Judgment S.N.Pathak, J. 1. This appeal directed against the Judgment and order of conviction and sentence passed Shri Roshan Lal Sharma, 5th Additional Sessions Judge, Nalanda in Sessions Trial No. 110 of 1997. The appellant was convicted under Sec. 376 as also under Sec. 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and one month respectively. Both the sentences were directed to run concurrently. 2. The case of the prosecution, as recorded in the complaint-petition of the victim. Quraisha Khatoon is that on 146-1996, at about 8 p.m., she had gone out of her house to ease herself in a field behind boring. Suddenly, the accused appellant Qurban and one unknown person pounced upon her and pressed her mouth. The unknown person was weilding a pistol in his hand who threatened to kill her. Thereafter, the accused-appellant as also the unknown person subjected her to criminal assault one by one. When the complainant used to resist, she used to be fisted by the culprits on her mouth. After the alleged occurrence, both the culprits fled away and when they had gone away to some distance, she raised alarm which attracted the witnesses who saw the culprits in flight. The complainant disclosed the entire occurrence to the witnesses who had gathered there. The complainant did not go to the Police Station in the night of the occurrence out of fear. In the next morning at 5 a.m., she went to Bihar P.S. but her case was not entertained there. Subsequently, she filed her complaint-petition in Court which was referred to the Police for investigation. The Police after investigating submitted charge-sheet and after cognizance and commitment, the appellant faced trial and was convicted and sentenced as stated above. 3. The accused denied the charge and alleged false implication and produced five DWs from whose evidence it has been elicited that there was a hand pump in front of the house of the complainant which had gone out of order. The mohalla people wanted subscription to repair the same in which there was a quarrel between the accused-appellant and the complainant in which she sustained injury on her eyes. Then, she threatened to implicate the accused in some case and the instant case was a sequel to the aforesaid incident. 4. The prosecution examined in all five witnesses. P.W. 5 is the I.O. of the case. Then, she threatened to implicate the accused in some case and the instant case was a sequel to the aforesaid incident. 4. The prosecution examined in all five witnesses. P.W. 5 is the I.O. of the case. He has proved formal FIR, etc. and so far as the alleged occurrence itself is concerned his evidence is based on the statements of other witnesses. He had visited the P.O. He found human excreta at the P.O. and no other significant material. P.W. 4 is the doctor who examined the victim on 15-6-1996 at 3.45 p.m., and I shall discuss his evidence later. P. W. 3 is Soghra Khatoon. She is mother of the victim lady. She had learnt about the alleged occurrence from her daughter, the complainant. She had gone to the P.O. on hearing cry of her daughter. P.W. 2 is Roshan Khatoon. She is daughter of the victim and she is also hearsay witness who came to know about the alleged occurrence from her mother. P.W. 1 is the victim herself. So far as her evidence on the alleged occurrence in particular is concerned, it is almost the same, as stated in the complaint petition except on certain points, which according to the appellants lawyer tarries more importance. The appellants lawyer pointed out that there is her statement in the complaint petition that when the accused persons had gone away to some distance the victim had raised also. In her evidence in court, she said that the accused-persons after committing the occurrence remained there and they terrified the witnesses. This is at paragraph 27 of her evidence where she said that Roshan Soghra Sharif and others came after the occurrence whom the accused-persons threatened. She however, did not disclose the names of others Sharif has not been examined. At paragraph 33, she said that she went to the P.S. Where she related the alleged occurrence, but she did not show the stained clothe to the Police. Then, the Police cannot entertain the case and asked her to go to Court. On the basis of the aforesaid statement, it has been argued that there was no occurrence or rape against this lady and, therefore, she did hot produce any stained-cloth before the Police. 5. Now, I shall discuss the evidence of the doctor. Then, the Police cannot entertain the case and asked her to go to Court. On the basis of the aforesaid statement, it has been argued that there was no occurrence or rape against this lady and, therefore, she did hot produce any stained-cloth before the Police. 5. Now, I shall discuss the evidence of the doctor. P.W. 4 is the doctor who has stated that he had found one thigh injury which was 1" x 3/4" on the left side of the thigh. It was simple injury caused by hard and blunt substance. The doctor further did not find any injury on the vulva and perineum. There was no foreign hair oh the vulva and perineum and hymen was old ruptured. There was also no injury inside the vagina. On microscopic examination of the vagina no spermatozoa was found. The doctor further opined that the lady was habituated to sex. There was no spermatozoa also 41 the vaginal cavity. So in the doctors evidence no objective evidence about the alleged rape could be found. The doctor in crossexamination by the accused has said that he did not find any violent injury on the body of the victim except simple injury on the thigh. There was also no injury on the back of the victim. He did not also find any sign or symptom of recent sexual intercourse. 6. In View of the defence evidence and the complainants evidence, it is apparent that on the alleged occurrence of rape, there is sole testimony of the complainant and corroborative evidence of other witnesses is hunted by their interestedness as suggested by the appellants lawyer. So admittedly, no independent witness was examined to support the fact that the complainant had related the alleged occurrence to any person except her relations immediately after the occurrence in order to lend credence to her allegation. 7. So far as the presumption regarding occurrence on the statement of the victims concerned. I am of the opinion that this presumption is rebuttable. If the probability of the evidence of the complainant is taken, no conviction can be based on the same. 8. In this connection the evidence of the complainants is that witnesses who gathered, at the P.O. could not be named by her except Roshan and Soghra who are her daughter and mother, respectively. If the probability of the evidence of the complainant is taken, no conviction can be based on the same. 8. In this connection the evidence of the complainants is that witnesses who gathered, at the P.O. could not be named by her except Roshan and Soghra who are her daughter and mother, respectively. One witness named in her evidence at paragraph 27, namely, Sharif was also not examined. The fact that she did not show or made over the stained -cloth at the P.S. as she had deposed at paragraph 33 would also go to believe her story of rape as alleged by her. Then, there is one significant aspect of the case which also render the alleged occurrence improbable. At Paragraph 8 of her evidence, she has said that her house is brick-built house and it contains toilet. In such a circumstances, it is doubtful whether she had gone out to ease herself outside the house at 8 p.m. She has explained that she went out because villagers normally go out for easing. But the point is whether a female who has toilet in her house would go out in the field to ease herself and so this circumstance is redolent with some genuine doubts. 9. The circumstances as enumerated above, therefore, render it a bit improbable that the complainant was subjected to rape at the alleged time and at the alleged place and in the manner as alleged. Hence, the accused deserves benefit of doubt. 10. In the result, this appeal is allowed the order of conviction and sentence is set aside and the appellant is acquitted. It appears that the appellant is in jail as his prayer for bail was rejected by this Court earlier. Therefore, the appellant is directed to be released forthwith, if not required in any other case.