JUDGMENT :- Taking exception to their conviction for the offence punishable under Section 342 read with 34 and 376 (2)(g) read with 34 of the Penal Code and resultant sentence respectively of rigorous imprisonment for six months and four years and fine of Rs.500/- and 1000/- for the aforesaid offences, imposed upon them by learned 10th Additional Sessions Judge, Nagpur, accused in Sessions Trial No.444 of 1993 before the learned Judge have preferred this appeal. 2. The facts, in the context of which the appellants came to be prosecuted, are as under: The prosecutrix Shanta Chainlal Uikey, aged about 13 years, at the time of incident, had gone to ease at about 7.00 p.m. behind her house. Accused Nos.1 and 2 suddenly came near her. Accused No.1 Rajkumar gagged her mouth and took her to open space in dark. Accused No.1 Rajkumar removed his clothes. Accused No.2 Lalit caught hold of the victim and Rajkumar first raped her. Thereafter accused No.2 Lalit also raped her, followed by accused No.1 Rajkumar again. Accused prevented the victim from leaving the spot till about 10.00 p.m. and threatened her that she should not disclose the incident to anyone. Her neighbour Diwakar who came there and saw the incident, went to victim's house and informed her parents. Victim's parents took her to Police Station, Wadi where she lodged oral report whereupon an offence was registered. 3. In course of investigation police performed spot panchnama, caused statements of witnesses to be recorded, caused victim as well as accused to be medically examined, collected medico legal samples and caused them to be sent to Forensic Science Laboratory and on completion of investigation sent charge-sheet to the Court of Chief Judicial Magistrate, Nagpur, who committed the case to the Court of Sessions. 4. The learned Additional Sessions Judge, to whom the case was assigned, charged two appellants of offences punishable under Sections 342 read with 34 and 376(2)(g) read with 34 of the Penal Code. Since the accused pleaded not guilty they were put on trial. In its attempt to bring home guilt of the accused the prosecution examined in all nine witnesses. Upon consideration of the evidence tendered before him, in the light of defence of denial taken, the learned trial Judge came to convict and sentence the appellants, as aforementioned. Aggrieved thereby the appellants have preferred this appeal. 5. In its attempt to bring home guilt of the accused the prosecution examined in all nine witnesses. Upon consideration of the evidence tendered before him, in the light of defence of denial taken, the learned trial Judge came to convict and sentence the appellants, as aforementioned. Aggrieved thereby the appellants have preferred this appeal. 5. I have heard both, learned counsel for the appellants and learned Additional Public Prosecutor for the State. 6. With the help of both learned counsel I have gone through evidence on record to find out whether the conviction of the appellants suffers from any infirmity. The Medico Legal evidence, in the form of report of Forensic Science Laboratory, at Exhs.2, 3 and 4 is unhelpful to the prosecution since the report of the Laboratory at Exh.2 shows that no semen or spermatozoa were detected on the vaginal swab or pubic hair of the victim. There was no blood or semen on her clothes. 7. The report about medical examination of appellant Rajkumar showed that the appellant was capable of performing sexual intercourse. However, since no external injury was noticed on the genitals no opinion could be given about previous intercourse. As may be seen from certificate at Exh.28 P.W.1 Dr. Nareshchandra Sethiya examined victim to ascertain her age and concluded by certificate at Exh.33 that the victim was about 14 years in age. 8. The prosecutrix Shanta was examined as P.W.2. She stated that at about 7 to .7.30 p.m. she had gone to ease in open land which was at a distance and therefore, cries from the open land could not be heard in the village. She stated that when she was returning, accused Rajkumar had caught her hand. Accused Lalit also came there and both of them carried the victim to Khadan-quarry. She claimed that she cried for help and one Diwakar also came there. According to Shanta, accused asked Diwakar to sit there and told Diwakar not to convey anything to anyone. Thereafter one after another accused committed forcible sexual intercourse with her and did not allow her to leave till 1 0.00 p.m. She stated that on returning home she narrated the incident to her mother and on the very night they went to Police Station and gave report vide Exh.35. Thereafter one after another accused committed forcible sexual intercourse with her and did not allow her to leave till 1 0.00 p.m. She stated that on returning home she narrated the incident to her mother and on the very night they went to Police Station and gave report vide Exh.35. She stated that she was sent for medical examination about 3-4 days after her report which is contradicted by P.W.7 Vidya. In cross-examination she stated that she could not cry loudly because she was being threatened. The place where she was raped was a Stone Quarry. Therefore, she stated that there was abrasion on her back as well as legs. She claimed that there was swelling on her private part and internal part was torn with bleeding from vagina. 9. P.W.7 Dr. Vidya had examined the victim on 5-6-1993 i.e. on the next day of the incident. She did not find any mark of external injury. She stated that hymen was ragged but there was no evidence of fresh injury. She claimed to have collected necessary samples and sent them through the police to the Forensic Science Laboratory. She proved her certificate at Exh.48. This medical evidence would give a lie to the story of forcible sexual intercourse by two persons on stony ground. 10. She claimed that Diwakar was sitting there all the while. She claimed that she had stated so to the police. She denied the suggestion that she had good relations with Diwakar and that on the incidental evening Diwakar followed her and when the accused saw Diwakar going on towards her the accused told her that she should not go with Diwakar and that they would report it to her parents. The fact of presence of Diwakar is also mentioned in the report at Exh.35, though it is not stated that Diwakar was sitting there all the while. 11. P.W.6 Diwakar who was supposed to be an eyewitness of the incident turned hostile and denied that any such incident took place in his presence. 12. P.W.3 is hostile witness on spot panchnama at Exh.39 and seizure vide Exh.40, 41 and 42. 13. P.W.4 Chainlal is father of the prosecutrix. He stated that on the incidental evening as he did not find the prosecutrix in the house he searched for her but at 9.30 p.m. prosecutrix came home weeping and told him about the incident. 12. P.W.3 is hostile witness on spot panchnama at Exh.39 and seizure vide Exh.40, 41 and 42. 13. P.W.4 Chainlal is father of the prosecutrix. He stated that on the incidental evening as he did not find the prosecutrix in the house he searched for her but at 9.30 p.m. prosecutrix came home weeping and told him about the incident. He stated that he went to the house of accused but they were not found at home and thereafter he took his daughter alongwith his wife to the Police Station where report was lodged. 14. P.W.5 Purushottam was Head Master of the school where Shanta was studying and he proved birth date of Shanta from the cel1ificate at Exh.35 based on the school register. 15. P.W.8 P.S.I. Purandare recorded F.I.R. vide Exh.51 and conducted investigation. P.W.9 P.S.I. Waghmare conducted remaining part of the investigation. 16. It may be seen that the story of the prosecutrix does not receive any corroboration from Diwakar who was allegedly present. Medical evidence and report of Forensic Science Laboratory totally belie the statements of the victim. In view of this, the learned trial Judge should have seen that it would be extremely unsafe to rely on such uncorroborated word of Shanta who could have indeed made up a story in order to prevent the accused from telling her parents that she was seen by the accused with Diwakar. Since the defence was thus, probable, the conviction of the appellants was unjustified. The appeal is therefore, allowed. The conviction and sentence of the appellants for the offences punishable under Sections 342 and 376(2)(g) read with Section 34 of the Penal Code are set aside. Instead the appellants are acquitted of the said offences. Their bail bonds stand cancelled. Fine, if paid, be refunded to them. Appeal allowed.