JUDGMENT R.R. Prasad, J. 1. The sole appellant Chhotiya @ Tarkeshwar Mahto was put on trial to face charge under Section 376 of the Indian Penal Code on the allegation of committing rape upon Sarita Devi. The trial Court having found the appellant guilty for the said charge sentenced him to undergo rigorous imprisonment for ten years and also to pay fine of Rs. 2000/- and in case of default further to undergo rigorous imprisonment for three months. 2. The case of the prosecution is that on 30.5.1997 at about 11.30 a.m. while the prosecutrix Sarita Devi was in her gohal (cowshd) for feeding cattle, the appellant entered into the gohal through northern side of the door and got the door bolted and then he caught hold of her and by extending threat of dire consequence committed rap upon her. Further case is that when she raised alarm, her husband Umesh Prasad Mehta (PW 3) came over there and pushed open the door and caught hold of the appellant, when she disclosed her husband that he had committed rape upon her. Other persons on hearing her hulla assembled there but the appellant succeeded in getting himself released from the clutches of her husband and fled away. 3. Thereafter Sarita Devi on the same day gave her fardbeyan (Ext. 3) before Padma Out Post at about 4 p.m., upon which a case was registered and the matter was taken up for investigation. In course of investigation. Investigating Officer Md. Mustakiri (PW 9) visited the place of occurrence, took statement of the witnesses and also got Sarita Devi medically examined by Dr. Kalpana Saran (PW 5), who on examining her did not find any injury over the body or private parts. No spermatozoa was found on the vaginal swab. Dr. issued medical report (Ext. 2) opining therein that no definite opinion about rape can be given. 4. After completion of investigation, Investigating Officer submitted chargesheet. Thereafter the case was committed to the Court of Sessions where charges were framed to which appellant pleaded not guilty and claimed to be tried. 5. It would be pertinent to note here that prosecutrix was not examined as she died after one month of the occurrence. However, according to defence, she was murdered by family members of her in-laws family for which a case was lodged. 6. 5. It would be pertinent to note here that prosecutrix was not examined as she died after one month of the occurrence. However, according to defence, she was murdered by family members of her in-laws family for which a case was lodged. 6. In this case the prosecution examined as many as ten witnesses. Of them PW 1 Bajo Mahto (c) Baijnath Mahto, father-in-law of the prosecutrix, PW 2 Ramcharitar Mahto, Bhaisur of the prosecutrix, PW 3 Umesh Prasad Mehta, husband of the prosecutrix and PW 4 Chinta Devi, Gotni of the prosecutrix have testified that on alarm being raised by Sarita Devi, they came at the gohal where the appellant was present and Sarita Devi disclosed to them that the appellant has committed rape upon her. Thereafter he was caught hold by PW 1 and by that time people also assembled over there but the appellant succeeded in fleeing away from there. PW 6 Tilak Mahto, PW 7 Sukhdeo Prasad Mahto and PW 8 Kun-deshwar Prasad Mehta did not support the case of the prosecution and hence, they were declared hostile. 7. After closure of the prosecution, the appellant was questioned under Section 313 of the Code of Criminal Procedure on the incriminating circumstances appearing against him to which he denied. 8. The defence appears to be denial of the entire occurrence. However, defence witness who was examined as DW 1 as deposed that when there was some altercation in the house of the prosecutrix, he came over there and found the appellant and other persons assembled there and on being asked, the appellant told them that he had come to take a tool and that was also supported by the prosecutrix but she had never stated before them that the appellant had committed rape upon her. 9. 9. The trial Court on the basis of evidence did hold that even though the prosecutrix was not examined by the prosecution on account of her death, but the testimonies of PWs 1,2,3 and 4 go to establish the guilt of the appellant as their evidences to the effect that when they found the appellant at gohal, the prosecutrix disclosed to them that appellant had committed rape upon her and as such the evidences of that witnesses are admissible as forming part of res gestae, even though medical evidence is otherwise not showing positively any evidence regarding sign of rape and, therefore, appellant was convicted and sentenced as aforesaid. 10. Being aggrieved with the judgment of conviction and order of sentence, the appellant has preferred this appeal. 11. Learned Counsel appearing for the appellant submits that admittedly prosecutrix has not been examined on account of her death and the medical evidence also does not support the case of the prosecution and in that view of the matter, judgment of conviction cannot be sustained. Learned Counsel further submits that the circumstances appearing in the case go to suggest that prosecutrix was consenting party to the alleged act, and, therefore, the trial Court committed illegality in convicting the appellant. 