JUDGMENT 1. This is an appeal under section 374 Cr. P.C. against the order of conviction recorded by A.S.J., Ashoknagar in Sessions Trial No. 5/96 convicting the appellant under section 457 and section 376 (I) Indian Penal Code and sentencing him to Rigorous Imprisonment for three years and for seven years respectively and also to pay a fine of Rs. 500/- and Rs. 1,000/- respectively and in default of payment of fine R.I. for three months and six months respectively. 2. The relevant facts for better understanding the case are as follows: P.W I Kapooribai aged 50 years is a widow lady, since a few years before the date of incident on 25.9.95, she lives with her son Ramsingh (not examined), daughter-in-law P.W. 2 Ramshribai (wife of Ramsingh), daughter Radhabai and Jankibai. Radhabai was aged about 16 years and Jankibai aged 10 years at the time of incident. Both these girls have not been examined in the Court. Kapooribai has in all seven children. The incident is alleged to have taken place on 25.9.1995 in the mid night at about 1,30 a.m. and report Ex. P/l was lodged on the next morning at 11.15 at police Station Ashoknagar which is at a distance of 2. Kms. from village Aavri. She was sent for medical examination on the same day after registration of crime and was examined by lady doctor P. Agrawal. As per medical report the doctor did not find any external injury nor any internal injury on private parts. The doctor could not give any definite opinion if intercourse was committed because the lady was already habitual to sexual intercourse. During investigation nine pieces of red colour bangles were seized on 29.9.1995 at village Aavri on production by prosecutix Kapuribai. 3. Prosecution story is narrated in the First Information Report Ex. P/1 is that the prosecutrix and her two daughters Radhabai and Jankibai and daughter-in-law Ramshribai were sleeping in the house. Her son Ramsingh was away to participate in Jaware (A sort of religious function during Navratri). It was at about 1.30 in the night that appellant Sultansingh came into the room where she was sleeping by opening the doors of the room which were not chained. The appellant came inside and just climbed over the prosecutrix, lifted her legs and penetrated his male organ in her private part. It was at about 1.30 in the night that appellant Sultansingh came into the room where she was sleeping by opening the doors of the room which were not chained. The appellant came inside and just climbed over the prosecutrix, lifted her legs and penetrated his male organ in her private part. She used force and pushed him but he did not leave her and continued intercourse and, therefore, she raised alarm. On hearing her alarm her daughter-in-law and the two daughters got awoke and did see the accused actually committing intercourse. However the accused left her only after satisfying his lust and ran away. According to prosecution her bangles were broken and were lying on the spot. It would be particular to mention that the FIR does not mention as to who accompanied prosecutrix to the police station. On her report police registered a case under Section 376 and 457 I.P.C. and investigated it. During investigation bangle pieces were recovered on the fourth day on production by the prosecutrix herself. Site map was prepared, prosecutrix was medically examined, witnesses were examined and thereafter charge sheet was presented. 4. Learned trial Court framed charge under Section 376 (1) and 457 of the Indian Penal Code. Accused denied guilt and pleaded that he has been falsely implicated because he had seen one Lalchand coming out from the house of prosecutrix on the alleged time of incident and to escape from defan1ation, the report has been lodged at the instance of Lalchand who is alleged to have affairs with the prosecutsix. 5. Prosecution examined prosecutrix Kapuribai and her daughter-in-law Ramshribai on the point of incident. Besides them, P.W. 3 lagdish Singh A.S.I. P.S. Ashoknagar has been examined who had arrested the accused on 4.11.1995 and P.W. 4 Arun Kumar Singh, Town Inspector who had recorded First Information Report. Ex. P/1. Prosecution witnesses Radhabai, Ramsingh, lankibai although present in the Court, were not examined by the prosecution on the ground that it would be a repetition. 5. A Learned trial Court placing reliance on the oral testimony of prosecutrix and her daughter-in-law P.W. 2 Ramshribai has concluded that the prosecution established the charges against the accused and has, therefore, convicted and sentenced as stated earlier. 5. A Learned trial Court placing reliance on the oral testimony of prosecutrix and her daughter-in-law P.W. 2 Ramshribai has concluded that the prosecution established the charges against the accused and has, therefore, convicted and sentenced as stated earlier. Learned trial Court did not believe the defence story and was of the view that the accused/appellant has by way of suggestions admitted his presence near the house of prosecutrix when he is said to have seen Lalchand coming out from the house of prosecutrix but the explanation for his presence that he and the defence witnesses were returning after' seeing Naudurga Jhanki is belied because the Navratri Pooja had not started by that time and, therefore, learned trial Court was of the view that accused could not properly explain his presence on that odd hours and, therefore, the prosecution story is more reliable. 