JUDGMENT - MOHITE R.S., J.:---This is an appeal filed by the appellant (hereinafter referred to as the accused) against the judgment and order dated 30-9-1997 passed by the 4th Additional Sessions Judge, Nagpur in Sessions Case No. 120/93. By the impugned judgment, the trial Court has convicted the accused for an offence punishable under section 376 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- in default to suffer further rigorous imprisonment for six months. 2. The relevant facts of the case are as under: (A) The prosecutrix Shobha Bhaurao Ramteke was a working woman and was working in Battery Company at Vardhman Nagar. According to her she know the accused as she met him at Boudha Vihar situated at Seminary Hills. On one such occasion the sister of the accused by name Nalini was alongwith the accused and Nalini made inquiry from Shobha about her standing in life. Nalini told Shobha that her brother, i.e. the accused was a Telephone Engineer and that his Superior Officer was in need of workers and he was willing to pay Rs. 400/- per month alongwith meals and residence. After this first meeting, Nalini again met Shobha after 15 days and told Shobha that there was Paritran Path at the house of accused and asked Shobha to come there. According to the prosecutrix, Nalini furnished address of the accused. (B) On 26-8-1992, at about 7.00 p.m. the prosecutrix Shobha went to the given address. She alighted from the bus at the city bus stop at Raghujinagar. The accused was there alongwith one boy on the bicycle. One lady by name Ramteke also met the prosecutrix at the bus stop. Thereafter the accused, the prosecutrix Shobha and Ramtekebai came to the house of the accused at Raghujinagar. One Boudh Priest by name Bhanteji (P.W. No. 5) was sitting in the house and some people were taking meals. The prosecutrix also took her meals. At about 12 night, prosecutrix Shobha, Ramtekebai, one boy, son of prosecutrix, Bhanteji, Nalini and Nalinis friend slept in the front room. The house of the accused consisted basically of two rooms, i.e. front room and the kitchen. The kitchen was smaller, admeasuring 8 x 10 feet. The prosecutrix also took her meals. At about 12 night, prosecutrix Shobha, Ramtekebai, one boy, son of prosecutrix, Bhanteji, Nalini and Nalinis friend slept in the front room. The house of the accused consisted basically of two rooms, i.e. front room and the kitchen. The kitchen was smaller, admeasuring 8 x 10 feet. According to the prosecutrix, the accused came there and suggested that the ladies should sleep in the kitchen room and hence, prosecutrix Shobha, Ramtekebai and two children went to the kitchen room and slept there. (C) It is the version of Shobha that at about 2.30 to 3.00 a.m. she felt some sensation of pressure on her face, and therefore, she gave a jerk by her hand. After some time she found that the accused was sitting near her legs. The accused is said to have told her “Bai Mazi Chook Zali”. She found that her saree, peticoat and underwear were removed and that she was only wearing blouse. According to her the accused removed her clothes. She stated that the accused committed sexual intercourse with her and satisfied his lust. She stated that she loudly shouted, “Bhanteji Dhava”. On hearing shouts, Bhanteji came there and scolded the accused and asked him to atleast give her employment. Bhanteji then asked Shobha not to leave in the night. (D) It is the version of Shobha that on the next morning at about 9.30 to 10.00 a.m., the accused, his brother and one person by name Raulkar came to the house and rushed towards Bhanteji to beat him saying that, why he was taking side of the lady. It is her case that the brother of the accused and Raulkar said that the accused had only committed rape, but now they will kill the prosecutrix by knife. Raulkar is said to have taken out a knife and removed the saree of the prosecutrix and broke the waist band of the peticoat. At that stage Bhante suppose to have rushed towards Raulkar and snatched the knife from him. (E) Subsequently the prosecutrix went to the office of Commissioner of Police at Civil Lines alongwith Bhanteji in an Autorickshaw and narrated the incident to the Commissioner of Police. Subsequently, she lodged the report to Sakkardara Police Station and investigation commenced. (F) On 27-8-1992, the prosecutrix was examined by Dr. Bhattacharya, who has not been examined in this case. (E) Subsequently the prosecutrix went to the office of Commissioner of Police at Civil Lines alongwith Bhanteji in an Autorickshaw and narrated the incident to the Commissioner of Police. Subsequently, she lodged the report to Sakkardara Police Station and investigation commenced. (F) On 27-8-1992, the prosecutrix was examined by Dr. Bhattacharya, who has not been examined in this case. The Medical Certificate is however exhibited through the evidence of Lady Police Constable who had taken her to Medical College, Nagpur for medical checkup. A perusal of the certificate indicates that the vulva was found normal. There was no injury on the body and the doctor opined that no opinion could be given as to whether the prosecutrix had been raped. In this certificate doctor also stated that the patient was not willing to be admitted for observation. (G) On 28-8-1992, the accused was examined by the doctor and Medical Certificate indicates that smegma was found absent. (H) The clothes of the accused and the prosecutrix were sent to the chemical analyser and the chemical analysers report was received. From the C.A. Report it can be seen that no semen or spermatozoa were detected in the vaginal swab taken from the prosecutrix. However, semen of O group was found on the bedsheet from the room as also from a torn peticoat seized from the prosecutrix. Similarly, the torn underwear of the prosecutrix was found to be stained with blood in the middle and appeared to be washed. It was found that the blood of the prosecutrix Shobha as well as of the accused were of O group. It was also found that the semen of the accused was of O group. After conclusion of investigation, the Investigating Officer filed the charge-sheet. 