JUDGMENT S.L. Kochar, J. Being dissatisfied with the judgment of conviction rendered in ST No. 172/02 by Additional Sessions Judge, Narsinghgarh District Rajgarh on 3rd September, 2003 thereby convicting the appellant for the offences punishable u/s 376(1) Indian Penal Code and sentencing him to suffer RI for 7 years with fine of Rs. 5000/- , in default of payment of fine to suffer 6 months SI and u/s 450, Indian Penal Code sentencing RI for 3 years with fine of Rs. 1000/- in default of payment of fine, to suffer additional SI for 1 month. The facts of the case giving rise to this appeal are that the Prosecutrix (PW 1) Sodarabai aged about 30 years, was residing with her husband and children in village. In the intervening night of 22nd and 23rd August, 2002 at about 1.00 a.m. while the Prosecutrix was sleeping inside her house with her children, her husband had gone to celebrate festival at her sister's house to some other village; appellant entered inside the house and committed rape upon her. Prosecutrix raised cry, on which her brother-in-law (PW 6) Devisingh reached at her house and saw the appellant running away. Husband of the Prosecutrix reached on the next day. She disclosed about the incident to him and both of them reported the incident to village Choukidar, who suggested them to lodge report in police station. Therefore, they got the report typed and submitted the same in the police station. On 23-8-2002 the Prosecutrix was got medically examined by PW 5 Dr. Sarita Yadav. The appellant was arrested and also got medically examined by (PW 2) Dr. Mustafa Rajjak. After necessary investigation, charge-sheet was filed for the abovementioned offence against the appellant. Appellant abjured his guilt. According to him, there was dispute between the husband of the Prosecutrix and the appellant regarding ploughing of the field, situated between the agricultural land of the appellant and Ramprasad by the husband, of the Prosecutrix (PW 3) Ramprasad. The land was meant for the use as approach road. There was quarrel between them on this count because of which, after due deliberation, a false case has been concocted by the Prosecutrix and her husband against him. In the alternative it was argued on behalf of the appellant that the circumstances are suggesting that the Prosecutrix was a consenting party. There was quarrel between them on this count because of which, after due deliberation, a false case has been concocted by the Prosecutrix and her husband against him. In the alternative it was argued on behalf of the appellant that the circumstances are suggesting that the Prosecutrix was a consenting party. Learned trial Court framed charges and put the appellant on trial. The Prosecution examined in total 7 witnesses whereas the appellant examined 2 witnesses in defence. Learned trial Court, after hearing both the parties convicted the appellant as mentioned hereinabove. Learned Counsel for the appellant has submitted that the submission of the typed report itself is sufficient to indicate that a false case has been concocted by the Prosecutrix and her husband against the appellant on account of dispute over the land meant for the use as approach road. In the alternative Learned Counsel also put forth that the Prosecutrix was a consenting party, her version has not been corroborated by the medical or any other independent witness even by her brother-in-law Devisingh. Learned Counsel has also submitted that chemical analysis report of slide of vaginal swab prepared by lady Dr. (PW 5) Sarita Yadav and clothes of the Prosecutrix were not sent for chemical examination and for this lapse adverse inference should be drawn against the Prosecutrix. Per contra, learned Government Advocate appearing for the State has submitted that solitary statement of the Prosecutrix, her conduct of raising cry and the immediate disclosure to her husband and village Choukidar on the next day are sufficient to base conviction of the appellant. Learned Public Prosecutor has supported the judgment and finding arrived at by the learned trial Court. Having heard Learned Counsel for the parties and after perusing the entire record of the case, it emerged that the Prosecutrix, a married woman aged 35 years would not allow anybody to commit forcible sexual intercourse against her will and consent especially when she was sleeping inside her house with three children. The say of the Prosecutrix is that in the night of Rakhi Festival at about 1.00 a.m. she was sleeping inside her house with three children, the door was not closed from inside, and the light was on, at that time appellant entered inside her house and committed bad act after pressing her mouth. The say of the Prosecutrix is that in the night of Rakhi Festival at about 1.00 a.m. she was sleeping inside her house with three children, the door was not closed from inside, and the light was on, at that time appellant entered inside her house and committed bad act after pressing her mouth. In paragraph 2 she has deposed that her mouth was pressed by the appellant after performance of bad act. The appellant switched of light, raised her Petticoat and after removing under wear committed bad act. At that time, she called her brother-in-law Devising, residing in nearby the house. This version of the Prosecutrix has not been supported by PW 6 Devisingh. He has turned hostile. The Prosecutrix has also stated that while going, the appellant did not say anything but again in the same breath, she stated that while abusing, he threatened her not to disclose anybody. On the next day, her husband returned back to the house. She disclosed about the incident to her husband and thereafter they went to police station and lodged report. The verbal report was not lodged; the report got typed and thereafter submitted the same before the police. The Prosecutrix in the same breath stated that she lodged verbal report and the same was recorded by the Station House Officer in the police station. Thereafter, she deposed that the report was got typed