JUDGMENT Amareshwar Sahay, J. 1. This appeal is directed against the judgment dated 2.4.1992 passed by the 1st Additional Sessions Judge, Dumka, in Sessions Case No. 388/1990/81/1990, whereby the appellant Gobardhan Marandi was convicted for committing the offence under Section 376, IPC and was sentenced to undergo R.I. for a period of five years. 2. The prosecution case, in short, is that in the night of 24.1.1990 the informant PW 3 was sleeping on her Verandah. At that time a man came and all on a sudden by removing her attire started committing rape on her. She protested at which the accused gagged her mouth. In the light of "Dhlbari" which was burning, she identified that person as the appellant Gobardhan Marandi. When the appellant allegedly removed his hand from her mouth of the informant then it is said that she raised truth taking the name of the appellant. At this her father, who was sleeping nearby, woke up and came running towards her and then the appellant started fleeing away from there but he, while fleeing away fell down and then he was caught hold of by her father and was brought to the house of "Gurait" (Head) of the village namely Kalicharan Hembrom. The "Gurait" kept the appellant in his house for the whole night and, thereafter, in the next morning panchayati was held and it is said that during the panchayati itself the appellant fled away. Thereafter, the FIR was lodged by the informant. The appellant claimed to be innocent and pleaded that he was falsely implicated in this case due to enmity in collusion with Pradhan of the village. 3. In order to establish the charge, on behalf of the prosecution six witnesses were examined. Out of them PW 1 Kalicharan Hembrom is the "Gurait" of the village. PW 2 Babulal Kisku is the father of the informant. PW 3 Dhanmuni Kisku is the informant herself. PW 4 Pushpalata Tudu is the Doctor, who examined the victim girl. PW 5 Lalu Kisku is the brother of the informant and PW 6 is Md. Jabbar Khan a formal witness. The Investigating Officer was not examined by the prosecution. 4. From the evidence of the Doctor, Pushpalata Tudu (PW 4) it appears that she did not find any external or internal injury on the person of the victim. Even no injury was found on her private part. Jabbar Khan a formal witness. The Investigating Officer was not examined by the prosecution. 4. From the evidence of the Doctor, Pushpalata Tudu (PW 4) it appears that she did not find any external or internal injury on the person of the victim. Even no injury was found on her private part. Her hymen showed old tear. No injury or foreign hair was found around her private part. Even on microscopical examination, no spermatozoa was found. On radiological examination the victim was found to be below 19 years of age. No definite opinion about rape was given by the Doctor. The occurrence is said to have been taken place in the night of 24.1.1990 and the victim girl was medically examined on 26.1.1990. 5. PW 1 Kalicharan Hembrom, who was declared hostile, stated that he was "Gurait" of the village. This witness did not support the case of the prosecution. PW 2 Babulal Kisku is the father of the victim girl. He has stated in his evidence that in the night of occurrence, he was sleeping in the verandah of his house with his son Lalu Kisko. In the same verandah his daughter Dhanmuni Kisko was also sleeping on the floor. In the mid night Dhanmuni, his daughter started shouting that Gobardhan has come, at this he woke up and asked as to what has happened and then he saw that the appellant Gobardhan was fleeing away. In course of that he fell down and then he was caught hold of by this witness. His daughter told him that Gobardhan did commit rape on her and then Gobardhan was taken to the house of "Gurait", i.e., PW 1. In his cross-examination this witness has stated that at the time of lodging of the FIR the Village Pradhan namely, Ram Murmu was with him and he also put his signature in the FIR. He further stated that a proceeding under Section 107 Cr PC was going on in between Ram Murmu and the appellant Gobardhan. He has further stated that when he had caught Gobardhan, at that time 10 to 12 villagers had assembled there, Le., Raso Hembrom, Doctor Hembrom, Baijnath who were amongst those villagers and he told the villagers abotu the occurrence. It appears that none of the villagers named above were examined by the prosecution. He has further stated that when he had caught Gobardhan, at that time 10 to 12 villagers had assembled there, Le., Raso Hembrom, Doctor Hembrom, Baijnath who were amongst those villagers and he told the villagers abotu the occurrence. It appears that none of the villagers named above were examined by the prosecution. PW 3 Dhanmuni Kisko, the victim girl/informant in her evidence repeated her version what she had stated in the FIR. 6. PW 5 Lalu Kisku is the brother of the victim. He has stated that he was also sleeping with his father in the night of the occurrence in the verandah and his sister was sleeping nearby. On hulla firstly, his father woke up and thereafter, he also woke up. He saw the appellant fleeing away. His father caught hold the appellant and was taken to "Gurait". His sister stated before the "Gurait" that the appellant had committed rape on her. PW 6 is a formal witness who has proved Ext. 4. 