A. S. TRIPATHI, J. ( 1 ) THIS appeal has been filed against the judgment and order dated 31-3-1994 passed by Additional Sessions Judge, Ashoknagar, District Guna, whereby appellant has been convicted u/section 376. I. P. C. and sentenced to seven years R. I. and to pay a fine of Rs. 200/- and in default of payment of fine, to further undergo rigorous imprisonment for one month. Appellant has further convicted u/section 506-11, I. P. C. and sentenced to two years R I. ( 2 ) ACCORDING to the prosecution case, it was alleged that on 31-3-1989 at 10. 30 a. m. reporter prosecutrix Smt. Siyabai was collecting cow dung cakes in the nearby her. It was a harvesting season and nearby fields were being harvested by certain people. Appellant Kallu is said to have reached the prosecutrix and dragged her to nearby bushes and he is said to have forcibly committed rape upon her. The lady raised cries and heard by witnesses like Basanta, Himmat Singh and Amar Singh are said to have reached the spot. Thereafter, the prosecutrix is said to have disclosed to them that rape has been committed upon her by the appellant. ( 3 ) THE F. I. R was lodged by the reporter very day at 4. 30 p. m. at P. S. Ashoknagar. Prosecutrix Smt. Siyabai was examined the same day by Dr. Urmil Agrawal and the medical report Ex. P16 was proved on record. After completing the investigation, challan was submitted. Appellant was charged u/sections 376 and 506-11, I. P. C. Prosecution witnesses P. W. 1 Smt. Siyabai, P. W. 2 Balkishan, P. W. 3 Balbir, P. W. 4 Basanta and P. W. 5 Laxmansingh were examined on the question of fact. Other witnesses are formal witnesses. ( 4 ) APPELLANT had denied the charge and stated that he has been falsely implicated on account of previous enmity with the family members of the prosecutrix and other persons in respect of business transaction of selling utensils. Father of the appellant was said to have been selling utensils. In the trial, no other evidence was produced in defence. The Trial Court after examining the record came to the conclusion that the charges u/sections 376 and 506-IT, I. P. C. were made- Out against the appellant and he was convicted and sentenced accordingly. ( 5 ) I have heard Mr. In the trial, no other evidence was produced in defence. The Trial Court after examining the record came to the conclusion that the charges u/sections 376 and 506-IT, I. P. C. were made- Out against the appellant and he was convicted and sentenced accordingly. ( 5 ) I have heard Mr. B. L. Bhargava and Mr. V. Bhargava, learned Counsel for the appellant/accused and Mr. M. K. Jam, Deputy Government Advocate for the State and examined the record. ( 6 ) THE main contention raised on behalf of the appellant was that he has been falsely implicated on account of previous enmity. The appellant himself had stated in his statement u/section 313, - Cr. P. C. that he will lead evidence on the point of enmity, but no evidence was led in defence. Therefore, defence of the appellant that he was falsely implicated on account of enmity for the aforesaid charges was rightly rejected by the Trial Court. ( 7 ) THE next point raised was that the charge u/section 376, I. P. C. is not made out in this case. At the most, even if the prosecution version is believed, the charge u/section 354, I. P. C. could be made out. On this point, reference was made to the medical report of the lady doctor Smt. Urmil Agrawal, who had examined the lady on that very day in the evening at 7. 30 p. m. The lady doctor had found that the prosecutrix was 25 years of age, accustomed to sexual intercourse. In the examination of private parts, the doctor prepared vaginal smear slides packed and sealed and sent for chemical examination. In the opinion, the doctor says that the injury like abrasions caused on the body of the prosecutrix were of simple and rough. The final opinion given by the lady doctor was that the lady is habitual to sexual intercourse and it is difficult to say whether any intercourse has been done with her recently or not. This opinion of the doctor helped the defence to say the actual commission of rape has not been proved in view of this medical report. ( 8 ) THE same medical report was proved by the lady doctor, who was examined as P. W. 8. This opinion of the doctor helped the defence to say the actual commission of rape has not been proved in view of this medical report. ( 8 ) THE same medical report was proved by the lady doctor, who was examined as P. W. 8. In her examination-in-chief the lady doctor indicated that there was some abrasion on the elbow of the prosecutrix, but no injury was found, either on her private parts or any place nearby. Even the superficial signs of rape like situation of heirs etc. were also not decipherable at the time of the medical examination proved that recent intercourse was committed with the lady on that very day. The lady doctor had taken precaution that clothes of the prosecutrix were kept in a sealed cover, vaginal smear slides were prepared to confirm whether intercourse was committed with the lady at the time of the incident and the same were sent for chemical examination, but the report of the Chemical Examiner was not received on record. The learned Trial Court completely ignored this fact while deciding the case on merits. From the statement of the lady doctor and the medical report it is very doubtful as to whether appellant had actually committed rape upon the prosecutrix on that very day. Report of the Chemical Examiner was not received on record. In absence of any such evidence, the defence could very well argue that since intercourse is not proved on record, at the time of the incident, no charge u/section 376, I. P. C. could be made, out. Even if the prosecution version is believed that could be at the best, an attempt might have been made by the appellant. Since no charge for attempt has been framed and since there is no positive evidence regarding intercourse, the question of attempt does not arise. ( 9 ) NOW it remainst whether the testimony of prosecutrix Siyabai and other witnesses is to be accepted as such or the same to be scrutinised in the light of the medical evidence. ( 10 ) P. W. 1 Smt. Siyabai had stated that actually rape was committed upon her by the appellant. But this fact is not seen by any of the witnesses who could support this contention of the prosecutrix. ( 10 ) P. W. 1 Smt. Siyabai had stated that actually rape was committed upon her by the appellant. But this fact is not