JUDGMENT 1. - This criminal appeal is directed against the judgment and order dated 1.8.2003 passed by the Additional Sessions Judge (Fast Track), Nagaur (for short 'the trial Court' hereinafter) in Sessions Case No. 49/03 (22/03), whereby the trial Court convicted accused-appellant-Kishna Ram for the offence under section 376/511 Indian Penal Code and sentenced him to undergo 7 years rigorous imprisonment and a fine of Rs. 5,000/- and in default of payment of fine further to undergo 6 months' imprisonment. Aggrieved by the impugned judgment and order of the trial Court, the accused-appellant has filed the instant appeal. 2. Briefly stated, the facts of the case to the extent they are relevant and necessary for the decision of this appeal, are that PW-2-Champa Devi lodged an FIR (Ex.P/2) with Police Station, Surpalia, District Nagaur, on 1.2.2003 at 3.00/4.00 p.m. to the effect that her grand-daughter was playing in the Court-yard. Appellant-Kishna Ram took her to his house by saying that he will provide milk to her. After taking the girl to his house, the appellant made an attempt to commit rape on her. On hearing her cries, her daughter-in-law PW-3 Mangi Devi, who was taking water from the water-tank, went to appellant's house where she found her grand-daughter Saroj, aged about 7 years, lying on a cot. On seeing PW-3 Mangi Devi, the appellant ran away. Saroj, the prosecutrix, was brought to home and it was noticed that there was swelling and bruises on her private parts. She waited for her elder son Nema Ram to come but he did not turn-up and as such she reported the matter. On the basis of the report, Chalk FIR (Ex.P/3) was registered and the investigation ensued. After investigation, the police filed challan against the appellant for the offences as noticed above. 3. The prosecution examined as many as 13 witnesses and produced documents Ex.P/1 to Ex.P/9. The appellant made statement under section 313 Cr.P.C., and also appeared as defence witness (DW-1) under section 315 Criminal Procedure Code Appellant also produced three other witnesses in defence and exhibited the documents Ex.D/1 to Ex.D/6. The trial Court, vide impugned judgment and order, held the appellant guilty for the offence of attempt to commit rape under section 376/511 Indian Penal Code and accordingly, he was convicted and sentenced as noticed above. 4. The trial Court, vide impugned judgment and order, held the appellant guilty for the offence of attempt to commit rape under section 376/511 Indian Penal Code and accordingly, he was convicted and sentenced as noticed above. 4. I have heard learned counsel for the appellant, the learned Public Prosecutor and the learned counsel representing the complainant, perused the impugned judgment and order of the trial Court and also scanned, evaluated and scrutinised the evidence on record. 5. It was contended by the learned counsel for the appellant that the appellant is an old and infirm person, aged about 65 years, and on being medically examined vide Ex.P/5, the Medical Jurist found him "not capable for sexual intercourse easily". He further contended that PW-1 Puma Ram is having visiting terms with the complainant and he used to come to her house even at odd hours, to which the appellant and other neighbours objected. It was PW-1 Puma Ram, who persuaded the complainant to lodge a false report so that the appellant could be lodged in jail and making the way easy for Puma Ram to have his frequent visits to the complainant. He has invited my attention to the statement of PW-13 Lichhu Dan Charan, the author of the FIR, wherein he has clearly stated that the FIR was written as stated by PW-1 Puma Ram and not by complainant PW-2 Champa Devi. It was further contended that there is no eye-witness to the occurrence. Even from the version given in the FIR, PW-3 the mother of the prosecutrix had not seen the appellant attempting to commit rape. It was further contended that the appellant advanced a sum of Rs. 25,000/- to the complainant and her husband Dudha Ram for purchasing a camel-cart and with a view not to return the amount despite demand, the false case has been lodged against the appellant. It was further contended that the defence version is fully supported by the statement of various defence witnesses and the document Ex.D/6, wherein the complainant's son Nema Ram has stated that her mother has lodged a false report at the instance of PW-1 Puma Ram against the appellant on account of enmity between the parties and actually no such occurrence took place as stated by the prosecution. Nema Ram has further stated that the appellant used to object about the frequent visits of PW-1 Puma Ram to their house. Lastly, it has been contended by the learned counsel for the appellant that the prosecutrix was neither cited as prosecution witness in the calendar of witnesses filed alongwith challan by the police, nor her statement was recorded under section 161 Cr.P.C., nor she has been examined in the Court and there is no corroboration of complainant's case by the medical evidence. 