( 1 ) BY this appeal, the appellants seek indulgence of this Court in the judgment passed by the learned V Addl. Sessions judge, Dewas in S. T. No. 173/91 on 17-1-1994 thereby finding the appellants guilty of the offences under Sections 366 and 376 (2) (g) of the IPC, convicted and sentenced them each to suffer R. I. for two years with fine of Rs. 100/-, in default of payment of fine to suffer R. I. for 15 days and to undergo r. I. for ten years and to pay a fine of rs. 200/-, in default of payment of fine to suffer addl. R. I. for 30 days. ( 2 ) THE factual matrix before the trial court were that on 23-4-89 in the night at 8. 00 p. m. in village Hathiguradiya, when prosecutrix Meerabai and her husband dayaram, after taking their night meals, were sleeping in their house. At that time accused Jaggu made a call from outside the house. On opening the door by Dayaram accused umrao, Jagan, Sajan and Devisingh alias Mansingh entered inside the house and started assaulting Dayaram. On this, meerabai asked Dayaram to go away from there. Thereupon all the four accused persons caught hold of Meerabai and took her towards a rivulet in the village and after making her to lie on the ground accused jaggu first committed sexual act with hen. When she tried to cry, her mouth was gagged by a cloth. Thereupon appellant Umrao and sajan committed rape on her and lastly co-accused devisingh also committed rape on the prosecutrix. After committing sexual act, accused Jaggu, Mansingh and Sajan went at Mau leaving Umrao to have a watch on the prosecutrix in a sugarcane field. The prosecutrix then asked Umrao for going to answer the call of nature and when she was going towards the village one Ranjeet PW- 11 met her on the way to whom she disclosed about the incident and along with Ranjeet, she went to her village and thereafter disclosed about the incident to her mother, husband and brother-in-law. On 24-4-89 at 12. 30 in the noon, she lodged the report at p. S. Haatpiplya Ex. P/1. The prosecutrix was sent for medical examination and Dr. . Velankar examined her and her report is ex. P/2. On 24-4-89 at 12. 30 in the noon, she lodged the report at p. S. Haatpiplya Ex. P/1. The prosecutrix was sent for medical examination and Dr. . Velankar examined her and her report is ex. P/2. The doctor prepared two slides of vaginal swab and handed it over to Constable mohansingh who in turn made over the same to Head Constable Madanlal. Madanlal also seized one petticoat of meerabai vide Panchanam Ex. P/7 and also prepared spot map Ex. P/5 in presence of the witnesses. He also recorded the statement of witnesses. Appellant Sajansingh was arrested on 15-5-89 while accused Jaggu and Mansingh were arrested on 17-5-89. They were also medically examined and according to the medical report they were found capable to perform sexual act. However, accused Umrao could not be arrested, identification Parade was held by Tehsildar antarsingh wherein the prosecutrix identified sajansingh, Mansingh and Jaggu. The report of the Chemical Examiner is Ex. P/20 according to which stains of human spermatozoa were found on the petticoat. ( 3 ) ACCUSED Umrao was shown to be absconding. Co-accused Jaggu remain absent on 21-4-93, therefore, warrant of arrest was issued against him. This accused too was declared absconding by order dated 30-11-93. ( 4 ) AFTER usual investigation charge-sheet was filed against the appellants and Sajan. They pleaded not guilty and claimed trial. Their plea was that they were falsely implicated. They examined one witness radheshyam (DW-1) in their defence. After trial, the learned trial Court finding the appellants guilty of the offences charged, convicted, and sentenced them as indicated hereinabove. ( 5 ) NONE appeared for the appellants. This court heard the learned Govt. Advocate and also perused the entire record carefully. It emerged from the statement of the prosecutrix pw-3 Meerabai that she was not knowing the appellants and co-accused Jaggu from before the date of incident and their names were disclosed to her by PW-1 Ranjeet who met her on the way when she was returning towards the village. In Para 12 of her deposition she stated in this fact specifically. She also admitted that co-accused jaggu was residing near her house, but, she was not knowing him prior to the date of incident and she had no relation with him. In Para 12 of her deposition she stated in this fact specifically. She also admitted that co-accused jaggu was residing near her house, but, she was not knowing him prior to the date of incident and she had no relation with him. If the