seen by any of the witnesses who could support this contention of the prosecutrix. Even P. W. I Smt. Siyabai herself admitted that she had raised cries and thereupon the appellant left her and ran away towards a particular side. When the witnesses Himmat Singh and others reached her, she narrated to them that appellant had actually committed rape upon her and then ran away. She had further stated that appellant had a knife and in the fear of knife, she could not raise cries earlier. This statement rather supports the defence and not the prosecution. It was also put to the witness that in the report and the statement she had given name of one Laxman Singh as a witness, but the same was not mentioned in the case diary or in any paper. Therefore, the testimony of Laxman Singh was also excluded by the same witness. ( 11 ) THE other witness is Bal Kishan P. W. 2, who is the husband of the prosecutrix. He simply went to the Police Station to lodge the F. I. R. and not the eye-witness of the occurrence. The prosecutrix is said to have reported to him of the incident. P. W. 3 Balbir is also not an eyewitness of the commission of rape and he was simply said to have seen that the appellant was running away. This witness admitted that the prosecutrix was abusing Kallu and did not say anything. Similarly P. W. 4 Basantha also did not see the incident and did not support the prosecution case. He stated that he had not seen Kallu nearby or anywhere nearby. The statement given by this witness to the Investigating Officer was confronted. According to him only Smt. Siyabai the prosecutrix was weeping and when he reached there, she did not say anything. She simply stated that appellant had caught hold of her and that is why she could not disclose to them on account of her shyness. This witness therefore, did not support the version of the prosecutrix regarding commission of rape. This witness is the uncle of the husband of the prosecutrix and he had simply admitted that he had not seen appellant committing rape. This witness therefore, did not support the version of the prosecutrix regarding commission of rape. This witness is the uncle of the husband of the prosecutrix and he had simply admitted that he had not seen appellant committing rape. He simply said that the prosecutrix was weeping when appellant caught hold of her and when she raised cries, he ran away. In view of the statement given by this witness Balbir it only appears that the appellant had caught hold of the prosecutrix whereby outraged her modesty, and there still remains to be proved by the prosecution that alleged rape was committed upon the prosecutrix. This witness has belied the story of the prosecution that rape was committed upon the prosecutrix. Similarly P. W. 5 Laxman Singh was also produced who also did not support the prosecution case. He simply stated that when he reached the spot on hearing cries of the prosecutrix, witnesses Himmat Singh and Basantha were already there and he did not ask anything to the prosecutrix. Therefore only the version given by the prosecutrix remains that appellant had committed rape upon her and she was weeping on that count. Therefore testimony of this witness coupled with the statement of Vasantha discloses that appellant had outraged modesty of Smt. Siyabai and that is why she was weeping. However, commission of rape has not been proved either by medical or by oral evidence. ( 12 ) THE report of the Chemical Examiner is also not received on record to support the charge of commission of rape upon the prosecutrix. Therefore, in these circumstances, I find that the charge u/section 376 or u/section 506-Il. I. P. C. is not made out against the appellant and the conviction of the appellant under those sections is not supported by any evidence and is set aside. Instead, a charge u/section 354, I. P. C. is clearly made out against the appellant from the evidence on record as also the medical report in which abrasions were found on the body of the prosecutrix. The best evidence on record for commission of rape would have been the report of Chemical Examiner, with regards to the clothes and vaginal smear slides, the said report has not been placed on record and in absence of the said report, the evidence for commission of rape is totally missing in the present case. The best evidence on record for commission of rape would have been the report of Chemical Examiner, with regards to the clothes and vaginal smear slides, the said report has not been placed on record and in absence of the said report, the evidence for commission of rape is totally missing in the present case. ( 13 ) THREATS alleged to have been given by the appellant to the prosecutrix punishable u/section 506-IT, I. P. C. where in the same series before the alleged commission of rape and therefore the charge u/section 506-Il, I. P. C. could not be made out in this case. Had the appellant given threats after commission of rape threatening her to dire consequences, if report was lodged or she discloses to anybody, then of course this charge could be established. Since there is no evidence that after commission of the alleged rape, threats were given by the appellant to the prosecutrix, therefore, the charge u/ Section 506-11, I. P. C. is not made out against the appellant. ( 14 ) IN view of the discussions made above, only charge u/section 354 is established against the appellant for which he is liable to be punished. At this stage, learned Counsel for the appellant prayed that the appellant is already in jail for more than one and half years, and in the circumstances of the case, the same may be taken to be sufficient punishment. However, the fine of Rs. 200/ - was also imposed and that fine be taken to have been imposed under that charge as well and the same shall be forfeited to the State. Since the appellant is already in jail for more than one and half years, the period already undergone by him in jail is taken to be sufficient u/sec. 354, I. P. C. which is established on record. ( 15 ) IN the result, the appeal is allowed in part. Conviction and sentence of the appellant u/secs. 376 and 506 Part II, I. P. C. is set aside; instead he is convicted u/sec. 354, I. P. C. and sentence of his imprisonment is reduced to the period already undergone by him. The judgment and order of the learned Trial Court is modified to the extent indicated above. Appellant Kallu is in jail. He shall be released forthwith, if not wanted in any other case. Appeal allowed partly. .