3. At the trial, the prosecution examined as many as nine witnesses. The accused has also examined two defence witnesses. One of the defence witness Smt. Ranjana said to be the friend of Nalini, who was present in the house on the date of the incident and was sleeping in the house on that night. The other witness examined is Dr. Wase who is D.W. 2, who has issued certificate of blood group of the accused was A Rh Positive. One of the defence witness Smt. Ranjana said to be the friend of Nalini, who was present in the house on the date of the incident and was sleeping in the house on that night. The other witness examined is Dr. Wase who is D.W. 2, who has issued certificate of blood group of the accused was A Rh Positive. Based upon the testimony of witnesses and the documents produced, the trial Court passed the impugned judgment and order convicted the accused under section 376 of the Indian Penal Code and sentenced him as aforesaid. 4. I have perused the evidence afresh. The prosecution had principally relied upon the evidence of the prosecutrix P.W. 1 Shobha whose evidence was sought to be corroborated through the evidence of P.W. 5 Bhante. The trial Court has placed no reliance on the evidence of P.W. 5 Bhante stating that there were several omissions and contradictions in his evidence. While arriving at the finding of guilt, the trial Court has accepted the evidence of P.W. 1 Shobha by stating that the contradictions and omissions brought in her evidence were not material in nature. Reliance has also been placed by the trial Court on the Medical Certificate pertaining to the examination of accused and on the opinion of finding no smegma. The trial Court also placed reliance on the chemical analysers report which indicated a factual situation as reproduced hereinabove. 5. On reading of the evidence of P.W. 1, I find that it would be dangerous to accept the story that actual intercourse has been committed. Apart from the fact, as there is no medical evidence to support the version of the prosecutrix, her version itself appears to be improbable. She has contended that she was asleep and she felt pressure on her face and woke up and she found that the accused was sitting near her legs and tendering his apology. She claims that her saree, peticoat and underwear had already been removed by the accused and that the accused committed intercourse on her and satisfied his lust. To my mind, this story given by the prosecutrix appears to be an exaggeration. It is very difficult to accept that the accused could have removed saree, peticoat and underwear of a sleeping woman and would have committed the act of rape on her while she was asleep. To my mind, this story given by the prosecutrix appears to be an exaggeration. It is very difficult to accept that the accused could have removed saree, peticoat and underwear of a sleeping woman and would have committed the act of rape on her while she was asleep. In this connection, the observation of Modi in Modis Medical Jurisprudence and Toxicology 22nd Edition page No. 510 would have relevance. Modi has observed as under: “It is also possible, though highly improbable, for a woman to allow coitus during profound sleep without her being conscious of it, if the genital parts are large and accustomed to the intromission of the penis.” The improbability of committing the said act is further enhanced by a fact which has not been referred to by the trial Court and that is said to have been committed in a small room admeasuring 8 x 10 feet. Admittedly another grown up lady by name Ramtekebai as well as two children were sleeping alongwith the prosecutrix Shobha. The spot panchanama indicates that the said small room of 8 x 10 feet was filled with furniture, including a dining table. In short, four persons must have had to huddle together. I find it very difficult to believe that the act of rape could have been completed as alleged by the prosecutrix while she was in sleep. 6. The evidence of Shobha about her being threatened with a knife by the accused, his brother and one Raulkar also seems to be an exaggeration. Her version that Raulkar threatened with knife, tore her saree and broke peticoats band and threatened her with knife is an improvement. There is no mention of any knife being carried by Raulkar in her F.I.R. several omissions and contradictions have been brought on record while recording the evidence of prosecutrix. I find that in several places the version given by her seems to be exaggerated. 7. Having stated this, I am not inclined to totally disbelieve the prosecutrix Shobha. It cannot be lost sight of the fact that semen stains were found on the bedsheet as also on her peticoat. It appears to me that in a heat of moment the accused must have attempted to have committed rape. This would explain the finding of semen stains on the bedsheet. It cannot be lost sight of the fact that semen stains were found on the bedsheet as also on her peticoat. It appears to me that in a heat of moment the accused must have attempted to have committed rape. This would explain the finding of semen stains on the bedsheet. Insofar as the blood on the underwear of the prosecutrix is concerned, that circumstance does not impress me much because admittedly the blood group of the prosecutrix Shobha is also O and the blood spot was found to be a washed blood spot indicating that it could have been old stain. In this connection it cannot be lost sight that there was no injury found on the private part of Shobha or on any other part of her body. 8. Taking into account the overall evidence, I am inclined to partly allow this appeal by setting aside the conviction under section 376 of the Indian Penal Code and convict the accused for the offence under section 376 r/w section 511 of the Indian Penal Code. As regards the sentence, there are few mitigating factors. The accused is 53 years of age. The record indicates that the accused has two sons and one daughter, he has been facing prosecution since 1992, his children have grown up and the accused has been in custody only for a period of 10 days. The record indicates that even according to Shobha he was tendering an apology for the act admitted to have been committed by him. There are no antecedents against the accused. The accused has lost his Government service. 9. In view of these circumstances, I feel that the ends of justice will be met if the accused is sentenced to undergo rigorous imprisonment for the period of one year and to pay a fine of Rs. 1,000/- (rupees one thousand only). If there is default in payment of fine, there shall be further rigorous imprisonment for the period of six months. The impugned judgment and order passed by the trial Court is modified accordingly and the appeal is partly allowed in the aforesaid terms. 10. On an application made by the Counsel for the appellant stating that the children of the appellant are likely to appear for the examination in February, the appellant is given 60 (sixty) days time to surrender his bail. Appeal partly allowed. -----