6. In appeal, the findings of the trial Court have been challenged on the grounds inter alia that learned trial Court has failed to properly appreciate the oral testimony of the prosecutrix and P.W. 2 Ramshribai and has, therefore erred in concluding that guilt of the accused was established on the oral testimony of these two witnesses. According to appellant, the versions of P.W.1 Kapuribai and P.W. 2 Ramshribai, as regards the incident suffer from discrepancies and material contradictions on major points and the story as narrated is patently so unnatural that the oral testimony of the two should have been rejected. 7. I heard learned counsel on the two sides and perused the records. 8. It may be stated at the outset that there appears no material on record on the strength of which the learned trial Court has come to the conclusion that Navratri celebrations had not started on the day of incident. Learned trial Court has rejected the defence theory only on this ground that since Navratri celebrations had not started, there was no question that accused and his companion were returning after seeing Durga Jhanki. On the contrary, in FIR Ex. P/1 it is mentioned that Ramsingh son of prosecutrix was away from his house at that time as he had gone to attend Jaw are In para 14 of her statement, the prosecutrix Kapuribai has explained that the doors were not chained that night because her son was out to attend Jaware. 9. On the contrary, in FIR Ex. P/1 it is mentioned that Ramsingh son of prosecutrix was away from his house at that time as he had gone to attend Jaw are In para 14 of her statement, the prosecutrix Kapuribai has explained that the doors were not chained that night because her son was out to attend Jaware. 9. The prosecutrix has exactly reiterated the same story in her statement to the police under section 161 Cr. P.C. Ex. D-1 which she narrated in the FIR Her statement was recorded by police on 28.9.95 i.e. after three days of the incident. Till then the story was that when members of the family were sleepl1g the accused entered into the room by opening the un-chained doors and he straightway came to the prosecutrix, climbed over her, lifted her legs and penetrated her male organ and started intercourse and during this period, the prosecutrix tried to push him down but he did leave her and thereafter she raised alarm and the daughters and daughter-in-law got awoke and saw the accused on the body of the prosecutrix busy in intercourse. At the time of incident, Ramsingh was away from house. But when prosecutrix is examined in the Court, she changes the story. As per statement in the Court; story goes that when the accused opened the doors, prosecutrix got up and went upto the doors where the accused was standing and the accused then caught hold her by arms and forcibl1 took her into an other room where she was forcibly laid down on the ground and thereafter, the accused lifted her legs and forcibly committed intercourse with her. According to prosecutrix, the accused pressed het breast injured her by his nails and and then she raised alarm. On her alarm, her to daughters and daughter-in-law came into the room and actually saw the accused committing intercourse. According to her, later on when her son and other people of village came, she narrated the story to all of them. She has admitted that she lodged FIR Ex. P/1. In para 7 of her statement she stated that she raised alarm when she went upto the doors and noticed the presence 'of accused and on hearing alarm her daughters and daughter-in-law were got awoke. She further stated that her daughter-in-law and the two daughters were raising alarm when the accused was continuing intercourse. P/1. In para 7 of her statement she stated that she raised alarm when she went upto the doors and noticed the presence 'of accused and on hearing alarm her daughters and daughter-in-law were got awoke. She further stated that her daughter-in-law and the two daughters were raising alarm when the accused was continuing intercourse. In paragraph 8 she stated that it is in the presence of her daughters, and daughter-in-law that accused took her into the other room. Now if this part of the statement of the prosecutrix is to be believed then it meant that in the presence of daughters and daughter-in-law, the accused took the prosecutrix into the other room and made her fall on the ground and forcibly committed intercourse, despite protest by the prosecutrix herself and also when other three lady members were raising alarm. He did not care for the presence of the three ladies and continued with the intercourse and got up only after finishing his act It would be particular to mention here that during the trial the place of occurrence has changed in the sense that as per report Ex. P/1, the incident took place in