7. Mr. Anuj Prakash, learned counsel appearing for the appellant has submitted that the medical report and the medical evidence did not support the case of the prosecution of rape on the victim Dhanmuni Kisku. The Doctor has specifically stated that no any kind of any external or internal injury was found either on the person or on the private part of the victim. It was submitted that according to the informant she resisted while the appellant was committing rape on her but it is surprising that no injury of any kind on her person was found by the Doctor. Therefore, the story put forward by the prosecution was unbelievable. In support of his submissions the learned counsel for the appellant relied on the decision in the case of Pratap Misra v. State of Orissa, and has specifically referred paragraph 9 of the said judgment. The learned counsel for the appellant further submitted that according to the victim, she handed over her petticoat, which contained the stains but curiously enough nothing has been brought on record by the prosecution as to whether the said petticoat was sent for chemical examination. Even to corroborate the said fact the Investigating Officer was not examined by the prosecution. The learned counsel for the appellant further submitted that according to the victim, she handed over her petticoat, which contained the stains but curiously enough nothing has been brought on record by the prosecution as to whether the said petticoat was sent for chemical examination. Even to corroborate the said fact the Investigating Officer was not examined by the prosecution. It is further submitted that just after the occurrence, according to the prosecution the informant and her father went to PW 1 where the appellant was kept for the whole night but since PW 1 has been declared hostile by the prosecution, therefore that part of the prosecution story, has not been proved beyond doubt. Even the independent witnesses who were named by the father of the victim who had collected in the house of the "Gurait" PW 1 have not been examined by the prosecution. 8. On the other hand the learned counsel for the State has submitted that the accused appellant was caught at the spot by the father of the victim and since the victim herself stated about the commission of rape on her by the appellant and, therefore, the prosecution established the charge beyond all reasonable doubt against the appellant. 9. The Supreme Court in the case of Pratap Misra cited by the appellant while dealing with a case under Section 376, IPC on consideration of the fact that the prosecutrix had resisted the commission of rape by the accused, has held that if the story of prosecutrix is true then it is expected that an injury or bruise mark on the breasts or chest or on the thighs or other part of the bodies of the prosecutrix should be there. In the present case I find that the prosecutrix was below the age of 19 years, her hymen showed old tear. No injury or foreign hair was found around the private part and no spermatozoa was found and, therefore, the case of resistance by the prosecutrix does not appear to be convincing and believable. It may be that the appellant had sexual intercourse with the victim with her consent. No injury or foreign hair was found around the private part and no spermatozoa was found and, therefore, the case of resistance by the prosecutrix does not appear to be convincing and believable. It may be that the appellant had sexual intercourse with the victim with her consent. The fact of not supporting the case of the prosecution by PW 1 who was the first person before whom the fact of commission of rape was disclosed for the first time also goes against the prosecution and makes the case of the prosecution doubtful, more so in view of the fact that not a single independent witnesses, i.e., the villagers were examined by the prosecution. 10. Considering the totality of the evidence of the prosecution, the medical evidence, none examination of the Investigating Officer and the independent witness and also in view of the decision of the Supreme Court in the case of Pratap Misra (supra) I hod that the prosecution has not been able to established the charge of commission of rape against the appellant beyond all reasonable doubt. Therefore, in my view, the conviction and sentence of the appellant as awarded by the trial Court is held to be erroneous. In view of the above discussions an findings, this appeal is allowed. The conviction and sentence passed by the trial Court against the appellant is hereby set aside. The appellant who is on bail is discharged from the liability of his bail bonds.