JUDGMENT 1. - This appeal has been filed by the accused appellant against the judgment and order dated 18.7.1988 passed by the learned Addl. Sessions Judge No. 2, Hanumangarh camp Suratgarh in Sessions Case No. 35/86 by which he convicted the accused appellant of the charges for the offence under Sections 376 and 450 Indian Penal Code and sentenced in the following manner: Name of accused appellant Convicted under Section Sentence awarded Rameshwarlal 376 Indian Penal Code Seven years RI and to pay fine of Rs. 200/-, in default of payment of fine, to further undergo two months' RI. 450 Indian Penal Code Five years' RI and to pay fine of Rs. 200/-, in default of payment of fine, to further undergo two months RI. Both the substantive sentences were ordered to run concurrently. 2. The facts giving rise to this appeal, in short, are as follows:- On 20.4.1986 at about 5.30 PM, PW.4 Baldev Singh lodged a written report Ex.P/3 with the Police Station Suratgarh stating inter-alia that on that day in the morning, he went to Sangar in Government Dispensary for taking some medicines as his treatment was going on for the last two months and his mother had gone for doing labour work and at his house, his wife Nasibkaur, PW-2 (hereinafter referred to as the prosecutrix) was alone. It was further stated in the report that accused appellant, who used to deal in wine, taking advantage of the fact that his wife prosecutrix PW-2 Nasibkaur was alone in the house, entered his house at about 10.00 AM in the morning. It was further stated in the report by PW-4 Baldev Singh that he was told by one Sewak Singh that accused appellant committed rape with his wife prosecutrix PW-2 Nasibkaur and thereupon, he came to his house and he was told by his wife prosecutrix PW-2 Nasibkaur that accused appellant committed rape with her. The prosecutrix PW-2 Nasibkaur further informed her husband PW-4 Baldev Singh that when she made hue and cry, Vishambhar also came there and seeing him, accused appellant ran away from the scene. He also found some abrasions on finger of her hand and one injury below eye. PW-3 Indra Singh also came there.On this report, police registered the case and chalked out regular F.I.R. Ex.P/4 and started investigation.During investigation, the prosecutrix PW-2 Nasibkaur was got medically examined by PW-1 Dr. He also found some abrasions on finger of her hand and one injury below eye. PW-3 Indra Singh also came there.On this report, police registered the case and chalked out regular F.I.R. Ex.P/4 and started investigation.During investigation, the prosecutrix PW-2 Nasibkaur was got medically examined by PW-1 Dr. Sahiram and her medical examination report is Ex.P/1. The accused appellant was arrested through arrest memo Ex.P/6.After usual investigation, police submitted challan against the accused appellant in the Court of Magistrate, from where the case was committed to the Court of Session.On 15.10.1986, the learned Addl. Sessions Judge No. 2, Hanumangarh framed charges for the offence under Sections 376 and 450 Indian Penal Code against the accused appellant. The charges were read over and explained to the accused appellant. The accused appellant denied the charges and claimed trial.During the course of trial, the prosecution in support of its case examined as many as 8 witnesses and got exhibited some documents. Therefore, statement of accused appellant under Section 313 Criminal Procedure Code was recorded. In defence, one witness DW-1 Anguri wife of accused appellant Rameshwarlal was produced. In the statement recorded under Section 313 Criminal Procedure Code, the accused appellant has admitted the fact that he had old relationship with the prosecutrix PW-2 Nasibkaur and on the relevant day, he entered her house as per her invitation and thereafter, his wife DW-1 Anguri came there and DW-1 Anguri beat prosecutrix PW-2 Nasibkaur.After conclusion of trial, the learned Additional Sessions Judge No. 2, Hanumangarh through his judgment and order dated 18.7.1988 convicted the accused appellant for the offence under Sections 376 and 450 Indian Penal Code and sentenced in the manner as stated above holding inter-alia that prosecution has proved its case beyond all reasonable doubts against the accused appellant for the said offences.Aggrieved from the said judgment and order dated 18.7.1988 passed by the learned Additional Sessions Judge No. 2 Hanumangarh, the present appeal has been filed by the accused appellant. 