the room where the all family members were sleeping but in the Court statement the incident took place in another room. The prosecutrix has denied the relevant parts of her statement Ex. D/1 wherein she has stated that intercourse was committed in the room where she was sleeping. P.W. 2 Ramshribai the daughter-in-law of P.W.1 Kapuribai has something different to tell in the Court. P.W. 1 Kapuribai not only in the FIR but also in the Court is very sure that her son Ramsingh was not in the house when the incident took place but was away to attend Jaware. But Ramshribai stated that she was sleeping in another room with her husband when the incident took place. According to her (Para 5 of her statement) she got awoke on hearing the alarm raised by P.W. 1 Kapuribai because the accused had caught hold her mother-in-law and her husband too got awoke but he did not go towards the room of his mother from where she was raising alarm. Not only that he did not go to mother's room even after he was told about the incident. Not only that he did not go to mother's room even after he was told about the incident. In para 6 of her statement, she stated that when she went to her mother-in-law's room after hearing the alarm, she found that accused was over the body of her mother-in-law and was committing intercourse but her Devar and Nanady were still sleeping in the same room, but immediately after this statement she has stated that her Devar and Nanads had got awoke after their mother raised alarm. Thus she makes two contradictory statements at the same point. However, she has emphasised in this paragraph that the two daughters and their younger brother were also sleeping in the same room where accused committed intercourse with Kapuribai. Now let us examine what P.W. 2 Ramshribai stated in her examination-in-chief. In para 1, she stated that she was sleeping with her husband and her mother-in-law was sleeping in another room and doors of the room were open. According to her when the accused entered into the room, her mother-in-law went upto the doors and the accused caught hold her and laid her down on the ground and lifted her peticot and then penetrated his male organ in the private part of the prosecutrix and continued intercourse for some time. She thus wants us to believe that she saw the whole incident from very inception when the accused caught hold the prosecutrix and actually penetrated his male organ. But it is borne out from her statement in paras 5 and 6 that she was in an other room and got up only after hearing the alarm of her mother-in-law and when she reached the other room the accused was already busy in intercourse. Thus, -the two different situations are not possible. It appears unimaginable, absurd and unnatural to believe that accused could be repeating his performance right from the beginning so as to enable each eye-witness to see the incident right from inception. If Ramsingh was very much present in the house as stated by his wife P.W. 2 Ramshribai, it is equally unnatural that he would show so much of indeference towards his mother and could not come to her rescue when she was being raped. Secondly, if he was really in the house, why it was insisted by his mother that he was out and returned after everything was over. Secondly, if he was really in the house, why it was insisted by his mother that he was out and returned after everything was over. It does not appeal to conscience keeping in mind the human nature that accused could forcibly rape the prosecutrix in the very presence of her two daughters and daughter-in-law who were quite yang. In the normal and natural course those three ladies would not have spared the accused and would have used physical force against him after seeing that he was forcibly committing intercourse on P.W. 1 Kapuribai. Therefore, the whole story is so much exaggerated that it is practically difficult to take out the portion of truth, if any, at all. It is true that in a matter involving offence of rape conviction could be based only on the oral testimony of the prosecutrix provided it is believable beyond doubt. But in the present case, the testimony of the prosecutrix looking to the improvements made in the story from time to time and looking to the discrepancies and contradictions in the testimony of the prosecutrix and P.W.2 Ramshribai, it is very difficult to believe them. The prosecution has to prove its case beyond reasonable doubt and it has to be done on its o\\n strength and not on the weakness of the defence. The law does not lay down burden on the accused to prove his defence. 10. For the reasons stated above, it is concluded that the prosecution has utterly failed to prove its case and learned trial Court has erred in placing reliance in the oral testimony of the prosecutrix and P.W.2 Ramshribai despite the fact that their oral testimony did not inspire confidence, Therefore, the findings of the learned trial Court deserve to be set aside. 11. For the reasons, appeal is allowed and conviction and sentences of the appellant under the impugned judgment for offences under Section 457 and 376 IPC are set aside.