JUDGMENT: The appellant is the sole accused in S.C.No.13 of 1997 on the file of the District and Sessions Judge, Udagamandalam. The appellant has preferred the above appeal against the conviction under Secs.376 and 450, I.P.C., and sentencing him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.100, in default to undergo rigorous imprisonment for one week under Sec.376, I.P.C., and to undergo rigorous imprisonment for one year and to pay a fine of Rs.100, in default to undergo rigorous imprisonment for one week under Sec.450, I.P.C., as per the judgment dated 9.1.1998. 2. As per the case of prosecution, on 13.4.1995 at 3 p.m., the appellant (hereinafter referred to as “the accused”) entered into the house of P.W.1 Vasanthi at Door No.927, Vasugi Nagar, Aruvangadu with intend to commit rape and in the kitchen of the house, he committed rape on P.W.1. 3. In order to prove such charges levelled against the accused, the prosecution examined P.Ws.1 to 15 and marked Exs.P-1 to P-26, besides M.Os.1 to 8. On the side of the accused, one Manoharan was examined as D.W.1 and marked Exs.D-1 and D-2. 4. When the accused was questioned under Sec.313, Crl.P.C., with regard to the incriminating circumstances found against the accused in the evidence of the prosecution witnesses, the accused denied the complicity in the crime. 5. The trial Court considering the evidence let in as such on both sides, more particularly, the admission of the accused that he had sexual intercourse with P.W.1 and in refusing to accept the case of the accused that he had sexual intercourse with the consent of P.W.1, found the accused guilty in respect of the offences under Secs.450 and 376, I.P.C., and convicted and sentenced as set out above, which are under challenge in this appeal. 6. When the matter was called on 29.6.2005, there was no representation on behalf of the appellant/accused and this matter was posted on 30.6.2005 and even on that day also, there was no representation on behalf of the appellant/accused and so Thiru N.Duraisamy, was appointed to conduct the case on behalf of the accused in this appeal. 7. Heard Mr.N.Duraisamy, learned counsel, appointed as Amicus Curiae and Mr.A.N. Thambidurai, learned Government Advocate (Criminal Side), appearing for the respondent/ State. 8. 7. Heard Mr.N.Duraisamy, learned counsel, appointed as Amicus Curiae and Mr.A.N. Thambidurai, learned Government Advocate (Criminal Side), appearing for the respondent/ State. 8. Mr.N.Duraisamy, Amicus Curiae, appointed to conduct the case on behalf of the appellant/accused submitted that there are discrepancies in the evidence of P.W.1 and in the complaint Ex.P-1 preferred by P.W.1 with regard to the commission of the sexual act the accused had with P.W.1 and about not making noise while the offence was committed by the accused and then submitted by the Amicus Curiae that inasmuch as P.W.1 did not protest or resist at the time of commission of offence, it shows that P.W.1 was a consenting party. As regards the injuries said to have been caused to P.W.1, according to the Amicus Curiae, there is no mention in the complaint, and the nail marks found by the doctor P.W.9 on the examination of P.W.1 could have been self-inflicted. Learned Amicus Curiae relied on he following decisions: (1) Shankar Lal v. State of Rajasthan, (2006)1 Crimes. 131 . in which the Rajasthan High Court has held thus: "Circumstances to show that prosecutrix was consenting party as she had ample opportunities at various places to make hue and cry to save herself but she took no steps. Medical evidence did not corroborate her as no injury marks either in private parts or anywhere in body were noticed. Proper case to give benefit of doubt." (2) Devinder Singh v. State of Himachal Pradesh,A.I.R. 2003 S.C. 3365, in which the Hon’ble Supreme Court held thus: "A perusal of her report shows that there was no injury on any part of the body. There was no matting of pubic hair with discharge. There were no injuries or tenderness on genital areas. Hymen was ruptured and the old scars were present. No fresh scars or tenderness were found. There was no tenderness in vaginal organ or the cervical area. In her (Dr.Lalitha Negi’s) opinion there was no evidence of recent sexual intercourse and there was no sign of struggle. The prosecutrix was used to sexual intercourse." (3) Sudhansu Sekhar Sahoo v. State of Orissa,A.I.R. 2003 S.C. 2136, in which the Hon’ble Supreme Court held thus: "Rape, Sole testimony of prosecutrix. Prosecutrix an unmarried educated women travelling along with accused at night in a jeep for long distance allegedly for meeting her superior officer. The prosecutrix was used to sexual intercourse." (3) Sudhansu Sekhar Sahoo v. State of Orissa,A.I.R. 2003 S.C. 2136, in which the Hon’ble Supreme Court held thus: "Rape, Sole testimony of prosecutrix. Prosecutrix an unmarried educated women travelling along with accused at night in a jeep for long distance allegedly for meeting her superior officer. She alleging that accused raped her in his house when they reached there. Her conduct is unusual. No rational explanation given as to what urgent official work was there at night. Medical evidence not corroborating her version. No stains of blood or semen on her clothes. She asserting that she was virgin till alleged incident; however, medical evidence revealing that she was habituated to sex. Many loose ends in prosecution case. Accused entitled to benefit of doubt." 