6. Learned Public Prosecutor and the learned counsel for the complainant, while supporting the impugned judgment and order, have contended that PW-3 Mangi Devi, the mother of the prosecutrix, is an eye-witness to the occurrence and there is no reason to disbelieve her statement. 7. The occurrence allegedly took place on 30.1.2003 at about 3.00/4.00 p.m. and the police station is situated at a distance of one furlong from the alleged place of occurrence. The report of the occurrence has been lodged after two days and the explanation for delay, as mentioned in the report, is that the complainant waited the arrival of her son Nema Ram. From the evidence, to appears that Nema Ram is not having good term with his mother PW-2 Smt. Champa Devi complainant and he is residing separately. In these circumstances, whether the explanation furnished by the complainant for lodging delayed report is sufficient or not, is a pertinent question to be examined. 8. PW-13 Lichhu Dan Charan, the scriber, of the FIR, has stated that PW-1- Puma Ram came to him and wanted him to write a report against the appellant but he refused to write the report. Thereafter, one Lichhu Dan (other than this witness) and Champa Devi came there. He scribed the report Ex.P/2 on the saying of PW-1 Puma Ram. It was PW-1 Puma Ram who dictated the report. He has categorically stated that the report was not scribed as per the saying of Champa Devi. He admitted that there is enmity between the appellant and Dudha Ram - the husband of the complainant. He further stated that the enmity is on many counts. There is also enmity between the appellant and PW-1 Puma Ram. He categorically stated that complainant-Champa Devi did not tell anything regarding the occurrence. He scribed the report Ex.P/2 only on the saying of PW-1 Puma Ram. 9. He further stated that the enmity is on many counts. There is also enmity between the appellant and PW-1 Puma Ram. He categorically stated that complainant-Champa Devi did not tell anything regarding the occurrence. He scribed the report Ex.P/2 only on the saying of PW-1 Puma Ram. 9. Thus, the delay in lodging the FIR Ex.P/2 is not on account of non-arrival of complainant's son Nema Ram but the crime report has been lodged at the instance of PW-1 Puma Ram, who is on inimical terms with the appellant. The police station is situated at a distance of just one furlong from the place of alleged occurrence and there were various neighbours, more particularly the close relatives of the complainant, present there. Had there been the. occurrence as stated by the complainant, then the natural conduct of the complainant would have been to lodge the report promptly without any aid or assistance of PW-1 Puma Ram. 10. PW-1 Puma Ram has stated that PW-2 Champa Devi came to his Dhani (house) in order to call him and asked him to accompany her and on arrival at complainant's house, he was informed that the appellant committed rape on the prosecutrix. On seeing the prosecutrix, he found that there was swelling on her private parts. Thereafter certain person; came to the house of the complainant and they suggested to wait till arrival of complainant's elder son Nema Ram. On being asked, the prosecutrix stated that she was served with tea and sugar by the appellant and thereafter the appellant removed her under-garments, fell her on the cot and sat over her. He was confronted with his previous statement Ex.D/1, wherein he stated that on 1.2.2003, he came to village Surpalia and there he was informed by Champa Devi regarding the occurrence. In his previous statement Ex.D/1, he stated that he asked Champa Devi why she had not lodged the case. He admitted that he has not stated the police that the appellant gave tea and sugar to the prosecutrix; removed her under-garments; put her on the cot and thereafter sat over her. He failed to