P. K. PATRA, J. ( 1 ) THE appellant Sudhansu Sekhar Sahoo @ Sudhansu Kumar Sahoo has been convicted under Sec. 376 I. P. C. and sentenced to undergo rigorous imprisonment for seven years vide judgment dated 28-4-1994 in S. T. No. 20/9 of 1994 passed by Sk. Jan Hossain, Additional Sessions Judge, Bolangir. The said judgment is under challenge in this appeal. ( 2 ) THE prosecution case briefly stated is as follows : The prosecutrix P. W. 1 - Wife of P. W. 5 and the appellant are co-villagers, being residents of village Nagaon, P. S. Tusura in the district of Bolangir. On 13-10-1993 morning P. W. 1 accompanied by her husband (P. W. 5) went to the field and while P. W. 5 was cutting grass in the field, P. W. 1 went in another direction to tend cattle. It is alleged that at about 10 P. M. while P. W. 1 was sitting under a tree, watching her cattle, the appellant came from behind and physically lifted her to a house situated nearly, aggged her mouth and threatened her to murder and committed rape on her. P. W. 1 returned home and narrated the occurrence to her mother-in-law and wife of her husband's brother (P. W. 2) who advised her not to inform P. W. 5. But on 17-10-1993 when P. W. 5 was informed about the occurrence, he fought with the appellant and on the same date P. Ws. 1 and 5 went to Tusura P. S. and P. W. 1 orally reported the occurrence to the O. I. C. of the P. S. (P. W. 7) who reduced the same to writting (Ext. 3), registered the case and took up investigation. During the investigation P. W. 7 examined the witnesses, visited the spot, seized six pieces of broken bangles, seized the wearing apparels of the prosecutrix, sent the prosecutrix for medical examination, arrested the accused/ appellant and sent him for medical examination, seized the wearing apparels of accused/appellant, sent the seized wearing apparels for examination at the R. F. S. L. , Sambalpur and after completion of investigation he submitted the charge-sheet against the appellant who stood his tial. ( 3 ) THE defence plea is one of denial and false implication due quarrel with the prosecutrix regarding tending of cattle in the field and due to previous enmity with the husband of the prosecutrix. ( 4 ) IN order to bring home the charge against the appellant, prosecution has examined seven witnesses. Out of whom P. W. 1 is the prosecutrix, P. W. 5 is the hsband of P. W. 1, P. W. 2 is the wife of the brother of P. W. 5, P. Ws. 3 and 4 are the medical officers who medically examined the prosecutrix and the appellant respectively. P. W. 6 is a co-villager of the parties who has been examined as an eye-witness to the occurrance but he turned hostile and did not support the prosecution case. P. W. 7 is the Investigating Officer. Defence has examined one witness in support of its case. ( 5 ) RELYING on the sole testimony of the prossecutrix (P. W. 1), the learned Additional Sessions Judge has convicted the appellant. Sri S. Mohanty, learned counsel for the appellant contended that the learned Additional Sessions Judge has failed to corretly appreciate the statements of the prosecutrix and other witnesses and has come to the erroneous conclusion holding the appellant guilty of the charge and that the order of conviction and sentence passed against the appellant are liable to be set aside. Sri R. K. Patnaik learned Additional Standing Counsel for the State supported the impugned judgment contending that a conviction can based on the sole testimony of the prosecutrix. The rival contentions require careful consideration. ( 6 ) THE prosecutrix (P. W. 1) has stated that while her husband (P. W. 5) went to cut grass in the field, she went to tend cattle in a different direction and while she was sitting under a tree near the house of the appellant where he has installed a rice hauller, the sappellant lifted her to that house, gagged her mouth with his towel and laid her down on the floor over busk and lifted her saree, saya and blouse and committed rape on her. She tried to shout and resist but in vain. After satisfying his lust, the appellant left her. She tried to shout and resist but in vain. After satisfying his lust, the appellant left her. According to P. W. 1, while the appellant tock her inside the house and while she came out of the house, Banmali Pradhan, (P. W. 6) witnessed the same. She has also stated to have cleaned her private part with her saree after the occurrence. After reaching home she narrated the occurrence to P. W. 2, the wife of the brother of her husband and also to her mother-in-law and both of them advised her not to disclose the occurrence to her husband (P. W. 5) apprehending that he would fight with the appellant. The alleged occurrence took place at about 8. 00 A. M. on Wednesday and according to P. W. 1 she disclosed the occurrance to her husband (P. W. 5) on the following Sunday after which she and P. W. 5 went to the appellant and when P. W. 5 challenged the appellant he was assaulted. In her statement in cross-examination, P. W. 1 has stated that she had not seen the appellant prior to the occurrence though he is a co-villager and she showed the appellant to P. W. 2 and mother-in-law who disclosed the name of the appellant to her. Further she had stated that when appellant lifted her by both his hands from the place of her sitting she was shouting and struggling to escape and she sustained injury on the left hand. She has also added that she sustained scratches on her breast at the time of intercourse and her bangles were broken on Sunday due to the assault by Giridhari Sahoo, father of the appellant. But strangely enough, the I. O. (P. W. 7) has stated to have seized six pieces of broken bangles from the spot alleged to have been broken at the time of rape on 13-10-1993 under seizure list, Ext. 4. P. W. 6 the only eye-witness to the occurrence has not supported the prosecution case and has supported the defence case that the prosecutrix and the appellant were quarrelling and he went near them along with one Tanks and directed them not to quarrel and they left the place. It is suggested to P. W. 1 that since the appellant had quarrelled with her for tending cattle in his field, this false case has been foisted