V. ESWARAIAH, J. ( 1 ) THE appellant filed this criminal appeal against the judgment dated 19-10-1995 made in SC No. 49 of 1992 on the file of the learned 11 Additional Sessions judge-cum-Special Judge for Cases triable under SC and STs (PA) Act, 1989, Krishna division, Vijayawada, in holding the accused-appellant is guilty under Section 376 ipc and sentencing him to undergo rigorous imprisonment for seven years. ( 2 ) THE case of the prosecution is that the victim girl - PW1 and her brother (PW2) belong to Gopavaram village of Musunuru mandal. Dharmayya (PW2) was studying b. L. , at Machilipatnam. PW1 was staying with her brother (PW2) at Machilipatnam as she was preparing for Xth class examination. PW2 went to his native place on some personal work. Taking the advantage of the absence of PW2, the accused entered into the house and committed rape on PW1 at Musula on 16-6- 1991 at about 4-00 p. m. , and while the accused was committing rape, here brother (PW2) entered into the house and on seeing him, he ran away leaving his cut drawer (MO4) at the scene of offence. She narrated the incident to her brother and both of them have reported the matter to the chilakalapudi P. S. and the Head Constable, who was examined as PW9, recorded the statement of PW1, which is marked as ex. Pl. PW 1 in Ext. Pl stated that she had failed in three subjects in Xth class previously and with an intention to write the examination she came to Masula where her brother PW2 was staying at chilakalapudi. Two days prior to the incident, her father wrote a letter asking her brother to go to their native place and thereupon her brother proceeded to their native place and they were having two keys one key was with her brother and the other key was with her. One day prior to the incident she locked the door and went to the house of Veera Raghavaiah - PW4 and she has lost the key and when she informed the same to PW4, then PW4 came to her house and opened the door from rear side and advised her not to break open the lock and to use the rear door till her brother comes. On 16-6-1991 at about 4-00 p. m. , evening she was at her house and was busy with preparation of food for her brother as he was expected on that day, and she was sitting on the mat and preparing food. In the meanwhile, the accused residing in the neighbourhood of the house came to her house and bolted the door and gagged her mouth and forcibly threw her on the mat and removed his underwear and while stating not to shout and after lifting her petticoat put his pennis in her private part and committed rape on her forcibly. While the accused was committing rape on her, her brother was about to enter into the house by opening the lock and on seeing him the accused ran away leaving his underwear at the scene of offence itself. She narrated the incident to her brother - PW2 about the commission of rape by the accused. While she was being raped by the accused, blood came out from her private parts and fell on her petticoat and half saree (voni) and also on the mat. A complaint was given on the same day evening i. e. , about 10-00 p. m. , on 16-6-1991. On the said complaint, FIR (Ex. Pl3) is registered and she was sent to the medical test and the case was investigated. The accused was arrested on 13-7-1991 i. e. , after 27 days and he was also subjected to medical test but there was no opinion with regard to semen taken from the accused. ( 3 ) PW 1 was examined by lady doctor on the same day night with reference to the history of being raped eight hours ago and she found no injuries on the body of the genitalia. On vaginal examination, vagina was admitting two figures without any pain. There was no bleeding. Uterus was of normal size. Hymen was not intact with presence of old tears, it was not tender. She collected 4 vaginal smears, cervical swabs and pubic hair for chemical analysis. After receipt of chemical analysis report, she gave her final opinion that there was no sign of rape. The wound certificate is marked as Ex. P2 and Ex. PS is the report of the Chemical Examination and Ex. P4 is the final opinion of the doctor. No doubt spermatozoa was found on MO1. After receipt of chemical analysis report, she gave her final opinion that there was no sign of rape. The wound certificate is marked as Ex. P2 and Ex. PS is the report of the Chemical Examination and Ex. P4 is the final opinion of the doctor. No doubt spermatozoa was found on MO1. She stated in her cross-examination that the blood detected on MOs. 1 and 2 can be on account of menstruation and there was no fresh tearing of hymen and there were no fresh injuries in any part of vagina. Doctor further stated that tallying of count of sperms found on the clothes MOs 1 and 2 and the count of sperms of the accused was not done, and therefore, she could not say that the spermatozoa found on the clothes mos. 1 and 2 were that of the accused. Though the sperm was sent to the chemical examination, it was stated that it was not suitable for test. ( 4 ) PW1 said to have been raped by the accused, deposed that her brother was expected on that fateful day, while she was sitting on a mat and cooking food for her brother, at that time, the accused entered into the house from rear side door and laid