows are caused by blunt weapon. By friction of the sand, only abrasions could be sustained. As already stated, Smt. Banarasi has not deposed to have suffered even pain on her buttocks. Therefore, it cannot be found that the contusions on the buttocks were sustained by Banarasi at the time of occurrence. It has been suggested to Banarasi in cross examination that she was given beatings by her in-laws. She has, of course, denied and the accused has not led evidence on the point but in any case when we have found that the contusions on the buttocks were not sustained during occurrence, the defence version cannot be lightly brushed aside. 10. Dr. Chandra Kumar has deposed that there was abrasion on the right little finger of Banarasi. However, Banarasi has not deposed to have sustained this injury also. This injury could certainly be seen by Banarasi and when she has not deposed that she sustained this injury at the time of occurrence, it cannot be found that she had suffered this injury while struggling with the accused. 11. One abrasion was found at the right side of the chin of Banarasi. According to the prosecutrix she suffered this injury when the chain of the watch worn by the accused touched her cheek. It is possible to have suffered this injury in this manner. However, this injury is not indicative of the fact that there was forcible intercourse. Even when the sexual intercourse took place with the consent of Smt. Banarasi, such minor injury could be sustained. It is possible to have suffered this injury in this manner. However, this injury is not indicative of the fact that there was forcible intercourse. Even when the sexual intercourse took place with the consent of Smt. Banarasi, such minor injury could be sustained. It may be stared that Banarasi has not deposed that she sustained this injury when she put resistance. It is, thus, clear that the statement of Smt. Banarasi regarding forcible intercourse is not corroborated by the medical evidence. 12. Smt. Banarasi while giving description of the occurrence has deposed that after she was made to fall on the ground, the accused broke the string of her salwar, undressed himself and thereafter removed her Salwar, put them aside and committed complete intercourse. The circumstance that the string of the Salwar was broken is not proved on record. In the recovery Memo Ex. P/10 it is not stated that the string of the Salwar was in broken condition. Even Randhir Singh (PW 6) Investigating Officer has not stated that at the time he recovered the Salwar, its string was broken. In these circumstances, it cannot be believed that the string of the Salwar was broken. The facts which have appeared in the statement of Banarasi that accused removed his clothes first and thereafter he removed Salwar and put them aside and she did not know where he had put the clothes and it was the accused who had given her Salwar to wear, go to show that it was certainly not a case of forcible intercourse. If Smt. Banarasi is to be believed on these facts, it will have to be found that it was a case of consent. She was of the same age as that of the accused. She could certainly put strong resistance. She had enough opportunity to run away from the place of occurrence when the accused was busy in removing his pant and underwear. She did not make such an attempt even. This goes to show that it was nothing but a case of consent. 13. The learned trial Judge has believed the case of rape on the ground that a dead spermatozoa was found in the vaginal swab by the doctor. Smt. Banarasi was married lady. She did not make such an attempt even. This goes to show that it was nothing but a case of consent. 13. The learned trial Judge has believed the case of rape on the ground that a dead spermatozoa was found in the vaginal swab by the doctor. Smt. Banarasi was married lady. Modi in his jurisprudence 21st Edition page 376 has opined that the presence of Spermatozoa in the vagina after intercourse has been reported by Pollak (1943) upto 17 days and by Morrison (1972) upto 9 days in vagina and 12 days in the cervix. 14. Though Smt. Banarasi in her cross-examination has stated that her husband was out for last about 10 days on which point there is no evidence of Santosh, her mother-in-law, yet even assuming the statement of Banarasi to be correct, the presence of dead spermatozoa does not lead to definite conclusion that it was a case of forcible intercourse. It may be stated here that in the chemical examination no human semen was detected in the vaginal swab and the pubic hairs of Banarasi whereas according to her she had not taken bath and there were stains of semen on her body as also pubic hairs. This circumstance even negatives the sexual intercourse. Be that as it may, even if we accept the version of Banarasi that accused had committed sexual intercourse on her, in the circumstances it has to be found that it was not a case of forcible intercourse and Smt. Banarasi was consenting party to such sexual intercourse. 15. It appears that at the time of the alleged sexual activity, Hetram (PW 8) who is uncle-in-law of Banarasi reached there. The possibility that Smt. Banarasi has levelled accusation of forcible sexual intercourse by the accused on account of instinct of self preservation cannot be ruled out. In the case of Bhogini Bhai (supra) the Hon'ble Apex Court has clearly observed as follows:- "Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is likelihood of her having levelled such accusation on account of instinct of self preservation or when the `probabilities-factor' is to be found out of tune." We have already seen that the medical evidence does not corroborate the statement of Smt. Banarasi. It is also not irrelevant to state here that according to Banarasi the ladies of the area used to tell her that accused had good approaches. Her statement is to this effect: " d`".k ds ckjs yqxkbZ;ka ftdz djrh Fkh fd mldk cgqr jMko ( esytksy ) gS rc ls tkurh gwWaA " This shows that because of the popularity of the accused, Banarasi was attracted towards him and whatever had taken place at the time of occurrence was with her consent but unfortunately Het Ram reached there and he found them in such a position that it became necessary to make a report of the matter in order to save the prestige and honour of the family. 16. The result of the above discussion is that the case against the accused is not proved beyond reasonable doubt. The appeal is accepted. The judgment of the learned Additional Sessions Judge convicting and sentencing the accused appellant under Section 376 Indian Penal Code is set aside. The accused appellant is acquitted of the offence under Section 376 Indian Penal Code. He is in custody. He shall be released forthwith if not required in any other case.Appeal Allowed. *******