9. The learned Government Advocate (Criminal Side) submitted that there is no discrepancy in the evidence let in on the side of prosecution. P.W.1 clearly narrated the occurrence during which time she was raped by the accused. He further submitted that after the occurrence, P.W.4 had seen P.W.1 and the accused leaving the house of P.W.1. It is also argued that nail marks have been found at the time of examination of P.W.1 by the doctor P.W.9 and that the accused himself admitted that he had sexual intercourse with P.W.1, but with her consent, for which there is no satisfactory evidence to accept such a case. It is further submitted by the learned Government Advocate that there is clinching evidence let in through prosecution which is reliable and as such, the conviction of the accused need not be disturbed. The learned Government Advocate relied on the decision in State of M.P. v. Dayal Sahu,2005 Crl.L.J. 4375, in which the Hon’ble Supreme Court held thus: "Once the statement of prosecutrix inspires confidence and accepted by the Courts as such, conviction can be passed only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the Courts for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Non-examination of doctor and non-production of doctor’s report would not be fatal to the prosecution case, if the statement of the prosecutrix and other prosecution witnesses inspire confidence." 10. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Non-examination of doctor and non-production of doctor’s report would not be fatal to the prosecution case, if the statement of the prosecutrix and other prosecution witnesses inspire confidence." 10. The occurrence took place on 13.4.1995 at 2.00 p.m., in the house of P.W.1 at Door No.927 Vasugi Nagar, Aravangadu. The house of P.W.1 is 5 houses away from the house of the accused. The trial Court considering the birth certificate Ex.P-2 relating to P.W.1 and that of the medical evidence, fixed the age of P.W.1 as 18 years at the time of occurrence. After occurrence, the accused came out of the house of P.W.1 and was seen by P.W.4 and P.W.4 has stated in her evidence that she was informed by P.W.1 about the sexual act committed on her by the accused and she has also seen the accused leaving the house of P.W.1. In the complaint Ex.P-1, P.W.1 has clearly stated the occurrence, during which time, the accused entered into the house of P.W.1, P.W.1 immediately came out of the house and went to the house of her sister P.W.4 Panjali and since she was not available, P.W.1 returned back to her house and was standing in the front entrance of the house. The accused did not come out of the house and the back door of the house was bolted from inside. When, the neighbour Parameswari enquired about her standing outside the house, P.W.1 informed that the accused was inside the house and being afraid, she was standing outside the house. Through P.W.1 requested the accused to come out of the house, the accused requested her to come inside otherwise, he will not leave the house. When the accused went to close the front door, P.W.1 entered the house to get the lock and key, but the accused bolted the back door of the house and stated that he will lock the front door, but the accused by pulling her, closed the door and then took her to kitchen room and pushed her down and after lifting the skirt raped on her. Then the accused went out of the house. 11. Then the accused went out of the house. 11. Doctor P.W.9, who examined P.W.1 on 14.4.1995 at 11.05 a.m., has opined that the injuries caused to P.W.1 on her thigh, chest and stomach could have been caused when trying to resist the commission of rape. Doctor P.W.9 issued wound certificate Ex.P-8 and Accident Register Ex.P-9. In Ex.P-9, it is stated as follows: "O/E has abrasion marks over the chest and abdomen scab found multiple abrasion present over chest and abdomen. No abrasion present on thigh and sipra pubic region. Old tear of hymen present, PV admits one finger easily (No bleeding)." 12. It is clear from the evidence of P.W.1 that she was the consenting party for the sexual act committed by the accused, in that P.W.1 made no attempt to escape from the clutches of the accused and also made no attempt to run away from the house, though she was fully aware that the accused came to her house for committing the sexual offence. It is clear from the medical evidence that no injury marks in private parts and more particularly no abrasion was present on thigh and sipra pubic region. Old tear of hymen present and PV admits one finger easily. There was no bleeding. No stains of blood or semen on her clothes were present. Therefore, the evidence of P.W.1 is not corroborated with the medical evidence. The fact that on medical examination PV admitted one finger easily, shows that prosecutrix was habituated to sexual intercourse. The fact that no injury was found on the body of P.W.1 also would go to show that prosecutrix did not show any resistance. Therefore, it can not be said that the accused committed rape on her against her will and the facts clearly reveal that P.W.1 was only consenting party, because of which the accused had intercourse with her. It follows, the offence as alleged against the accused has not been committed to the victim girl/P.W.1. These aspects have not been properly considered by the Sessions Court. Further, the statement of prosecutrix does not inspire confidence and as such, relying on the evidence of prosecutrix, for which there is no corroboration, the accused cannot be found guilty for the offence of rape. These aspects have not been properly considered by the Sessions Court. Further, the statement of prosecutrix does not inspire confidence and as such, relying on the evidence of prosecutrix, for which there is no corroboration, the accused cannot be found guilty for the offence of rape. Accordingly, the finding recorded by the trial Court that the accused is guilty under Secs.376 and 450, I.P.C., requires interference by this Court and it is set aside. 13. In the result, in view of the discussions made above, the appeal is allowed. The judgment of conviction and sentence passed by the trial Court in S.C.No.13 of 1997 for the offence under Secs.450 and 376, I.P.C., are set aside. The fine amount paid by the appellant/ accused is ordered to be refunded to the appellant/accused. 14. This Court appreciates the assistance rendered by Thiru N.Duraiswamy, the Amicus Curiae appointed in this appeal, who argued the case after preparing the case well. Rs.2,000 is fixed as the fee of Thiru N. Duraiswamy, Amicus Curiae appointed by this Court, which is payable to him by the Tamil Nadu Legal Aid Services Authority, High Court, Madras.