outside the police station and after putting thumb impression on the same, it was submitted in the police station. In paragraph 7, the Prosecutrix has admitted that her husband ploughed the field which was situated between their field and the field of the appellant as approach road but denied about quarrel on this issue between the appellant and her husband. It appears that she has not disclosed true position. It is common experience that in village whenever road of common use or approach road, which can be used by several villagers/agriculturists, if obstructed by any person, the villager/agriculturists object the same and also enter into quarrel because it causes difficulty to them for reaching up to their fields. In paragraph 9 she has deposed that though she got the report typed but she was not knowing what she had disclosed to the typist and what was typed by the typist. She also admitted that she kept the door open and her husband was not inside the house. In paragraph 9 she has deposed that though she got the report typed but she was not knowing what she had disclosed to the typist and what was typed by the typist. She also admitted that she kept the door open and her husband was not inside the house. For this purpose she has given explanation that her husband told her for returning back and she was waiting for him upto late hours in the night but he did not return, therefore, she did not close the door from inside and slept. This explanation does not appear to be true because normally a woman, in absence of her husband or any other male major member in the family usually cannot keep the door open for the whole night. In paragraph 1 she had deposed that she went on bed after closing the door. It appears that in cross-examination when she faced the question as to how the appellant entered inside the house, she explained by saying that the door was kept open. On her medical examination by Dr. (PW 5) Sarita Yadav, no external or internal injury was available. It is not a prosecution case that the appellant ravished her at the point of dagger because of that she could not put resistance. The appellant was empty handed. According to the statement of the Prosecutrix, he entered inside the house, switched off light, lifted her petticoat and thereafter removed underwear and then performed bad act. For the performance of sexual intercourse, she has not also deposed in specific words about penetration and everywhere she has stated that the appellant committed KHOTA KAAM (bad act). A married woman aged about 35 years, would not allow a single handed person to ravish her without putting stiffest resistance. She has deposed that after completion of act, she raised cry, called her brother-in-law (PW 6) Devising. This also does not appear to be true because at the time of commission of rape, her mouth was not gagged by the appellant, therefore, she could have raised cry and called for her rescue to her own brother-in-law, Devisingh, who has not supported the prosecution case and turned hostile. It appears that the appellant was seen in the odd hours of night in or near the house of the Prosecutrix by (PW 6) Devisingh. It appears that the appellant was seen in the odd hours of night in or near the house of the Prosecutrix by (PW 6) Devisingh. Prosecutrix came to know this fact, therefore, just to save her chastity on the next date; she concocted a case against the appellant and made complaint to her husband. The version of her husband in paragraph 3 is that when they reached the police station for lodging the report, police asked them to submit typed report, therefore, they got it typed and submitted the same in police station. (PW 7) B. M. Kushwah, Investigating Officer has not stated so. The say of this witness is that the complainant (PW 1) Sodarabai submitted a report Ex. P/7 and on the basis of the said report, he registered First Information Report, Ex. P/5. Nowhere he has stated that he asked the Prosecutrix and her husband to submit typed report (PW 2) Dr. Mustafa Rajjak has examined the appellant and did not find any external injury on his person. He proved his report Ex. P/1. The defence witness (PW 2) Gopilal inhabitant of the same locality has also deposed that in the night of Rakhi festival, he did not hear any kind of cry coming from the house of Ramprasad or alarm raised by the Prosecutrix but this witness has admitted in cross-examination that Ramprasad picked up the quarrel with him on account of closing of way by putting door. He has also deposed in cross-examination that even if he would have not heard cry of the Prosecutrix, he would have not gone to her house because of possibility of his false implication by the Prosecutrix. PW 3 Ramprasad, husband of Prosecutrix, in paragraph 3 has stated that he went to village Choukidar who directed him to go police station and lodge report. The Prosecution has not examined village Choukidar. The appellant has examined him as DW 1 Harnath Singh. He has stated that PW 1 Sodarabai, Prosecutrix and her husband Ramprasad never came to him and reported the incident of rape committed by appellant with the Prosecutrix and he also did not hear any kind of cry or shouting of the Prosecutrix. The Prosecution has not examined village Choukidar. The appellant has examined him as DW 1 Harnath Singh. He has stated that PW 1 Sodarabai, Prosecutrix and her husband Ramprasad never came to him and reported the incident of rape committed by appellant with the Prosecutrix and he also did not hear any kind of cry or shouting of the Prosecutrix. On overall assessment of the statement of the Prosecutrix and other witness, this Court is of the opinion that the prosecution has failed to prove its case beyond all reasonable doubt against the appellant, therefore, he deserves acquittal. Consequently, this appeal is allowed. The conviction and sentence of the appellant are hereby set aside. The appellant is in jail. He is directed to be released forthwith, if not required in any other criminal case. Final Result : Allowed