prosecutrix PW-3 Meerabai was not knowing the appellants then how the names of the appellants and other co-accused are mentioned in the First Information Report lodged by Meerabai at Police Station. The prosecutrix tried to explain this vital ambiguity saying that she was informed the names of appellants and other co-accused persons by PW-1 Ranjeet, but, PW-1 Rajeet has not stated so. Therefore, her version to this effect does not appear to be true and does not inspire confidence. The questions of informing the names of the appellants and other co-accused persons by Ranjeet also would not arise because Ranjeet was not the eye-witness of the incident and this witness ranjeet has also not stated that he informed the names of the appellants and other coaccused persons to the prosecutrix. ( 6 ) PW-1 Ranjeet has stated on the date of incident, he was going on the road and he saw a girl crying coming towards him and she asked to help her. Her clothes were torn. She told him that some persons were after her, but he did not see any person nearby. He took that woman to village Guradiya. He was informed on the way by the prosecutrix that she was lifted by some persons and there was quarrel. He further deposed that he took the prosecutrix to the village deogarh and handed over her to her mother. Thereafter they all three went at the Police station Hat Piplya where Meerabai lodged the First Information Report Ex. P/1. This witness in examination-in-chief Para 3 has specifically stated that the prosecutrix disclosed the names of the persons but, at that time he was standing outside. ( 7 ) IN view of the statement of the witness ranjeet, the version of the prosecutrix as mentioned in Paras 12, 13 and 14 of her deposition stands falsified that the names of the accused persons were disclosed by this witness. This is a vital infirmity in the prosecution case which has been overlooked by the learned trial Court. ( 7 ) IN view of the statement of the witness ranjeet, the version of the prosecutrix as mentioned in Paras 12, 13 and 14 of her deposition stands falsified that the names of the accused persons were disclosed by this witness. This is a vital infirmity in the prosecution case which has been overlooked by the learned trial Court. During the course of investigation, after arrest, the accused persons were put to identification parade which was conducted by PW-18 Tehsildar antarsingh Chauhan. When the names of the accused persons were mentioned in the fir and co-accused Jagdish was residing near the house of the prosecutrix then why the test identification parade was held by the police during the course of investigation is not understandable and the prosecution has not explained this situation in the Court. If the accused persons were not known to the prosecutrix, and the prosecutrix would have not mentioned their names in the FIR, in that situation there was necessity of holding the test identification parade during the course of investigation. ( 8 ) ACCORDING to the statement of the prosecutrix pw-3 Meerabai and her husband pw-2 Dayaram, accused persons reached at their house and co-accused Jaggu knocked at the door whereupon Dayaram opened the door and all the four accused persons started assaulted him by lathi as a result of which he sustained injuries on his right shoulder and he was also got medically examined by the police. But, his medical report has not been filed by the prosecution along with the charge-sheet. According to pw-2 Dayaram the incident took place in the night between 9 and 10 p. m. and his wife was abducted by the accused persons in his presence, but he failed to explain as to why he did not lodge the report immediately at the police station in the same night. The report was lodged on the next day i. e. on 24-4-89 at 12. 30 noon. What he was doing during this period has also not been explained by him. According to this witness when he reached at the Police Station, he met his wife there. This witness has also slated in Para 5 that prior to the date and time of incident, he was not knowing the accused persons by their names and faces. He again changed his version and deposed that he was knowing the co-accused Jaggu. According to this witness when he reached at the Police Station, he met his wife there. This witness has also slated in Para 5 that prior to the date and time of incident, he was not knowing the accused persons by their names and faces. He again changed his version and deposed that he was knowing the co-accused Jaggu. According to him, accused persons reached at his house and broke open the door. He was also assaulted and fell unconscious. This version of this witness is contrary to the statement of his wife. His wife PW-3 has nowhere stated that the accused persons broke open the door. According to her after night meals at about 8. 