B. K. SHARMA, J. ( 1 ) THAT is an appeal against the judgement and order dated 18-2-1980 passed by Sri S. C. M. Tripathi, the then VIth Additional Sessions Judge, Azamgarh in S. T. No. 196 of 1977 (State v. Dayanand and another) under Section 376 I. P. C. P. S. Tharwa, District Azamgarh, whereby he convicted the accused appellant Dayanand of the offence under Section 376 IPC and sentenced him to undergo R. I. for a period of 3 years and 6 months. ( 2 ) HEARD the learned counsel for the parties and perused the record. ( 3 ) THE prosecution case as disclosed in the F. I. R. by Smt. Sudhiya victim at 10 p. m. at P. S. Tarya on 10-3-1974 was that while she was uprooting pea from her field in her village Meh Nagar, within the limit of police station Tarya, the present accused/appellant Dayanand and co-accused Ram Saran both residents of Meh Nagar, P. S. Tarya came near her and asked from her as to what was the way for going to village Kusmuliya and when she said that the Rasta for Kusmuliya passes from the East and they could also go by road, they came near her and fell her to the ground and they started committing rape upon her by removing her lugga (Dhoti) and that on her alarm witnesses came there, whereupon the accused persons left her. ( 4 ) THE medical examination of Smt. Sudhiya was made by the medical officer Sri A. K. Mazoomdar in the District Hospital on 11-3-1974 at 4. 30 p. m. He recorded the presence of multiple abrasions in an area of 8" x 5" over the back, middle and upper part. In his opinion it was caused by friction and its duration was about one day. ( 5 ) SMT. Sudhiya was medically examined by the Medical Superintendent of the women hospital, Azamgarh on 11-3-1979 at 5. 30 p. m. She found that her vagina admitted two fingers easily. Hymen torn and replaced by old healed granular tags. No sign of fresh injury present on her private part. ( 6 ) IT was not in controversy that the prosecutrix was of the age of consent. At the trial the prosecutrix Smt. Sudhiya claimed in her examination in chief that she was raped by Dayanand accused/appellant and thereafter by the co-accused Ram Saran. No sign of fresh injury present on her private part. ( 6 ) IT was not in controversy that the prosecutrix was of the age of consent. At the trial the prosecutrix Smt. Sudhiya claimed in her examination in chief that she was raped by Dayanand accused/appellant and thereafter by the co-accused Ram Saran. The prosecution had also examined two witnesses Rajbali P. W. 2 and Udit P. W. 3 as the witnesses of fact. The sessions Judge gave benefit of doubt to Ram Saran co-accused not only on the ground that his identity had not been established beyond doubt as he was named Ram Saran son of Namona in the F. I. R. while at the trial she named him as Shyam Narain and did not describe him by word alias anywhere and claimed that earlier also she had given the samenames of the culprits as she has given at the trial but also because in her evidence it had come out that she screamed just after accused Dayanand stood up (after committing rape) and the witnesses arrived and that (consequently) the co-accused might not have been able to commit rape. ( 7 ) THE learned counsel for the accused/appellant has challenged his conviction. He has argued that when the testimony of the prosecutrix were rejected as to the rape by the co-accused, the sessions Judge was not at all, justified in accepting her testimony as to the accused/appellant. He has drawn my attention to the observation by lady doctor Geeta Verma, P. W. 5 in the medical report that her vagina admitted two fingers easily, hymen torn and replaced by old healed granular tags and no sign of fresh injury present on her private part and argued that this observation indicated that she was used to sexual intercourse. He has drawn my attention to the observation by lady doctor Geeta Verma, P. W. 5 in the medical report that her vagina admitted two fingers easily, hymen torn and replaced by old healed granular tags and no sign of fresh injury present on her private part and argued that this observation indicated that she was used to sexual intercourse. He further pointed out that even though she was a married woman, she admitted in para 2 of her evidence categorically that her gauna had not taken place and her further statement in para-6 is that her marriage had taken place 2 years before the said occurrence and that her gauna took place one year after the occurrence, and that her husband had not done any intercourse with her before her gauna, that before the occurrence, nobody had committed any intercourse with her, that nobody had committed any intercourse with her against her will at any time before the occurrence and further that except the accused persons, nobody has committed any sexual intercourse with her. All these statements when read with the medical observation by the lady doctor, it becomes apparant that she was a girl of easy virtue. Against this background, the