give any explanation as to why these facts have not been stated to the police in his statement Ex.D/1. He admitted that the elder son of the complainant, viz. Nema Ram, has been residing separately. He failed to give any explanation as to why these facts have not been stated to the police in his statement Ex.D/1. He admitted that the elder son of the complainant, viz. Nema Ram, has been residing separately. He admitted that- there are number of neighbours having their houses in close surrounding, as also there is a public tape where, in the after-noon, the villagers used to come for fetching water and had any cry been raised by the prosecutrix, it could be easily heard by various immediate neighbours. A suggestion was put to the witness that the appellant had been objecting his frequent visits to complainant-Champa Devi, to which the witness denied. He also denied that in a case registered against him by one Gopal Ram Meghwal, appellant stood as a witness in favour of Gopal Ram Meghwal and against him. 11. PW-2 Champa Devi, the complainant and grand-mother of the prosecutrix, stated that the appellant came to their house for taking milk and while going after taking the milk, he took the prosecutrix with him to his house on the pretext of giving her tea. PW-3 Mangi Dev, the mother of the prosecutrix, was fetching water from the water-tank situated adjacent to the wall of their house and on hearing the cries of the prosecutrix, she went to appellant's house and found the prosecutrix lying on the cot without under-garments and the appellant lying over her for committing mal-act ("Khota-Kaam"). Thereafter, 5 to 10 ladies gathered there. Next day, she went to the house of PW- 1 Puma Ram, brought him to her home and waited for arrival of her elder son Nema Ram. Next day, at about 5.00 p.m., she lodged the report Ex.P/2. She stated that she got the report scribed from PW-13 Lichhu Dan Charan at his residence. At the time of scribing the report, no-body was present there. She reported the matter after three days of the occurrence. The houses of accused and the complainant are adjacent and a person in the house of the appellant can be seen from the house of the complainant. She admitted that her son Nema Ram has been residing separately for last 5 to 10 years. She called PW-1 Puma Ram after two days of the occurrence. She stated that before informing PW-1 Puma Ram, she had not narrated the occurrence to anybody. She admitted that her son Nema Ram has been residing separately for last 5 to 10 years. She called PW-1 Puma Ram after two days of the occurrence. She stated that before informing PW-1 Puma Ram, she had not narrated the occurrence to anybody. She also admitted that when she called Puma Ram from his Dhani (house), she did not disclose the occurrence; however, after arrival at her house, she disclosed the occurrence to him. On the way also, she did not disclose the occurrence to PW-1 Puma Ram. She denied having borrowed Rs. 25,000/- from the appellant for purchasing a camel-cart. She is not the witness to the alleged incident. 12. PW-3 Mangi Devi, the mother of the prosecutrix, stated that she was fetching water from the tank and heart the cries, on which she went to the house of the appellant. The prosecutrix was lying on the cot and the appellant was lying over her with open knot of his Dhoti. She abused the appellant and thereafter he ran away. She brought the prosecutrix to her house and when her mother-in-law came, she disclosed the occurrence to her. There were injuries suffered by the prosecutrix on her private part, including removal of skin and swelling. Next day, the complainant brought PW-1 Puma Ram. They disclosed the occurrence to Ram Niwas, Kana Ram, Lichhu Dan Charan, Dhanna Ram Manda and Mehra Ram Khod. Third day, her mother-in-law, the complainant, got the report scribed by PW-13 Lichhu Dan Charan and reported the matter to the police. She stated that after the occurrence, many persons, including same ladies, came to her house. She admitted that at the time of the occurrence, some olderly and aged persons were also sitting there and they also came to the place of the occurrence. In her statement recorded under section 161 Cr.P.C., the fact that the appellant was lying over the prosecutrix does not find mention. She stated that there were injuries on the private parts of the prosecutrix. As per this witness, her mother-in-law got the report scribed on the third day. The alleged occurrence took place at about 3.00/4.00 p.m. on 1.2.2003; next day i.e., 2.2.2003, PW-1 Purna Ram was called and he arrived on third day i.e. on 3.2.2003 and lodged the report, whereas Ex.P/2 is dated 2.2.2003, meaning thereby that no occurrence took place on 1.2.2003. 