P. K. PATRA, J. ( 1 ) APPELLANT Rabindranath Balliarsingh has been convicted u/s. 376 Indian Penal Code (for short 'ipc) and has been sentenced to undergo rigorous imprisonment for eight years by judgment dated 11-6-1993 passed by the learned Sessions Judge, Phulbani in Sessions Case No. 41 of 1992. The said judgment of conviction has been assailed by the appellant in this appeal. ( 2 ) PROSECUTION case as revealed in the FIR is as follows : On 13-11-1991 at about 10 a. m. while the victim P. W. 1 was returning from a rivulet near village Banjamaha under Daringibadi Police Station in the district of Phulbani, after washing her clothes, the appellant dragged her and committed rape on her despite her protest by gagging her mouth with his hand. At that time P. Ws. 2 and 3 happened to pass by that way and seeing them the appellant fled away from the spot. The Victim narrated the incident to P. Ws. 2 and 3 and after returning to her house narrated the same to her husband (P. W. 5 ). On the next day a meeting of the villagers was convened by P. W. 5 in which the mother and a cousin of the appellant agreed to pay fine, locally known as Pranjutopu, payable to the Panch members by the person accused of raping a Harijan woman. In case payment of Pranjutopu is made, no criminal case is instituted against the accused. In the present case, since no payment of fine was made within the stipulated period of eight days the case was instituted on 25-1-1991 on the oral report of P. W. 1 before the O. I. C. , Daringibadi P. S. (P. W. 8) which was reduced to writing as per Ext. 2. During investigation P. W. 8 examined the victim and the witnesses, seized one tin Diba in which the victim was carrying her clothes and the saree put on by her at the time of the occurrence. The victim was sent for medical examination. Attempt to arrest the appellant was in vain and he surrendered in the Court of the S. D. J. M. , Balliguda on 31-1-1992. The appellant was taken in police custody for interrogation and medical examination. After completion of the formalities of investigation, P. W. 8 submitted charge-sheet against the appellant who stood his trial. Attempt to arrest the appellant was in vain and he surrendered in the Court of the S. D. J. M. , Balliguda on 31-1-1992. The appellant was taken in police custody for interrogation and medical examination. After completion of the formalities of investigation, P. W. 8 submitted charge-sheet against the appellant who stood his trial. The defence plea was one of denial and false implication of the appellant due to previous enmity. ( 3 ) IN all eight witnesses have been examined by the prosecution to bring home the charge against the appellant. Out of them P. W. 1 is the victim woman, P. Ws. 2 and 3 are the two witnesses to the occurrence, P. W. 4 is a witness to the seizure of the Dibu (M. O. I) and the saree (M. O. II ). P. W. 5 is the husband of the victim. P. Ws. 6 and 7 are the medical officers who examined the victim and the appellant respectively. P. W. 8 is the investigating Officer. One witness has been examined in support of the defence case. ( 4 ) PLACING reliance on the statements of the prosecutrix (P. W. 1) and P. Ws. 2 and 3, the learned Sessions Judge has found the appellant guilty of the charge levelled against him. ( 5 ) MR. Rath, learned counsel for the appellant contended that the learned Sessions Judge has failed to appreciate the evidence on record and has erroneously placed reliance on P. Ws. 1, 2 and 3 and convicted the appellant, though the medical evidence on record does not support the prosecution case. The contention requires careful consideration. ( 6 ) IN the FIR, Ext. 2, it is alleged that the occurrence took place at about 9 a. m. to 10 a. m. on 14-11-1991 when the prosecutrix P. W. 1 was returning from the rivulet carrying washed clothes in a Diba on her head. While P. W. 1 has not given the time of the occurrence, P. W. 2 has stated that it was about 12 noon and P. W. 3 has stated that it was about 11 a. m. to 12 noon. In the FIR, Ext. While P. W. 1 has not given the time of the occurrence, P. W. 2 has stated that it was about 12 noon and P. W. 3 has stated that it was about 11 a. m. to 12 noon. In the FIR, Ext. 2, it is stated that a meeting was held next day in which Biswambar Balliarsingh, a cousin of the appellant, and the mother of the appellant agreed to pay Pranjutopu (fine) to the Panch members and there is no mention of presence of the appellant in that meeting though P. Ws. 1, 2 and 3 have stated that the appellant himself agreed to pay the fine, but in vain. They are silent regarding the presence of the cousin or the mother of the appellant in that meeting. According to P. W. 1, the appellant dragged her by her hand to a distance of about 5 to 6 cubits from the path, laid her down gagging her mouth with his left hand and committed rape on her at a bushy place and when P. Ws. 2 and 3 happened to pass by that way, the appellant left her and fled away. Both P. Ws. 2 and 3 have also stated that while they were going together to take bath in the rivulet, they noticed the appellant committing rape on P. W. 1 and that seeing them the appellant took to his heels. They have not stated as to whether they tried to apprehend the appellant or not although they have claimed to have seen the appellant from close quarters. P. W. 1 has stated to have sustained injuries on her both elbow joints and legs as she was laid down on the ground and in her statement in cross-examination she added that she did not sustain any injury on her buttock but felt pain and she sustained nail marks on her breasts due to squeezing by the appellant. Her saree (M. O. II) which she had put on at the time of the alleged occurrence has been seized and was sent for chemical examination, but no blood-stain or semen stain was found on it on preliminary examination by the Scientific Officer, R. F. S. L. , Berhampur and hence the same was not sent to the Director, State F. S. L. , Rasulgarh for further examination, as per Ext. 7. 