3. In this appeal, it has been submitted by the learned Counsel for the accused appellant that from the facts and circumstances of the case, if at all anything had happened, that had happened with the consent of the prosecutrix PW-2 Nasibkaur and, therefore, no case for the offence under Sections Sections 376 and 450 Indian Penal Code is made out against the accused appellant. Hence, it was prayed that this appeal be allowed and the impugned judgment and order dated 18.7.1988 passed by the learned Addl. Sessions Judge No. 2, Hanumangarh be set aside and the accused appellant be acquitted of the charges framed against him. 4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Additional Sessions Judge No. 2 Hanumangarh. 5. I have heard the learned Counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case. 6. The medical examination report of the prosecutrix PW-2 Nasibkaur is Ex.P/1 and the same has been proved by PW-1 Dr. Sahiram. From the statement of PW-1 Dr. Sahiram, it appears that on the date of examination i.e. on 21.4.1986, prosecutrix PW-2 Nasibkaur had one bruise on left orbital area and one abrasion on right elbow joint. 7. Since in rape cases the best evidence is of prosecutrix herself, first her statement has to be seen. 8. Before examining the statement of the prosecutrix PW-2 Nasibkaur, something should be said about legal aspect with respect to appreciation of evidence of prosecutrix and the same can be summarised in the following manner: 1. That the main evidence in all such cases is that of victim herself. 2. That corroboration of the testimony of the prosecutrix in rape case is not required as a rule of law. But, corroboration should ordinarily be required in the case of a woman having attained majority and who is habitual to sexual intercourse and is found in a compromising position, as in such cases there is likelihood of her having levelled such an accusation on account of instinct of self-preservation or when the probabilities factor is found to be out of time. 3. That corroboration may be by facts and circumstances. 4. That the injury on the person of the victim, especially her private parts, had corroborative value. 5. That if the evidence of the victim does not suffer from any basic infirmity and the probabilities factor does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. 9. 5. That if the evidence of the victim does not suffer from any basic infirmity and the probabilities factor does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. 9. In State of Punjab v. Gurmit Singh, AIR 1996 SC 1393 , the Hon'ble Supreme Court has held that the testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.Burden of proof 10. In a case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and her mother have falsely implicated the accused. The evidence of prosecution witnesses cannot be accepted merely because an accused person has not been able to say as to why they have come forward to depose against him. However, great the suspicion against the accused and however strong the moral belief and conviction of the Judge, unless the offence of the accused is established beyond reasonable doubt or beyond the possibility of reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring the offence home to the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. 11. Keeping the above legal aspect in mind, the statement of the prosecutrix PW-2 Nasibkaur is being examined. 12. There is an initial presumption of innocence of the accused and the prosecution has to bring the offence home to the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. 11. Keeping the above legal aspect in mind, the statement of the prosecutrix PW-2 Nasibkaur is being examined. 12. The prosecutrix PW-2 Nasibkaur in her statement recorded in Court states that accused appellant entered her house and caught hold of her and put her on the cot and opened Nada of her Salwar and then, he put off his underwear and committed rape with her and on her making hue and cry, PW-3 Indra Singh and Chichitra came there and, thereafter, DW-1 Anguri, wife of the accused appellant, came there and she lifted the accused appellant from her body and, thereafter, accused appellant ran away. In cross-examination, she admits the following facts: 1. That she has four children. 2. That she bited with her teeth on his shoulder. 3. That she tried her best to relieve herself from the clutches of the accused appellant, but she failed. 4. That when she tried to relieve herself from the clutches of the accused appellant, she received injury as she struck against the door. 5. That when accused appellant stretched her Salwar, it was not torn up and when accused appellant entered her house and when she tried to save herself from the clutches of the accused appellant, in that happening, half an hour was wasted. 