Judgment SUNIL KUMAR GARG, J. ( 1 ) THIS appeal has been preferred by the accused appellant against the judgment and order dated 10/11/1987 passed by the learned Addi. Sessions Judge, Bhilwara in rajasthan High Court Page 2 of 6 sessions Case No. 42/1986 by which the learned Additional Sessions Judge convicted and sentenced accused appellant as under: Section Sentence awarded 366 I. P. C. 5 years R. I. and a fine of Rs. 200. 00 in default to further undergo 1 monthss S. I. 376 I. P. C. 10 years R. I. and a fine of Rs. 300. 00 in default to further undergo 1 monthss S. I. Both the sentences were ordered to run concurrently. ( 2 ) IT arises in the following circumstances (i) P. W. 1 Shambhu Gin lodged a written report (Ex. P/13) with the Police Station City Kotwali, Bhilwara on 12/4/1986 stating inter alia that on that day, he came to Bhilwara and at about 2 p. m. when he was in the shop near Gd Pyau in Bazar No. 2, then a person of wheatish colour wearing white shirt and Dhoti came there and met him, upon this P. W. 1 Shambhu Gin told him that he had to go to Haled, thereupon that person told him that a tractor was going towards Haled and, therefore, he could also come with him. P. W. 1 Shambhu Gin has further stated in his report Ex. P/13 that at that time, his daughter Chandi, P. W. 2 (hereinafter referred to as the prosecutrix) was also with him. It was further stated by P. W. 1 Shambhu Gin in his report (Ex. P/13) that thereafter he went with that person for checking the tractor. It was further stated by P. W. 1 Shambhu Gin in his report (Ex. P/13) that after sometime, that person went back on cycle leaving P. W. 1 Shambhu Gin there and thereafter when P. W. 1 Shambhu Gin came back to the shop situated near Gd Pyau, he did not find his daughter P. W. 2 Chandi there. It was further stated by P. W. 1 Shambhu Gin in his report (Ex. P/13) that when P. W. 1 Shambhu Gin made enqui-ries he was told by other person that Chhoga (accused appellant) had abducted his daughter P. W. 2 Chandi from there. (ii) On the basis of this report (Ex. It was further stated by P. W. 1 Shambhu Gin in his report (Ex. P/13) that when P. W. 1 Shambhu Gin made enqui-ries he was told by other person that Chhoga (accused appellant) had abducted his daughter P. W. 2 Chandi from there. (ii) On the basis of this report (Ex. P. 13), the police chalked out regular FIR and started investigation. (iii) That P. W. 2 Chandi was got re-covered on 14-4-1986 through Fard Ex. P/6 and thereafter she was got medically examined for the purpose of ascertaining whether rape was committed with her or not and her medical examination report is Ex. P/9. She was also got medically examined for the purpose of ascertaining her age and her medical examination report regarding her age is Ex. P/12. (iv) That during investigation, accused appellant was arre-sted through Fard (Ex. P/7) on 8-5- 1986. (v) That after investigation, the police submitted challan against accused appellant for offence under Sections 366 and 376 I. P. C. ( 3 ) THAT on 14-8-1986, charges for offence under Sections 366 and 376 I. P. C. were framed against accused appellant by the learned Addi. Sessions Judge who pleaded not guilty and claimed trial. ( 4 ) AT the trial, prosecution exa-mined as many as 11 witnesses in support of its case. Rajasthan High Court Page 3 of 6 accused appellant in his statement under Section 313 Cr. P. C. denied to have committed any offence and one witness was examined by the accused appellant in defence. ( 5 ) AT the conclusion of the trial, the learned Trial Judge through his judgment and order dtd. 10-11-1987 convicted and sentenced accused appellant as stated above inter alia holding (i) That the age of the prosecutrix P. W. 2 Chandi was above 18 years on the date of occurre n ce. (ii) That accused appellant abdu-cted P. W. 2 Chandi with an intention to have illicit relation with her and there-after committed rape with her. ( 6 ) AGGRIEVED from the judgment and order dtd. 10-1-1987 passed by the learned Addi. Sessions Judge, Bhilwara, this appeal has been filed by the accused appellant. ( 7 ) IN this appeal, the main submission of the learned counsel appearing for accused appellant is that the learned Addi. ( 6 ) AGGRIEVED from the judgment and order dtd. 10-1-1987 passed by the learned Addi. Sessions Judge, Bhilwara, this appeal has been filed by the accused appellant. ( 7 ) IN this appeal, the main submission of the learned counsel appearing for accused appellant is that the learned Addi. Sessions Judge has erred in placing reliance on the statement of P. W. 2 Chandi as at the time of alleged incident, she was matured lady of above 18 years and was married one