ORAL JUDGMENT: 1. This is an appeal by accused no.1 Shiva, who was convicted by the Sessions Judge for having committed an offence under Section 376, 342 and 352 of Indian Penal Code and who was sentenced to imprisonment for period of ten years for offence under Section 376 of the Indian Penal Code, Six months for offence under Section 342 of the Indian Penal Code and one month for offence under Section 352 of the Indian Penal Code. The appellant shall hereinafter be referred to as accused no.1 Shiva. 2. The facts may be narrated thus - On 4/9/2000, the prosecutrix Vinanti Tayade was sleeping at her house along with her husband and children. At about 10 O'clock, accused no.1 Shiva knocked the door of her house and called her. She and her husband woke up and opened the door. Accused no.1 Shiva took out a knife for assaulting the husband of prosecutrix and he assaulted him with fist blows. She asked Shiva accused no.1 to go away. Accused no.2 Dinesh was also standing by the side and was giving threats. Accused no.1 Shiva then pulled the prosecutrix out of the house, pushed her husband inside and chained the door of her house from outside. Accused no.1 Shiva took the prosecutrix in the bath-room adjacent to the house and accused no.2 Dinesh was standing outside to guard. When Shiva was trying to have sexual intercourse with her, her husband unchained the door, came out of the house. Accused Shiva then rushed to assault her husband once again with a knife. Prosecutrix snatched the said knife from the hands of Shiva and kept it with her. Then, she was taken behind a school by both of them. Accused no.1 Shiva again went to the house of the prosecutrix for assaulting her husband. Accused no.2 Dinesh then caught hold of her hand and took her to a public latrine where he committed rape on her. Thereafter, he took her to his own house and at his house his younger brother Umesh also committed rape on her. Thereafter, it is alleged that, Umesh sensed that accused Shiva Sardar had come for assaulting him. Accused no.2 Dinesh hid himself in the bath room as well as the prosecutrix. The prosecutrix, however, escaped and came to the Police Station and lodged report with the Police. Thereafter, it is alleged that, Umesh sensed that accused Shiva Sardar had come for assaulting him. Accused no.2 Dinesh hid himself in the bath room as well as the prosecutrix. The prosecutrix, however, escaped and came to the Police Station and lodged report with the Police. The Police arrested all the accused and sent Vinanti for medical examination. She was immediately medically examined. The accused were also medically examined. The statements of witnesses were recorded and charge-sheet was filed against all the accused. 3. The Judicial Magistrate (F.C.) committed the case to the court of Sessions. Charge against all the accused was framed and they pleaded not guilty. However, subsequently, accused nos.2 and 3 absconded and their trial has been separated. Trial was only against accused no.1 Shiva and upon consideration of the evidence, the Sessions court held him guilty and sentenced him to 10 years rigorous imprisonment. It is against this order of conviction that this appeal has been preferred. 4. I have heard Mr. J.B.Kasat, Advocate for the accused and Mr.A.S.Sonare, Additional Public Prosecutor for the State. 5. The undisputed fact is that prosecutrix is a married woman and lives with her husband. 6. The prosecution has examined PW 1 Anil Khandare as panch, PW 2 Vinanti Tayade is prosecutrix, PW 3 Dr.Mangala is Medical Officer, PW 4 Mukesh is son of prosecutrix and strangely PW 1 Anil is once again examined as PW 5, PW 6 is P.S.I. Ramesh More . the Investigating Officer. It is deposed by PW 1 Vinanti that on date of incident, she had gone to bed along with her husband and children at her home. She states that accused no. 1 Shiva came around 10 p.m., knocked the door of her house and she opened the door. She states further that accused no.1 Shiva and accused no.2 Dinesh were standing at the door of the house and accused no.1 Shiva was holding a knife and he rushed to assault her husband. She further states that accused no.1 Shiva then gave fist blows to her husband and pushed her husband inside the house, pulled her out of the house and chained the door from outside. She also states that he took her in the bath room situated adjacent to her house and then accused no.1 Shiva forcibly committed sexual intercourse with her in the said bath room. She also states that he took her in the bath room situated adjacent to her house and then accused no.1 Shiva forcibly committed sexual intercourse with her in the said bath room. She further states that her husband opened the door by inserting the hand through the gap of the door and unchained it. She states that accused No.1 Shiva then rushed to assault her husband with a knife and she snatched the knife from the hands of accused No.1 Shiva. It is further in her evidence that then accused no.2 Dinesh took her to the public latrine and committed rape on her there. It is further in her evidence that she was then taken at the house of Dinesh where his brother Umesh also committed rape on her. She further states that then she heard shouts of some boys outside the house and therefore accused Dinesh took her in the bath room in order to hide her and she then heard talk of her husband and police. She gave a jerk to the hand of Dinesh and rushed towards her husband and police. She further states that accused Shiva was with the police and she then went to the Police Station and lodged the report (Exh.61). This evidence of PW 2 Vinanti does not at all inspire confidence for several reasons. It may be mentioned that her evidence is not worthy of credit whatsoever for the following reasons. 7. She admits that just by the side of her house, one Sangita lives along with her husband. If Sangita lives just by the side of the house, it is rather strange that she did not hear the shouts of the prosecutrix and prosecutrix did not call Sangita and her husband for help. Neither Sangita nor her husband have been examined as witnesses. PW 2 Vinanti further admits that the place where her house is located is a thickly populated area and there are several other houses. It is rather incredible that no one would come forward hearing the shouts of prosecutrix and her husband. It is stated by her that she was first taken near the public latrine and raped there and then to the house of accused no.2. All these places are located in same area. It is rather incredible that no one would come forward hearing the shouts of prosecutrix and her husband. It is stated by her that she was first taken near the public latrine and raped there and then to the house of accused no.2. All these places are located in same area. One still wonders how people living in the locality, all the way from her house to public latrine and then