6. That accused appellant committed rape with her once. 7. That when accused appellant was having sex with her, DW- 1 Anguri wife of the accused appellant came there and DW-1 Anguri lifted the accused appellant from her body and, thereafter, PW-3 Indra Singh came there. 8. That her husband PW-4 Baldev Singh used to remain ill. 13. PW-3 Indra Singh in his statement recorded in Court admits that when he reached on the spot, he saw that DW-1 Anguri, wife of the accused appellant, was abusing prosecutrix PW-2 Nasibkaur and at that time, accused appellant was coming outside from her house after setting his own Nada and DW-1 Anguri was asking her husband accused appellant "is Nasibkaur (PW-2) is more beautiful than her." 14. PW-4 Baldev Singh is the lodger of the report Ex.P/3 and husband of the prosecutrix PW-2 Nasibkaur and he has admitted that he was told by his wife prosecutrix PW-2 Nasibkaur that when she was having sex with the accused appellant, DW-1 Anguri wife of the accused appellant came there and she lifted the accused appellant from her body and took the accused appellant with her. 15. PW-7 Janardhan, who is Dy. SP and IO in that case, has admitted in cross-examination that during investigation he came to the conclusion that DW-1 Anguri was the first lady, who reached on the spot. 16. DW-1 Anguri is the wife of the accused appellant and she has stated that when she reached on the spot, she found her husband accused appellant lying over the prosecutrix PW-2 Nasibkaur and she lifted accused appellant from the body of the prosecutrix PW-2 Nasibkaur and upon this, prosecutrix PW-2 Nasibkaur abused her and on this, she became angry and gave 2-3 slaps to the prosecutrix PW-2 Nasibkaur. This witness has further stated that she put prosecutrix PW-2 Nasibkaur on the ground and at that time, she received injury on her eye. 17. From the above evidence, one thing is very much clear that accused appellant had sex with the prosecutrix PW-2 Nasibkaur. The question is whether in having sex, there was tacit consent on the part of the prosecutrix PW-2 Nasibkaur or not. 18. From the statements of the prosecutrix PW-2 Nasibkaur and DW-1 Anguri, wife of the accused appellant, it is also very much clear that DW-1 Anguri is the first lady, who reached on the spot and when DW-1 Anguri entered the house of the prosecutrix PW-2 Nasibkaur, she found that her husband accused appellant was lying over prosecutrix PW-2 Nasibkaur and she removed and lifted him from the body of the prosecutrix PW-2 Nasibkaur, meaning thereby this sort of happening would go to show that there was tacit consent on the part of the prosecutrix in having sex with him. 19. So far as two injuries which are found on the person of prosecutrix PW-2 Nasibkar are concerned, from the statement of DW-1 Anguri, it also appears that she received these injuries when she was beaten by DW-1 Anguri and not at that time when accused appellant was having sex with her. 19. So far as two injuries which are found on the person of prosecutrix PW-2 Nasibkar are concerned, from the statement of DW-1 Anguri, it also appears that she received these injuries when she was beaten by DW-1 Anguri and not at that time when accused appellant was having sex with her. Therefore, these two injuries would not make the sexual intercourse between the accused appellant and prosecutrix PW-2 Nasibkaur forcible. 20. Thus, looking to the entire evidence on record and that no injury was found on private part of the prosecutrix PW-2 Nasibkaur, it can reasonably be inferred or concluded that prosecutrix PW-2 Nasibkaur was consenting party and no forcible rape was committed on her by the accused appellant and the accused appellant had sex with the prosecutrix PW-2 Nasibkaur with her tacit consent. 21. For the reasons stated above, the findings of the learned Addl. Sessions Judge No. 2 Hanumangarh convicting the accused appellant for the offence under Sections 376 and 450 Indian Penal Code cannot be sustained and the same are liable to be set aside and this appeal deserves to be allowed and the accused appellant is entitled to acquittal.Accordingly, this appeal filed by the accused appellant Rameshwarlal is allowed and the impugned judgment and order dated 18.7.1988 passed by the learned Addl. Sessions Judge No. 2, Hanumangarh are set aside and the accused appellant is acquitted of the charges framed against him. Since he is on bail, he need not surrender and his bail bonds stand cancelled.Appeal allowed. *******