and she was habitual to intercourse and, therefore, what was done by the accused appellant with her, that was done with her consent and thus, no case of abduction or forcible rape was made out against the accused appellant and the findings of the learned Addi. Sessions Judge convicting the accused appellant for offence under Sections 366 and 376 I. P. C. are liable to be set aside and accused appellant is entitled to acquittal. ( 8 ) ON the other hand, the learned Public Prosecutor has supported the impugned judgment and order dtd. 10/11/1987 passed by the learned Addi. Sessions Judge, Bhilwara and submitted that no interference is called for in the impugned judgment and order. ( 9 ) I have heard both and perused the record of the case. ( 10 ) BEFORE proceeding further, first medical evidence has to be seen. ( 11 ) SO far as medical evidence is concerned, the prosecution has produced P. W. 6 Dr. Maya Joshi who stated that on 14-4-1986 she in the capacity as Sr. Specialist in M. G. Hospital, Bhilwara, examined P. W. 2 Chandi and found following facts (i) Scratch marks on left side of chest. (ii) No other injury was found. (iii) No injury on vulva or vagina was found. (iv) Hymen was found torn. (v) Her vagina admitted two fingers easily. (vi) She was habitual to sexual intercourse. P. W. 6 Dr. Maya Joshi has proved medical examination report (Ex. P/9 ). ( 12 ) IN cross-examination P. W. 6 Dr. Maya Joshi has admitted that she could not tell about rajasthan High Court Page 4 of 6 duration of scratches. P. W. 6 Dr. Maya Joshi has further admitted that the Medical Jurist would say about the duration of scratches. ( 13 ) P. W. 7 Dr. P/9 ). ( 12 ) IN cross-examination P. W. 6 Dr. Maya Joshi has admitted that she could not tell about rajasthan High Court Page 4 of 6 duration of scratches. P. W. 6 Dr. Maya Joshi has further admitted that the Medical Jurist would say about the duration of scratches. ( 13 ) P. W. 7 Dr. Sunil Upmanyu examined the prosecutrix (P. W. 2 Chandi) for ascertaining her age and he has proved the medical examination report of P. W. 2 Chandi regarding age and the same is Ex. P/12 by which the age of prosecutrix (P. W. 2 Chandi) was assessed between 17 to 18 years. P. W. 7 Dr. Sunil Upmanyu has also stated that he is not in a position to say about the duration of scratches. ( 14 ) THUS, from the medical evi-dence, it is very much clear that P. W. 2 (Chandi) did not receive any sort of injury on any part of her body including her private parts and she was married lady and habitual to intercourse. ( 15 ) NOW, the statement of prose-cutrix P. W. 2 Chandi has to be examined in analytic manner. ( 16 ) IN the case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and 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 has 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. ( 17 ) APART from this, something should be said about the medical examination of the victim. 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. ( 17 ) APART from this, something should be said about the medical examination of the victim. If the victim is unwilling to yield to sexual inter-course, she is expected to receive some injuries on her person. Absence of injury on her person generally gives rise to an inference that she was consenting party to coitus. Absence of injuries on the prosecutrix or the accused shows that the prosecutrix did not resist. But absence of injuries is not by itself sufficient to hold that the prosecutrix was consenting party. ( 18 ) THUS, the point for considera-tion is whether the statement of P. W. 2 Chandi in the present case on the point that accused appellant first abducted P. W. 2 Chandi and thereafter committed rape with her is reliable one or not and whether the findings of learned Addi. Sessions Judge are liable to be confirmed one or not. ( 19 ) P. W. 2 Chandi in her examination in chief has stated following facts: (i) that the accused appellant first took her towards the Railway Track on the pretext that her father P. W. 1 Sha-mbhugiri was calling her. (ii) Thereafter they boarded a truck and went to Chittor. (iii) From Chittor they boarded a bus and went to Nimbaheda. (iv) From Nimbaheda, accused appellant took her to Avri Mata in a bus and in the night, accused appellant took her to the jungle where he commi-tted rape with her. Rajasthan High Court Page 5 of 6 (v) In the morning, they boarded a bus and went to Nimbaheda. (vi) From Nimbaheda, they boarded a train and went to Chittor-garh. (vii) Thereafter they boarded a truck and reached Bhilwara. Thereafter the accused appellant took the prosecutrix (P. W. 2 Chandi) to the jungle and committed rape with her. (viii) When near village