00 p. m. , they were sleeping. The co-accused Jaggu called them at which her husband asked about the whereabouts of the persons standing outside the house and in reply, the co-accused jaggu stated that they were guests from village Mau. On this reply her husband opened the door. Thereafter all the four entered inside the house and started assaulting her husband by lathi causing injuries on left shoulder and right parietal region of the head. PW2 Dayaram, the husband of the prosecutrix has deposed in para 7 of his deposition that he lodged the report but no such report has been filed by the prosecution. His statements were recorded after 4/5 days by the police in the village. He failed explain the material omissions and contradictions occurring in his case diary statement (Ex. D. 1) regarding non-mention of the fact that his wife asked him to run away or else the accused persons would kill him and co-accused Jaggu called him and he sustained injury on the right shoulder. ( 9 ) THE version of PW-3 prosecutrix meerabai about commission of forcible sexual intercourse after throwing her on the ground by four persons, has not been corroborated by PW-8 Dr. Vidya Velankar. In para 3 this witness has specifically stated that it was not appearing that the prosecutrix was raped or forcibly subjected to sexual intercourse and the contusions found on the left scapula region could be caused by fall. She has also staled that the prosecutrix refused to give her petticoat and for this punpose this witness recorded her consent in report Ex. P. 2. She also prepared the slides of vaginal swab. She has also staled that the prosecutrix refused to give her petticoat and for this punpose this witness recorded her consent in report Ex. P. 2. She also prepared the slides of vaginal swab. This is an admitted position by the prosecution that at the time of medical examination of the prosecutrix, her petticoat which was said to have been worn at the time of incident, was not seized and after some days the same was produced try her husband. This Court has verified the document and Ex. P. 7 is not the seizure memo of the petticoat, but it is the medical report of co-accused Jagdish. None of the police witnesses has proved the seizure memo of petticoat and also not deposed instatement to this effect. PW-12 Bhagirat has stated that before 3 years from the date of recording of his statement i. e. 20-3-1992 one petticoat was produced before the police by Dayaram, and police prepared the seizure memo on which he put his thumb impression, but, the seizure memo has not been exhibited in his statement. ( 10 ) IN this state of the evidence of not allowing the seizure of petticoat at the time of medical examination, production of the same after some days and non-proving and accepting seizure report Ex. P. 20 of the FSL regarding presence of semen and human spermatoza on the petticoat of the prosecutrix cannot be considered against the accused persons. In slides of vaginal swab semen and human spermatozoa was not found which also goes against the prosecution and virtually belies the story of prosecution with regard to sexual intercourse with the prosecutrix by the four persons. There was no delay in medical examination of the prosecutrix and there was absolutely no circumstance on the basis of which the absence of semen and human spermatozoa could be explained by the prosecution. ( 11 ) THE prosecutrix PW-3 Meerabai in her statement deposed that she was dragged up to a long distance. She sustained injuries on various parts of her body, but she did not sustain injuries by dragging. This version of the prosecutrix has not been corroborated by the medical evidence. ( 11 ) THE prosecutrix PW-3 Meerabai in her statement deposed that she was dragged up to a long distance. She sustained injuries on various parts of her body, but she did not sustain injuries by dragging. This version of the prosecutrix has not been corroborated by the medical evidence. ( 12 ) IN the result, this Court is of the considered view that the prosecution has utterly failed to prove its case beyond all reasonable doubt against the appellants and in consequence thereof the appeal succeeds, the appellants' conviction and sentence are hereby set aside. They are on bail. Their bail bond and surety bond shall stand discharged. Fine, if deposited, shall be refunded to them. Appeal allowed. .