7. Though P. W. 1 has stated that her wearing blouse was also torn, the same has not been seized. Ext. 6 is the seizure-list under which the saree has been seized. The I. O. , P. W. 8, has stated that he seized the saree (M. O. II) under the seizure list Ext. 6 on production by P. W. 1. Had she produced the torn blouse before the I. O. the same could have been seized along with the saree. But as it appears from the statement of the I. O. the torn blouse had not been produced before him for seizure. ( 7 ) REGARDING the alleged extra-judicial confession made by the appellant, the learned Sessions Judge has failed to notice the discrepancy in the FIR (Ext. 2) and the statements of P. Ws. 1, 2 and 3, inasmuch as in the FIR it is stated that a cousin and mother of the appellant agreed to pay the fine to the Panch members, apparently in the absence of the appellant, but P. Ws. 1, 2 and 3 have stated that the appellant himself agreed to pay the fine in the meeting. D. W. 1 has been examined in support of the defence case that no meeting of the Panch had been held in the village regarding the occurrence. The appellant in his statement under S. 313, Cr. P. C. has denied to have made any extra-judicial confession. So, the finding of the learned Sessions Judge on this score is erroneous and cannot be sustained. ( 8 ) BESIDES the above infirmities and inconsistencies in the statements of P. Ws. 1, 2 and 3 regarding the occurrence, the medical evidence on record does not support the prosecution case against the appellant. The medical officer P. W. 6 has stated to have medically examined the prosecutrix P. W. 1 on 27-11-1991 and submitted her report Ext. 3. According to her, there were no injuries externally, nor was there any blood stain on her person. There was no mark of injury on her breasts or labia majora and labia minora, pubic hair not matted, a few hymenal tags found present without bleeding and no spermatozoa was found on vaginal fluid during miscroscopical examination. According to her, there was no sign of rape. There was no mark of injury on her breasts or labia majora and labia minora, pubic hair not matted, a few hymenal tags found present without bleeding and no spermatozoa was found on vaginal fluid during miscroscopical examination. According to her, there was no sign of rape. ( 9 ) THE learned Sessions Judge has overruled the medical evidence and came to the finding that due to belated medical examination of the victim no injuries could be found on her person. The alleged occurrence took place on 14-11-1991. FIR has been lodged on 25-11-1991 and the victim has been medically examined on 27-11-1991. Had the victim sustained injuries on her elbow joints, legs and breasts, the medical officer P. W. 6 would have found the marks of injuries which could not have vanished or healed up during the period of 13/14 days. That apart, P. Ws. 2 and 3 who claim to be eye-witnesses to the occurrence have also not stated to have found any injury on the person of P. W. 1. There is also no evidence on record that P. W. 1 went to hospital for medical treatment immediately after the occurrence. In the above circumstances the learned Sessions Judge should have rejected the statement of P. W. 1 on this score and as such his conclusion in rejecting the medical evidence and accepting the ocular testimony of P. W. 1 is found to be unsustainable. The medical officer P. W. 7 medically examined the appellant on 31-1-1992 and his report Ext. 4 shows that the appellant was capable of committing sexual act. The delayed medical examination of the appellant is of no consequence in the present case. ( 10 ) AS it appears from the statement of P. W. 6, the victim was aged about thirty two years and was quite healthy. The victim (P. W. 1) has stated that she married for the second time after the death of her first husband. The appellant is aged about 23/24 years. Had the appellant forcibly committed rape on P. W. 1 against her will, she being a tribal lady, would have very well resisted him and escaped from his clutches. The victim (P. W. 1) has stated that she married for the second time after the death of her first husband. The appellant is aged about 23/24 years. Had the appellant forcibly committed rape on P. W. 1 against her will, she being a tribal lady, would have very well resisted him and escaped from his clutches. In other words, if at all it is believed for the sake of argument that the appellant had sexual intercourse with P. W. 1, the same would have been with consent of P. W. 1 which can be fortified from the finding of the medical officer that there was no injury on the person of the victim, the wearing saree having contained no mark of blood or semen, non-production of the torn blouse for seizure, absence of any mark of violence on the spot and absence of seizure of broken bangles from the spot which is a usual feature in a case of forcible rape. ( 11 ) IN view of the discussions made above, the statement of the victim (P. W. 1) as well as those of the eye-witnesses to the occurrence, i. e. P. Ws. 2 and 3, bristling with inconcistencies and infirmities, cannot be safely relied upon and a conviction cannot be safely based on their statements. The learned Sessions Judge erroneously placed reliance on the statements of P. Ws. 1, 2 and 3 although discrepancies and infirmities are there in their statements so as to render them incredible. Therefore, the finding of the learned Sessions Judge that the appellant is guilty of committing rape on the victim (P. W. 1) cannot be sustained and is liable to be set aside. ( 12 ) IN the result, the conviction of the appellant under S. 376, IPC and the sentence passed against him are set aside. The appellant is acquitted of the charge. He be set at liberty forthwith if his detention in custody is not required in any other case. The Criminal Appeal is accordingly allowed. Appeal allowed.