Haled Dilip Singh and Narayan Singh met prosecutrix P. W. 2 Chandi, she narrated the whole story to them. ( 20 ) IN the cross-examination, on the prosecutrix (P. W. 2 Chandi) has admitted following facts (i) She was married 4 to 5 years back. (viii) When near village Haled Dilip Singh and Narayan Singh met prosecutrix P. W. 2 Chandi, she narrated the whole story to them. ( 20 ) IN the cross-examination, on the prosecutrix (P. W. 2 Chandi) has admitted following facts (i) She was married 4 to 5 years back. (ii) Accused appellant threatened her with knife, but she did not tell this fact to anybody. (iii) It is correct to say that in the bus in which prosecutrix (P. W. 2 Chandi) and accused appellant were travelling, many people were also sitting, however, she did not make any complaint to anybody about the conduct of the accused appellant. ( 21 ) IN my considered opinion, looking to the facts and circumstances of the case just mentioned above, the statement of prosecutrix P. W. 2. Chandi should not be believed on the point that the accused appellant had sexual intercourse with her against her will and on the point that she was abducted by playing fraud by accused appellant because of the following reasons: (i) That P. W. 2 Chandi remained with the company of accused appellant not at one place but at so many places as they first went to Chittor in a truck, from Chittor to Nimbaheda in a bus and thereafter from Nimbaheda to Avri Mata in a bus and during this process she did not make any complaint to anybody. (ii) The absence of injuries on the person of prosecutrix P. W. 2 Chandi is yet another factor to negative the allegation of rape and to show that the accused appellant had sex with her with her consent. (iii) Keeping in view the medical evidence which shows that the prosecutrix P. W. 2 Chandi was habitual to sexual intercourse, in order to accept her state-ment that she was compelled, threatened or otherwise indu-ced to go with the appellant, there should be corroboration of some material particulars from some independent source and her bare statement cannot be considered suffi-cient to sustain the appellants conviction. (iv) The medical evidence clearly discloses that the prosecutrix P. W. 2 Chandi does not appear to have put up any resistance to the alleged onslaught committed on her by the appellant. From this, the only irresistible inference can be that the prosecutrix was consenting party which would be reinforced by other circumstances. (iv) The medical evidence clearly discloses that the prosecutrix P. W. 2 Chandi does not appear to have put up any resistance to the alleged onslaught committed on her by the appellant. From this, the only irresistible inference can be that the prosecutrix was consenting party which would be reinforced by other circumstances. The whole incident was narrated by P. W. 2 Chandi to Dilip Singh and Narayan Singh just after the occurrence, rajasthan High Court Page 6 of 6 but these persons have not been produced by the prose-cution. Had they would have been produced, they would have corroborated the statement of P. W. 2 chandi to some extent and in absence of that, statement of P. W. 2 Chandi has also become doubtful about the alleged occurrence. ( 22 ) THUS, from the above discu-ssion, the statement of prosecutrix P. W. 2 Chandi does not appear to be reliable one and trustworthy and does not inspire confidence and the same is not supported by any independent evidence and thus, no reliance can be placed on it. Looking to the entire facts and circumstances of the case, the only irresistible conclusion that can be drawn is that the prosecutrix P. W. 2 Chandi was a consenting party and all the activities right from the beginning were going on with her tacit consent. ( 23 ) FOR the reasons mentioned above, it is held that the prosecution has not been able to prove its case against the accused appellant for the offence under Sections 366 and 376 I. P. C. and thus, the findings of the learned Addi. Sessions Judge, Bhilwara convicting accused appellant for the said offences are liable to be set aside and this appeal deserves to be allowed and the judgment and order dtd. 10/11/1987 passed by the learned Addi. Sessions Judge, Bhilwara are liable to be set aside and the accused appellant is entitled to acquittal. Accordingly, this appeal filed by accused appellant Chhoga is allowed and the judgment and order dated 10/11/1987 passed by the learned Addi. Sessions Judge, Bhilwara are set aside and the accused appellant is acquitted of the charges under Sections 366 and 376 I. P. C. Since accused appellant is on bail, he need not surrender. His bail bonds are cancelled. Appeal allowed. .