latrine to the house of Dinesh, nobody could hear the shouts and come forward to help the prosecutrix. In cross-examination she states that accused no.3 Umesh told accused no.2 Dinesh that accused no.1 Shiva has brought some boys to beat him and therefore accused no.3 Dinesh took prosecutrix to the bath room. She states that accused Shiva and police came along with her husband and then she rushed to her husband. It is incredible that accused no.1 Shiva, who had come with Dinesh at the house of prosecutrix and who raped her would bring some boys to assault Dinesh. Both allegedly had a common purpose. In such circumstances, it is improbable that accused no.1 Shiva would bring boys to assault Dinesh. It is stated that accused no.1 Shiva took her to the bath-room and used force against her and there was a scuffle also. Her evidence further shows that each of the accused had forcible intercourse with her i.e. in bath room, public latrine and at the house of Dinesh. Surprisingly, not a single scratch is noticed on the person of the prosecutrix by the Medical Officer. If these persons had used force against her, not only at the time of intercourse even while bringing her out of the house and letting her on the rough surface in the bath room and the latrine, it is rather strange that not even a single scratch is found on her person. In one breath, she says that knife was in the hands of Dinesh and in second breath she puts knife in the hands of Shiva. She tells of having snatched the knife from Shiva when he tried to assault her husband after he came out of the house by opening the door. Now, if she could snatch the knife, at that time there is no reason why she could not do it when both accused had come to her house. She tells of having snatched the knife from Shiva when he tried to assault her husband after he came out of the house by opening the door. Now, if she could snatch the knife, at that time there is no reason why she could not do it when both accused had come to her house. It is also incredible that prosecutrix could snatch a knife from accused no.1 without there being even a scratch on her person. Further, if she had snatched the knife and it was in her hand, it is again incredible that accused Dinesh could catch hold of her and take her forcibly. It has come in her evidence further that after she was raped at public latrine, she was taken to a bore-well and was made to sit there for half an hour. One wonders how prosecutrix was sitting quietly near bore-well in a thickly populated area for half an hour. There is no explanation why she has not raised an alarm even near a bore-well and called the people around. Even while she was taken to the house of Dinesh on foot, she did not raise an alarm. This conduct of the prosecutrix is far from natural and speak volumes against her. Finally, she says that when she was at the house of accused Dinesh, she heard voice of her husband and the police when they were talking with each other. She also says that accused Shiva was with police and she rushed to her husband. Now, if accused no.1 Shiva had committed rape on her, one wonders how he would go himself to the Police Station and come along with police and her husband. There is no explanation to this. If Shiva i.e. the present appellant, was with the police and her husband, in no case the story as is tried to be made out can be accepted as true. 8. It is undisputed that the prosecutrix went to the Police Station immediately and she was in the next day morning sent for Medical Examination. Exh.67 is the Certificate of Medical Examination. It shows that there was no injury on body or private part. No matting of hair is noticed though, allegedly, three persons had sexual intercourse with her. Vaginal smear was taken and pubic hair were also taken. Exh.67 is the Certificate of Medical Examination. It shows that there was no injury on body or private part. No matting of hair is noticed though, allegedly, three persons had sexual intercourse with her. Vaginal smear was taken and pubic hair were also taken. Neither semen nor spermatozoa was detected on the smear or pubic hair inspite of the fact that three persons had allegedly had sexual intercourse with her. It is because of this that the absence of spermatozoa or semen cannot be ignored at all. 9. The next thing that is to be considered is that the prosecution does not examine the best witness i.e. husband of the prosecutrix. An inference has to be drawn against the prosecution that had he been examined, he would not have supported the case of prosecution. It is stated by PW 2 Vinanti . the prosecutrix . that along with her husband and accused Shiva, a policeman had also come there. This Policeman too is neither cited as witness nor examined as witness and he was also one of the best witness available. 10. Even the evidence of the son of the prosecutrix i.e. PW 4 Mukesh, who is quite grown-up, does not inspire any confidence. He deposed that he woke up when the door was knocked and asked his father where his mother was. He told that mother was taken by accused Shiva and Dinesh. He does not say a word about mother being dragged out, father being pushed inside. He states that as soon as father opened the door, they proceeded to take search of his mother while the prosecutrix says that as soon as the door was opened, Shiva rushed to her husband with knife, she snatched the knife and then Dinesh took her under a threat towards the school. Thus, both witnesses contradict each other on a very material aspect. There is no doubt that absence of injuries on private part and other parts of body could not be the sole ground of acquittal. But in this case one has to bear in mind the conduct of the prosecutrix and non-examination of the material witnesses namely; the husband of prosecutrix and the policeman. If these facts are taken into consideration, the fact of there being no injury assumes importance. Entire story as put up by the prosecution, therefore, appears to be absolutely false. But in this case one has to bear in mind the conduct of the prosecutrix and non-examination of the material witnesses namely; the husband of prosecutrix and the policeman. If these facts are taken into consideration, the fact of there being no injury assumes importance. Entire story as put up by the prosecution, therefore, appears to be absolutely false. The learned Sessions Judge misdirected himself and came to a wrong conclusion. There is every reason to hold that no such incident at all occurred. As a result, the accused deserves to be acquitted of the offences for which he was convicted. Hence, the appeal must succeed. Therefore, the following order. The appeal is allowed. Appellant/accused no.1 Shiva @ Prashant s/o Vishwanath Sardar is acquitted of the offences for which he was convicted by the Sessions Judge. He be set at liberty forthwith, if not required in any other case.