13. The alleged occurrence took place at about 3.00/4.00 p.m. on 1.2.2003; next day i.e., 2.2.2003, PW-1 Purna Ram was called and he arrived on third day i.e. on 3.2.2003 and lodged the report, whereas Ex.P/2 is dated 2.2.2003, meaning thereby that no occurrence took place on 1.2.2003. 13. PW-4 Dhanna Ram, PW-5 Ram Niwas, PW-6 Amana Ram and PW-11 Lichhu Dan were working on the relevant date of the occurrence at the water-pond, where the complainant went and asked them to come to the village. On this, they went to the house of the complainant and the complainant disclosed that the appellant has committed rape on her grand-daughter. When they went to the house of the complainant, the appellant was not there. They noticed that the prosecutrix was having swelling on her private parts. They asked the complainant to lodge the report. PW-4 Dhanna Ram has categorically stated that before he, alongwith Amana Ram and Ram Niwas, reached the house of the complainant, the police had already reached there. It was suggested to PW-4 Dhanna Ram and PW-5 Ram Niwas that PW-1 Purna Ram's coming to the house of complainant-Champa Devi had been objected by the appellant. 14. PW-7 Dr. Madan Lal, the Medical Jurist, medically examined the prosecutrix on 2.2.2003 vide Ex.P/4 but did not notice any injury on her pubic area and there was no complaint about any pain or discharge in the genital organ. In his opinion, there was no any sign or symptom of rape noticed after external examination. He also medically examined the appellant, vide Ex.P/5, and noticed that there is no reflection of penis and in his opinion, the person examined (the appellant) is not capable to perform sexual intercourse easily. He categorically stated that there was absolutely no injury around the penis parts of the appellant. There was no sign of any attempt to commit rape. He further stated that generally if any injury is caused, it does not disappear for 3 to 4 days. 15. PW-8 Teja Ram was the Malkhana Incharge, who sent the incriminating sealed articles for FSL examination through Police Constable. PW-9 Pala Ram Swami is the investigating officer, who completed the investigation and filed challan against the appellant. 16. The appellant, in his statement under section 313 Cr.P.C., stated that due to enmity, a false case has been lodged against him. PW-8 Teja Ram was the Malkhana Incharge, who sent the incriminating sealed articles for FSL examination through Police Constable. PW-9 Pala Ram Swami is the investigating officer, who completed the investigation and filed challan against the appellant. 16. The appellant, in his statement under section 313 Cr.P.C., stated that due to enmity, a false case has been lodged against him. There is also dispute between him and the complainant regarding property and money transaction. He is innocent. He got himself examined as DW-1 and stated that there is dispute between him and Dudha Ram and his wife complainant-Champa Devi, who borrowed a sum of Rs. 25,000/- from him three years before for purchase of a camel-cart. The said transaction was recorded in the Book of Accounts (Ex.D/5), which was scribed by Gopal Ram Kumhar and there were two attesting witnesses thereto, viz., Bhanwar Lal and Poora Ram. The complainant and her husband Dudha Ram affixed their thumb impressions on Ex.D/5. They were to return the loan amount alongwith interest @ 2% per month. He had been raising demands for return of the loan amount but despite several demands the same has not been re-paid and subsequently they flately refused the repayment. He has denied the allegation of having attempted to commit rape on the prosecutrix. He further stated that there is dispute between the parties regarding an agricultural land also. He has further stated that there is also enmity between him and PW-1 Purna Ram. 17. DW-2 Bhanwar Lal has stated that the appellant advanced a sum of Rs. 25,000/- to Dudha Ram, who, in turn, did not return the same despite several demands and, therefore, a false case has been registered against the appellant. He also stated that there is also enmity between the appellant and PW-1 Puma Ram. He has also stated that PW-1 Puma Ram is on visiting