SHAMBHOO SINGH, J. ( 1 ) THIS appeal is directed by the accused against the judgment and order dated 29-8-1989 passed by lind A. S. J. , Ratlam in S. T. No. 15/88 whereby the appellant was acquitted of the charge under Sections 363 and 366, IPC but was convicted for offence under Section 376, IPC and sentenced to seven yearst RI. and to pay a fine of Rs. 500/- in default of payment of fine six months RI. ( 2 ) THE prosecution case in brief was that on 28-7-1987 Mulibai (PW 13) came from Anand to Ratlam alongwith her grand-daughter Somli (PW6) and son Raju and was sitting in waiting room. She asked Somli to take Raju outside for taking water. After some time Raju returned alone and Somli did not come. On this, she lodged F. I. R at Railway Police Station, Ratlam. The appellant was travelling in the same compartment with Mulibai. He enticed Somli and induced her to board other train and told her that he will take her to Bombay. When they were alone in the Railway compartment the appellant committed sexual intercourse with her against her will and consent. On Meghnagar police came in the compartment and apprehended the appellant and Somli and brought them to Ratlam. Somlibai was medically examined by Dr. Poornima Subedar (PW 12) who could not give definite opinion whether rape was committed on her. She was examined by Dr. Jam (PW 8) for confirmation of age by ossification test. Dr. Jam opined that she was aged about 16 years vide report Ex. P5. The appellant was examined by Dr. H. K. Dubey (PW 7) who opined that the appellant was capable of performing sexual intercourse vide report Ex. P4. After completion of investigation challan was filed. The learned A. S. J. held that Somlibai was aged about 18 years and she had gone voluntarily with the appellant and acquitted him of the charge under Sections 363/366. I. P. C. but held him guilty under Section 376. I. P. C. Hence, this appeal. ( 3 ) MR. Jaisingh, learned Counsel submitted that the learned trial Judge himself held that the prosecutrix was aged about 18 years and went with the appellant out of her free will. He submitted that from the medical evidence. It is clear that the appellant did not commit sexual intercourse with her. Dr. I. P. C. Hence, this appeal. ( 3 ) MR. Jaisingh, learned Counsel submitted that the learned trial Judge himself held that the prosecutrix was aged about 18 years and went with the appellant out of her free will. He submitted that from the medical evidence. It is clear that the appellant did not commit sexual intercourse with her. Dr. Poornima Subedar found no injury on her body or private part and found her hymen intact. He further contended that no semen or spermatozoa were found on the slides of vaginal smear of the prosecutrix. Mr. Khare. Dy. G. A. supported the impugned judgment. ( 4 ) I considered the argument advanced by Counsel for the both sides and perused the record. It is true that Somlibai (PW 6) deposed that the appellant enticed her and got her board the train from Ratlam telling her that he will take her to Bombay. After leaving Ratlam, when no passengers were in compartment, the appellant forced her to lie on the berth and committed sexual intercourse against her will and consent. The appellant ejaculated in her vagina and she also got discharged. She stated that there was bleeding from her vagina. But the statement of the prosecutrix stands falsified by the version of Dr. Poornima Subedar. Dr. Poornima examined her on the date of incident itself. She did not find any injury on her body nor found any injury on her private part. Her hymen was intact. She prepared slides of her vaginal smear and handed over the same to the Constable. The slides and petticoat of the prosecutrix and the underwear of the appellant were sent to F. S. L. Sagar for Chemical Examination. The Chemical Examiner in his report Ex. P18 opined that there was no semen or spermatozoa on the slides prepared from the vaginal smear of the prosecutrix. It is true that semen and spermatozoa were found on the Janghiya and petticoat of Somlibai. But the fact that hymen of Somlibai was intact and no semen or spermatozoa were found in the vaginal smear of Somlibai makes it clear that sexual intercourse was not committed with her. The prosecutrix was telling a lie reliance cannot be put on her testimony. But the fact that hymen of Somlibai was intact and no semen or spermatozoa were found in the vaginal smear of Somlibai makes it clear that sexual intercourse was not committed with her. The prosecutrix was telling a lie reliance cannot be put on her testimony. In my opinion, the learned trial Judge fell in error in holding that it was proved that the appellant committed sexual intercourse with the prosecutrix without her will or consent. ( 5 ) IN the result, the appeal is allowed. The conviction or the appellant under Section 376. I. P. C. and sentence awarded thereunder are set aside. The appellant is on bail his bail bonds are discharged. Appeal allowed. .