against him. It is suggested to P. W. 1 that since the appellant had quarrelled with her for tending cattle in his field, this false case has been foisted against him. In his statement under Sec. 313, Cr. P. C. the appellant has stated that while he prohibited the prosecutrix (P. W. 1) from tending cattle in his field, she quarrelled with him and P. W. 6 and one Tanka intervened. P. W. 2 has stated that P. W. 1 narrated the occurrence before her in presence of her mother-in-law and both of them advised her not to disclose the occurrence to any male members apprehending quarrel and fight and that on the following Sunday P. W. 1 disclosed the occurrence to her husband (P. W. 5) and on the same day the occurrence was reported at the police station. She has stated that she did not mark any injury on the person of the P. W. 1 when she reported her the occurrence. It has been suggested to P. W. 5, husband of P. W. 1, that his father sold some land to the father of the appellant and that he was challenging the said sale and hence they are animically disposed of towards the father of the appellant and that due to previous grudge this false case has been foisted against the appellant. ( 7 ) THE Medical Officer (P. W. 3) has stated that on 18-10-1993 she medically examined the prosecutrix (P. W. 1) and submitted the report Ext. 1. According to her there was no sign or symptom of rape on P. W. 1. The victim's general behaviour and mental state were alright. There was no sign of struggle. There was no injury on her private part. No nail mark or teeth mark on the breast, chest or other parts of the body. There was no foreign particle present in the pubic hair and the public hair was not matted. The hymen was not in tact and it revealed erongation of the posterior fornix of vagina indicating previous sexual intercourse. Vaginal swad was collected and microscopically examined but no spermatozoa was found. In her statement in cross-examination P. W. 3 has stated that external injuries could have been marked if there was struggle even after five to six days gap. The Medical Officer (P. W. 4) medically examined the appellant on 18-10-1993 and submitted his report (Ext. Vaginal swad was collected and microscopically examined but no spermatozoa was found. In her statement in cross-examination P. W. 3 has stated that external injuries could have been marked if there was struggle even after five to six days gap. The Medical Officer (P. W. 4) medically examined the appellant on 18-10-1993 and submitted his report (Ext. 2 ). According to him there was no injury on the private parts of the appellant, there was no matting of pubic hairs. There was no foreign hair on the private parts of the appellant. The I. O. (P. W. 7) has stated to have seized the saree (M. O. I.), saya (M. O. II) and blouse (M. O. III) of the prosecutrix and the lungi (M. O. IV) of the appellant and sent the same for examination by the Deputy Director and Chemical Examiner to the Government of Orissa, R. F. S. L. , Sambalpur. The report of the Deputy Director reveals that the saya contained patches of semen but no opinion could be expressed due to deterioration. The saree and blouse and lungi contained no semen. As stated earlier, the prosecutrix (P. W. 1) has stated that she had wiped the semen with her saree after the intercourse and had it been so, the saree could have contained stains of semen, in the absence of any evidence that the said saree had been washed before it was seized by the I. O. ( 8 ) THE conduct of the prosecutrix (P. W. 1) in not disclosing the occurrence to P. W. 6 who was present nearby immediately after the occurrence and to her husband (P. W. 5) who was cutting grass in a nearby field immediately after the occurrence or for three days, faises grave doubt regarding the veracity of the statement of P. W. 1. Though she has stated that she sustained injury on her left hand and stretches on her chest, the medical officer (P. W. 3) did not confined any mark or injury on her person and any mark of rape on her. The wearing saree (M. O. I) of the P. W. 1 and the lungi (M. O. IV) of the appellant did not contain stains of semen. Though P. W. 1 has stated that her bangles were broken due to the assault by Girdhari Sahoo, the father of the appellant on Sunday, the seizurelist (Ext. The wearing saree (M. O. I) of the P. W. 1 and the lungi (M. O. IV) of the appellant did not contain stains of semen. Though P. W. 1 has stated that her bangles were broken due to the assault by Girdhari Sahoo, the father of the appellant on Sunday, the seizurelist (Ext. 4) reveals that the bangles were broken on 13-10-1993 at the time of rape and were seized from the spot. The belated submission of F. I. R. is also another factor to raise suspicion on the prosecution case and the chances of embellishment cannot be overrulled. Even if it is belived, for the sake of argument, that the appellant had sexually intercourse with the prosecutrix, the same could have been done with consent of the prosecutrix who is a married woman aged 19 years and not without her consent which is apparent from her conduct after the occurrence. ( 9 ) IN view of the discussions made above, the statement of the prosecutrix (P. W. 1) cannot be held to be trustworthy and it will be quite unsafe to place reliance on her to base a conviction of the appellant. Therefore, it is found that the learned Additional Sessions Judges overlooked the above circumstances and has come to the erroneous finding that the statement of the prosecutrix (P. W. 1) was, trustworthy and reliable and has erred in holding the appellant guilty of the charge under Sec. 376, I. P. C. and convicting him thereunder. Therefore, the impugned judgment convicting the appellant of the charge under Sec. 376, I. P. C. and sentencing him to undergo R. I. for seven years cannot be sustained and is liable to be set aside. ( 10 ) IN the result, the conviction of the appellant under Sec. 376, I. P. C. and the sentence passed thereunder against him are set aside and the appellant is acquitted of the said charge. He be set at liberty forthwith, if his detention is not required in any other case. The appeal is accordingly allowed. Appeal allowed.