terms with complainant-Champa Devi, which had been objected by the appellant and in one case, the appellant stood witnesses against PW-1 Puma Ram. Puma Ram once entered in the house of Gopal Bhambhi and a case was registered against him wherein the appellant stood as a witness against Puma Ram. The another witness Dhanna Ram is also having inimical relations with the appellant on account of a dispute regarding a cow. 18. Puma Ram once entered in the house of Gopal Bhambhi and a case was registered against him wherein the appellant stood as a witness against Puma Ram. The another witness Dhanna Ram is also having inimical relations with the appellant on account of a dispute regarding a cow. 18. DW-3 Panna Ram stated that a false case has been lodged against the appellant regarding attempt to commit rape on account of enmity. The appellant advanced loan to the tune of Rs. 25,000/- to Dudha Ram but despite demand the loan amount was not returned and a false case has been lodged against the appellant. 19. These are the witnesses, who are immediate neighbours of the complainant and the appellant. They stated that they did not hear anything about the occurrence as alleged by the complainant. 20. DW-4 Bhanwar Ram is the attesting witness to Ex.D/5, by which a sum of Rs. 25,000/- was given as loan by the appellant to the complainant and her husband Dudha Ram. He has proved the document Ex.D/5 and stated that Dudha Ram and Champa Devi took the loan of Rs. 25,000/- from the appellant for purchasing a camel-cart and affixed their thumb impression in his presence. 21. Ex.D/1 is an affidavit submitted by Nema Ram, the son of the complainant, before this High Court on 19.2.2003 stating therein that on 30.1.2003, no occurrence took place with the prosecutrix. He was available at his residence on 30.1.2003 and remained there till 1.2.2003 and he did not go out of the house. His mother has lodged a false case against the appellant on account of family dispute. His house is situated adjacent to the houses of the complainant and the appellant. He further stated that there is enmity between the appellant and PW-1 Puma Ram as Puma Ram is on visiting terms with the complainant and the appellant had objected Puma Ram's frequent visits to the house of his mother. He further stated that it was Puma Ram who got a false case registered against the appellant. 22. He further stated that there is enmity between the appellant and PW-1 Puma Ram as Puma Ram is on visiting terms with the complainant and the appellant had objected Puma Ram's frequent visits to the house of his mother. He further stated that it was Puma Ram who got a false case registered against the appellant. 22. On close scrutiny of the statements of various prosecution witnesses, as noticed above, it is established that the FIR Ex.P/2 has been lodged at the instance and behest of PW-1 Puma Ram and it is PW-1 Puma Ram who got the FIR scribed at his own instance, which is evident from the statement of PW-13 Lichhu Dan Charan, who has clearly admitted that it was Puma Ram, on whose saying he scribed the report. At any rate, according to the statement of PW-13 Lichhu Dan Charan, complainant did not disclose anything to him. 23. Moreso, there is no mention in the FIR Ex.P/2 that while the prosecutrix was lying on the cot, the appellant was lying over her with open knot of the Dhoti. Even in the statement given by PW-3 Mangi Devi to the police, there is no mention that when she reached the house of the appellant, she found the appellant lying over the prosecutrix with open knot of Dhoti. On the contrary, she stated that when she reached the house of the appellant, she found her daughter lying on the cot and on seeing her, the appellant ran away. Thus, there is no direct evidence showing that the appellant was lying over the prosecutrix or making attempt to commit rape on the prosecutrix. 24. The prosecutrix has not been examined during investigation by the police. She was not cited as a witness by the police and even she was not examined in the Court. In these circumstances, the whole prosecution case rests on the sole testimony of PW-3 Mangi Devi, who claims herself to be an eye-witness to the occurrence and as such her statement needs a close and cautious scrutiny in the light of the dispute and enmity between the parties, and more particularly keeping in view the fact that Purna Ram's frequent visits to the house of the complainant had been objected by the appellant as also even by complainant's son Nema Ram. 25. 