plea of the present accused/appellant taken from the very beginning that he was having a love affair with her and her householders were compelling her to leave the company (of this accused/appellant) assumes great significance. Infact, the defence plea is very much probabilised by the medical evidence aforesaid and her denial about the sexual intercourse by anyone with her prior to the present occurrence was a white lie and an eye wash. It is not surprising that she made a denial of the suggestion of illicit intimacy with the accused appellant in her cross-examination. Either she had been detected while having illicit intercourse with the accused/appellant or a story was concocted to rope in the accused/appellant when she refused to keep away from him. It may be mentioned here that she admitted in her examination in chief itself that both the accused were residents of separate houses and that she knew and identified both of them before the occurrence. In her cross-examination she admitted in para 14 of her evidence at the trial that the accused/appellant Dayanand used to visit her house off and on. In her cross-examination she admitted in para 14 of her evidence at the trial that the accused/appellant Dayanand used to visit her house off and on. ( 8 ) IT is true that the male doctor found multiple abrasions on her back but considering the totality of the circumstances, it is not possible to infer forcible intercourse with her. She did not have any injury on her private part. She claimed that her hands and feet had got abraded and that her buttock had also received abrasions. However, no such injuries have been recorded by any of the two doctors in her medical examination. Then she claimed that her dhoti had got torn at two places. She also claimed that she had shown the torn dhoti to the I. O. However, the I. O. has not collected any torn Dhoti. It will indicate that it was because no dhoti had been found torn. It is also be noted that the prosecutrix admitted that she was wearing glass bangles but her glass bangles have not been broken in the process of rape. ( 9 ) IT is true that there are two eye witnesses Rajbali P. W. 2 and Udit P. W. 3 and both of whom have supported the testimony of the prosecutrix. Rajbali stated that he heard the cries of the prosecutrix and reached at the spot he found her lying at the pea field and saw the accused persons running from field towards village Gahuni and that when they reached near her she made complaint against both the accused. Udit P. W. 3 similarly claimed that on hearing the alarm raised by her, they went to the spot and saw both the accused running from there and that the prosecutrix made a complaint to them. However, the first point to be noted is that the F. I. R. of this case has been scribed by Rajbali P. W. 2 and it is not a case where the prosecutrix went to the police station and dictated her F. I. R. to the clerk constable. Rajbali P. W. 2 styled himself as a total stranger to the prosecutrix. But Udit P. W. 3 has admitted that Smt. Sudhiya prosecutrix is a daughter of his brother and Rajbali P. W. 2 is the son of his younger paternal uncle. So none of these witnesses was an independent one. Rajbali P. W. 2 styled himself as a total stranger to the prosecutrix. But Udit P. W. 3 has admitted that Smt. Sudhiya prosecutrix is a daughter of his brother and Rajbali P. W. 2 is the son of his younger paternal uncle. So none of these witnesses was an independent one. Both of them were deeply interested in the success of the prosecution. Some of the contradiction relating to these witnesses may also be placed on record. Rajbali P. W. 2 claimed in para 6 of his evidence that the prosecutrixs bangles have broken and she has received abrasion in her wrist due to breaking of the glass bangles. As noted earlier, the medical report contradicts this averments of the witness. This witness has also stated that when he saw her for the first time, the prosecutrix was not naked but was having sari on her body and that he didnot see her wearing apparel torn. Udit P. W. 3 claimed that he had seen her glass bangles broken and injured her wrist. This was contradicted by the medical evidence. He has admitted that he did not see the Sari of the Prosecutrix torn and in this he contradicts the prosecutrix. ( 10 ) IN view of the above discussions of the facts and circumstances of the case it is impossible to sustain the conviction of the accused/appellant. He has to be given the benefit of doubt. ( 11 ) THE appeal is allowed. The conviction of the accused/appellant Dayanand for the offence under Section 376 I. P. C. is set aside and he is acquitted of the same. He is on bail from this Court. He need not surrender to it. His bail bonds are cancelled and sureties discharged. ( 12 ) A copy of this judgement be sent to the Sessions Judge concerned for information and compliance. Compliance report shall be submitted to this Court within two months from today. Appeal allowed. .