her on mat by closing her mouth with his hand, pulled her langa and committed rape. She also stated that the accused inserted his penis into her vagina, at that time her brother unlocked the door with the key he was having and entered inside the house. By seeing him, she shouted as "annayya". Then the accused ran away. PW1 revealed the entire incident to her brother (PW2 ). PW2 informed the incident to the other locality people. In the cross-examination, she stated that when the accused closed her mouth with one hand, she had attempted to ward off the hand of the accused with which he closed her mouth. She was sitting on the mat and the accused threw her on the same mat and the accused did not remove his hand from her mouth even while he removed his underwear and while the accused committing rape she tried to extricate herself. She kicked and pushed him. She tried to remove his hand from her mouth and even she tried to get up but she could not. She kicked and pushed him. She tried to remove his hand from her mouth and even she tried to get up but she could not. After the accused threw her down and started committing rape, she lost her consciousness and could not do anything. She felt giddiness and that she did not know as to what was happening to her. Getting unconsciousness and giddiness was not stated before the police. She further stated that while he was committing rape on her she felt pain on her vagina and there was bleeding. She also stated that prior to the incident she was not having any sexual intercourse. She was cross- examined by the defence Counsel stating that the accused was working in the godown where PW4 was working and the accused and PW4 belong to two different parities and that PW4 is close to PW1 and 2 and that by using her, PW4 wanted to take revenge on the accused. PW2 stated that when he was entering into the house after unlocking the door, he saw the accused running away from the rear door and he saw pw1 lying on the mat and she got up and started weeping stating that the accused raped her. In the cross-examination, he has stated that immediately after unlocking the door, he saw the accused was running away and he did not observe from the door through which he ran away was bolted from inside or not and whether the accused ran away by opening the bolt. He also stated that neither himself nor PW1 shouted when the accused was there. He admitted the fact that PW1 was conscious when he entered the house after the accused ran away. ( 5 ) AS far as age of the victim is concerned, she is above 16 years and therefore, the question of presumption of committing rape as if the victim is below 16 years does not arise in this case. ( 6 ) IN the instant case, the evidence of PW1 is not supported by any medical evidence. The question as to whether PW1 is a truthful witness or not has to be considered in this case. ( 6 ) IN the instant case, the evidence of PW1 is not supported by any medical evidence. The question as to whether PW1 is a truthful witness or not has to be considered in this case. PW1 stated that she has resisted, struggled and got pain while rape was being committed on her but whereas this evidence is not at all corroborated by the medical evidence as there were no injuries on her private part and her vagina is soft, not paining and the doctor who examined her opined that PW1 was having old traces of intercourse. Had there been any resistance or struggle, certainly she would have sustained some injuries on her person. The cut drawer said to have been left at the scene of offence is not connected to that of the accused. No examination was conducted on the said cut drawer as to whether it belongs to the accused. The material object was not sent for chemical examination and as per the doctor s evidence, the presence of spermatozoa is not tallied with that of the accused and when she stated that she could not state that the sperms found on the mo1 is that of the accused. It was observed by the Forensic Science Laboratory that the spermatozoa sent for examination is not suitable for test. In the absence of any tallying the count of sperm on MOs. 1 and 2 belong to PW1 with that of the accused and in the absence of any evidence connecting it to the accused it is not possible to come to a definite conclusion that a rape has been committed by the accused himself on pw1. As a matter of fact, doctor s opinion is that there was no sign of rape committed on PW1 and the Police Inspector who examined as PW11 also stated that the medical evidence did not reveal that PW1 was victim of rape. Even assuming that there was a sexual intercourse; it appears that it was with the consent of PW1, as no sign of resistance or struggling was revealed as per the evidence available on record. I am, therefore, of the opinion that it is not safe to convict the accused on the aforesaid evidence available on record. ( 7 ) ACCORDINGLY, the judgment of the trial Court is set aside and the appeal is allowed. I am, therefore, of the opinion that it is not safe to convict the accused on the aforesaid evidence available on record. ( 7 ) ACCORDINGLY, the judgment of the trial Court is set aside and the appeal is allowed. The bail bonds if any executed by the accused stand discharged.