25. The statement of PW-3 Mangi Devi does not find any corroboration from the medical evidence. On the contrary, the medical report, Ex.P/4, totally negatived the prosecution case as is evident from the statement of PW-9 Dr. Madan Lal, who medically examined the prosecutrix but did not notice any external injury, as also no injury or sign of attempt to commit rape was noticed on the private parts or pubic region of the prosecutrix, nor the prosecutrix complained any pain. From the statement of PW-9 Dr. Madan Lal, who also examined the appellant vide Ex.P/5, there was no reflection of penis and the appellant was not found capable of performing sexual intercourse easily. Neither, one who is not capable of performing sexual intercourse easily, would make any attempt to rape, is a very material fact, which creates a serious doubt in the prosecution story regarding an attempt to rape by the appellant on prosecutrix, as alleged by the prosecution. A person physically incapable of having sexual intercourse cannot be guilty of rape or of even an attempt to commit rape. 26. There is reliable evidence that there exists a dispute between the appellant and the complainant party with regard to the property as also on account of non-payment of loan amount advanced by the appellant to the complainant and her husband Dudha Ram vide Ex.D/5, which has been fully established from Ex.D/5 and the evidence of DW-1, DW-2, DW-3 as also by the statement of DW-4 Bhanwra Ram, who is attesting witness to Ex.D/5. 27. Moreso, none of the persons, who allegedly reached the house of the complainant soon after the occurrence, has been examined. PW-3 Mangi Devi clearly admitted that many persons, including ladies, came to her house, but none of them has been produced by the prosecution. On the contrary,. the witnesses, who have been examined by the prosecution in support of its case, are the residents of far-distant places and from the evidence it also appears that they belong to one political party and were the supporters of PW-1 Purna Ram in certain political elections. Thus, the non-examination of independent witnesses further creates doubt regarding truthfulness and veracity of the prosecution case. 28. Learned Public Prosecutor and the learned counsel for the complainant relied on the judgment of this Court in Sule Khan Singh and Ors. Thus, the non-examination of independent witnesses further creates doubt regarding truthfulness and veracity of the prosecution case. 28. Learned Public Prosecutor and the learned counsel for the complainant relied on the judgment of this Court in Sule Khan Singh and Ors. v. State, 1999 Cr.L.R. (Raj.) 401 ; Bhaiya alias Ameer Ul-Haq v. State of Rajasthan, 1993 Cr.L.R. (Raj.) 572 and Balkishan v. State of Rajasthan,1980 Cr.L.R. (Raj.) 520 . In Sule Khan Singh's case (supra), there was direct evidence of attempt to commit rape with the prosecutrix therein, namely Mst. Toshi. The prosecutrix herself appeared as prosecution witness and proved the case. The statement of the prosecutrix was fully corroborated and supported by the direct evidence of the eye-witnesses as also from the medical evidence. The prosecutrix therein suffered numerous injuries which were proved by the doctor who medical examined her. Her clothes, including her Salwar, were torned and she was made naked. The Court held that the conduct of the accused was indicative of a determination to gratify his passion at all events and inspite of all resistence. In Bhaiya alias Ameer Ul-Haq's case (supra), the prosecutrix suffered numerous injuries including blood present around vulva and there was a small tear, 1/4 cm in the post forechette and the prosecutrix herself appeared in witness box, though she was a child of 4 years of age and stated the manner in which the incident took place. The accused therein was convicted for committing attempt to rape. In Balkishan's case (supra), as a result of sexual intercourse by the accused therein with the prosecutrix, the underwear of the prosecutrix as well as Tehmad of the accused got smeared with blood and human semen and also there was some blood on the grass where the occurrence took place. In that case, the prosecution proved the case by examining the prosecutrix a child witnesses, as also from the medical evidence and the fact that the underwear of the prosecutrix and the Tehmad of the accused were smearing with blood and human semen which were recovered soon after the occurrence, apart from other direct evidence produced by the prosecution. 