12. As against this, learned Counsel appearing for the State submits that in the facts and circumstances the trial Court has rightly taken the evidences of PWs 1, 2, 3 and 4 admissible and hence conviction based upon those evidences are justified, 13. Having heard learned Counsel appearing for the parties and on perusal of the records, I do find that according to the case of the prosecution, the prosecutrix while was in her gohal (cowshed) was ravished by the appellant and on alarm being raised when the witnesses including PWs 1, 2 and 3 came over there, they saw the appellant at gohal and then the victim disclosed to the witnesses that the appellant had committed rape upon her. On the other hand, stand has been taken on behalf of the appellant that the circumstances would go to show that this is not the case of the rape, as the victim had, sex with consent. Under these circumstances, one needs to take notice of the place of occurrence and its surroundings. On the other hand, stand has been taken on behalf of the appellant that the circumstances would go to show that this is not the case of the rape, as the victim had, sex with consent. Under these circumstances, one needs to take notice of the place of occurrence and its surroundings. Accordingly, having perused the evidences of PW 2 as well as PW 3, it does appear that several houses are situated in and around the house of PW 3 Umesh Prasad Mehta, the husband of the prosecutrix. It does further appear that gohal (cowshed) situates just adjacent north to the house and both is connected with the door and that door is having bolt from inside of the gohal and it does also have latches (beri) from outside leading to house. Further it does appear that gohal does have two doors, one reference of which has come hereinbefore which connects the gohal to house and other situates at northern side leading to outside and that door does not have any blot or latches from outside though it does have blot from inside and that witnesses particularly PW 3 has specifically said that if one has to come from outside then he will first come to gohal and then will enter in the house from the door which lies in between gohal and house and that apart, there is also entry in the house from the backyard. Thus, it is evidently clear that the said gohal where occurrence is said to have taken place is the entry point of the house, though house does have another entry from the backyard. But according to evidence of the witnesses, main entrance is the gohal and in that event one is not expected normally to commit offence of rape forcibly at the main entrance and that too at 11.30 a.m., unless the victim gives consent. It has also come in the evidence of PWs 1, 2 and 3 that on the day of occurrence, PW 1 father-in-law, PW 2 brother- in-law (Bhaisur) and PW 3 husband had been to brick kiln and only PW 4 (wife of PW 2) had been in the house. It is significant to note here that as per the statement made by the prosecutrix in her Fardbeyan (Ext. It is significant to note here that as per the statement made by the prosecutrix in her Fardbeyan (Ext. 3) the door which connects gohal to house was closed by the latches from the side of the house and if that door is closed from the side of the house, then the inmates of the house normally would not expect something is going inside gohal. It also leads for one to think as to why that door was locked from the inside of the house when the prosecutrix was therein gohal, normally one would expect that the persons would go to gohal from the house. In that event one would naturally think that why did she come to gohal from other side and that too when the male members were not in the house. It does appear by evidence of PW 3 that he came from the site of brick kiln and entered into the house from the backyard and, therefore, prosecutrix my not have noticed that her husband had reached to the house. But it appears that when PW 3 saw the appellant and the prosecutrix in the gohal, the prosecutrix in order to save her prestige might have made false statement that the appellant committed rape. This fact gets further strengthened from the version of PW 4, who has testified that when the accused were seen at gohal, alarm was raised, upon which villagers came and Umesh Prasad Mehta (PW 3) husband of the prosecutrix caught hold of the accused but he was signaled to go away and then appellant fled away. The witness has not made it clear as to who gave signal to flee away, but in the facts and circumstances, it could be obviously prosecutrix and none others. Thus, all these circumstances go to sow that the prosecutrix was the consenting party to the act of the commission of rape if such occurrence did occur. 14. The other important aspect of the matter is that though the witnesses have stated that they saw the cloth of the prosecutrix smeared with dirt, but the Investigating Officer in his evidence at paragraph 9 has not supported that fact, rather his evidence is contrary to that. Moreover, Dr. 14. The other important aspect of the matter is that though the witnesses have stated that they saw the cloth of the prosecutrix smeared with dirt, but the Investigating Officer in his evidence at paragraph 9 has not supported that fact, rather his evidence is contrary to that. Moreover, Dr. Kalpana Saran (PW 5) has also not found any sign of rape upon the prosecutrix and in spite of that, appellant has been convicted mainly by taking into consideration the evidences of PWs 1, 2, 3 and 4 as admissible as a part of res gestae. Those statements made by the witnesses though have been relied upon but according to Investigating Officer (PW 9) as has been testified in paragraphs 10, 11 and 15 that the witnesses, namely, PW 1, PW 2 and PW 3 have not stated before him that prosecutrix disclosed to them that the appellant committed rape upon the prosecutrix. Moreover, even if it is assumed that witnesses had made statements just before the occurrence that the prosecutrix disclosed that the appellant committed rape but those statement is admissible not as evidence of the truth of the charge but as evidence of the credibility of the complainant. But here in the instant case, as has been stated above, the version of the prosecutrix in her fardbeyan cannot be taken to be true at all. 15. Regard being had to the facts and circumstances, as stated above;, the judgment of conviction and order of sentence passed by the trial Court cannot be sustained. Accordingly, it is said set aside. Consequently, appellant is acquitted and is discharged from the liability of the bail bonds. 16. In the result, this appeal is allowed. Appeal allowed.