29. The aforesaid decisions relied on by the learned Public Prosecutor and the learned counsel for the complainant are of no help to the prosecution as the aforesaid judgments run on the facts of their own case. 29. The aforesaid decisions relied on by the learned Public Prosecutor and the learned counsel for the complainant are of no help to the prosecution as the aforesaid judgments run on the facts of their own case. In the instant case, as discussed above,the prosecution story as such becomes doubtful in absence of statement of the prosecutrix as also on account of unreliable and uncorroborated prosecution evidence. There is no medical evidence on record suggesting the offence of attempt to rape. On the contrary, the medical evidence runs counter to the prosecution case. The appellant, on being medically examined by the doctor, was found to be incapable of doing sexual intercourse easily, as also there was no reflection of penis when examined by the doctor. In these circumstances, therefore, the medical evidence suggests that the appellant was incapable of committing rape or making an attempt to rape. 30. PW-3 Mangi Devi, the mother of the prosecutrix, stated that the report of the occurrence was lodged on third day of the occurrence. PW-2 Champa Devi, the complainant, has stated that the report was lodged on the next day of the occurrence. PW-11 Licchu Dan Charan categorically stated that he scribed the FIR as dictated by PW-1 Puma Ram who is having inimical relations with the appellant which is obvious from the statement of the prosecution as well as defence witnesses, as discussed hereinabove. There are material contradictions and improvements in the statement of the prosecution witnesses. In the FIR Ex.P/2 lodged by PW-2 Champa Devi on the information given by PW-3 Mangi Devi, there is no mention that the appellant was sitting over the prosecutrix.The only statement is that the prosecutrix was weeping. It has not been stated that the appellant was either sitting over the prosecutrix or lying on her. These material infirmities in the prosecution evidence, on being pitted against the defence evidence, the irresistable conclusion is that the entire prosecution story becomes doubtful and the prosecution has failed to prove the case against the appellant beyond reasonable doubt. The defence evidence appears to be more probable. In Ashok Kumar v. State of Bihar, 2003 (1) Crimes 187 (SC) , the Hon'ble Apex Court held as under : "These four witnesses namely, DW-1 to DW-4, are not stated to be related to any of the accused. They are four independent persons. The defence evidence appears to be more probable. In Ashok Kumar v. State of Bihar, 2003 (1) Crimes 187 (SC) , the Hon'ble Apex Court held as under : "These four witnesses namely, DW-1 to DW-4, are not stated to be related to any of the accused. They are four independent persons. It is unfortunate that the High Court did not deal with this aspect of the case. It also did not attach any importance to the admitted position of bitter hostility between the parties. Though that by itself may in some cases be not of much relevance to make prosecution case vulnerable, in the present case alongwith other factors it is relevant. By totally ignoring the evidence of DWs 1 to 4 which more than cast doubt on the case of the prosecution grave injustice has been done to the accused. What weight could have been attached to it is another matter. But non-consideration is not proper. That adds vulnerability to the prosecution case, as the discussions supra go to show." 31. In this view of the matter, I am of the considered opinion that the prosecution has failed to bring home guilt to the appellant beyond reasonable doubt and the benefit of doubt must go to the appellant. In these circumstances, the judgment and order under appeal cannot be sustained and the same is liable to be set aside. 32. In the result, the appeal is allowed. The judgment of conviction and order of sentence dated 1.8.2003 passed by the learned Additional Sessions Judge (Fast Track), Nagaur in Sessions Case No. 49/2003 (22/2003) is hereby set aside. Appellant-Kishna Ram S/o Nanu Ram Kumhar is acquitted of the offence under section 376/511 Indian Penal Code. He is in jail. He shall be set at liberty, if not required in any other case.Appeal allowed. *******