1. Appellant has been convicted and sentenced to seven years imprisonment and a fine of Rs. 10,000/- and in default thereof, to further simple imprisonment of two years under Section 376 RPC and to one years imprisonment and a fine of Rs. 1000/- and in default thereof to five months imprisonment under Section 448 RPC, by learned 1st Additional Sessions Judge Jammu, vide his judgment and order of April 23, 2003 and May 12, 2003 respectively. 2. He has appealed to this Court against the sentence awarded to him by the trial Court. 3. The prosecution case, as it emerges from FIR no. 1 of 2000 registered at Police Station Bishnah on prosecutrixs report of January 5, 2000 at about 13.45 hours is, that prosecutrixs husband was out in connection with his private employment and she was busy with her household work when at about 6 p.m, the appellant, without her permission, entered her room, forcibly laid her on a cot lying in the room, broke off her trouser knot and committed sexual intercourse with her against her consent. Noise raised by her could not be heard by anyone because the houses in the locality are situated at a distance from her house. When, after committing sexual intercourse, the appellant tried to run away, she had tried to catch hold of him but could succeed only in getting hold of his shawl which he was carrying. Because her husband was not at home, so she could not lodge report in the Police Station on the day of occurrence itself. 4. During the course of investigation of the FIR, the police seized a woolen shawl, a shoe and the shawl of the prosecutrix. Examination the prosecutrix by Dr. Witty Raina had not revealed any external injuries on her body except a slight bruise on her right breast. The doctor was of the opinion that there was evidence of recent intercourse with the 30 years old married prosecutrix. 5. The case was accordingly committed to learned Sessions Judge, Jammu who later transferred it to learned 1st Additional Sessions Judge, Jammu for its 6. On finding a case under Sections 376/448 RPC made out on the basis of the material placed on records, the appellant was charged for offences punishable under Sections 376/448 RPC. Appellant pleaded not guilty to the charge and claimed to be tried. 7. On finding a case under Sections 376/448 RPC made out on the basis of the material placed on records, the appellant was charged for offences punishable under Sections 376/448 RPC. Appellant pleaded not guilty to the charge and claimed to be tried. 7. In order to support its case, the prosecution examined the prosecutrix, her husband Jia Lal and Dr. Witty Raina Gynecologist, who had examined the prosecutrix. Appellant had examined Surjit Singh and Rattan Lal as his witnesses in defence. 8. Relying upon the statement of the prosecutrix and finding it to have been supported by the report of Mr. K. K. Raina, Scientific Officer, Biology and Serology, Forensic Science Laboratory Jammu, the trial Court, finding the appellant guilty, convicted and sentenced him under Sections 376/448 RPC. 9. Appellants counsel Mr. Ajay Vaid submits that the trial Court had erred in accepting the statement of the prosecutrix, which, according to him, was full of contradictions. Failure of prosecution to produce the parents-in-law of the prosecutrix, who, according to the prosecutrix, had reached on spot and her father-in-law had even tried to catch hold of the appellant, would go a long way in establishing that the prosecution had failed to substantiate its case against the appellant. Learned counsel submitted that Scientific Officers report, was not admissible in evidence, and learned trial court had erred in relying upon it and treating it as a corroborative piece of evidence supporting the testimony of the prosecutrix. Non-production of the Investigating Police Officer too has been projected by the learned counsel as one of the weaknesses in the prosecution case. 10. Learned State Counsel, Mr. B. S. Salathia, on the other hand, submitted that the statement of the prosecutrix was worthy of credence and did not require any further corroboration in view of her statement that the appellant had trespassed into her room and forcibly committed sexual intercourse with her. According to learned State counsel, non-production of the Investigating Officer would not weaken the prosecution case in any manner whatsoever, still less affecting the veracity of the statement of the prosecutrix. 11. I have considered the submissions of learned counsel for the parties and gone through the statements of prosecution witnesses, the defence led by the appellant and the material placed on records of the trial Court. 12. 11. I have considered the submissions of learned counsel for the parties and gone through the statements of prosecution witnesses, the defence led by the appellant and the material placed on records of the trial Court. 12. Before considering the submissions made by learned counsel for the parties at the Bar, brief resume of the statements of the prosecution witnesses needs to be noticed. 13. While appearing as a prosecution witness, the prosecutrix had made a categoric statement that the appellant had spent about half to 3/4th of an hour in completing the sexual intercourse. She goes on to say that her parents-in-law had reached on spot and her father-in-law, on being told about the occurrence, had even ran after the appellant to apprehend him but the appellant had succeeded in making his escape good. According to her, her parents-in-law might have seen the appellant entering her house and had, therefore, ran after him when the appellant had crossed over the boundary wall of the house. 14. Distance of Dewan Chands house, who is immediate neighbour of the prosecutrix, is stated by the prosecutrix to be about 25 feet from her house whereas the distance of her in-laws house from her house is stated by her to be 50 to 60 feet. Her house is stated to be situated by the side of the road and the vehicular traffic continues to ply day and night on the road. While under cross examination, she says that she had tried to raise voice but could not do so because the appellant had covered her mouth with the woolen shawl he was carrying. Appellant would catch hold of her arms and she would try to release her arms from the hold of the appellant and thus there had been a scuffle with the appellant during the process of intercourse but no injury had been caused either to or to the appellant during the process of resistance. She had had intercourse with her husband 4/5 days before the occurrence and 3/4 days after her medical examination. She denied as incorrect the suggestion that a false case had been cooked up against the appellant as her family had to pay the amount which it had borrowed from the appellant for purchasing a buffalo. 15. Prosecutrixs husband, Jia Lal, is not an eye witness to the occurrence. She denied as incorrect the suggestion that a false case had been cooked up against the appellant as her family had to pay the amount which it had borrowed from the appellant for purchasing a buffalo. 15. Prosecutrixs husband, Jia Lal, is not an eye witness to the occurrence. He had deposed about the occurrence on the basis of the information he had got from the prosecutrix. According to him, his parents had reached on spot when the appellant was in the process of committing the intercourse and the appellant had run away therefrom and when he was in the process of running away, his wife (the prosecutrix) had caught hold of his shawl. He had further stated that during the course of appellants running away from the house, one of his shoes had been left by him in the house. He says that when his mother had gone inside the house she had seen that the prosecutrix had caught hold of the appellant, but on seeing her, he had run away. He denied the suggestion of having taken Rs. 5000/- from the appellant. According to him nobody had seen the appellant entering his house and going therefrom except his parents. His parents, according to him, reside at a distance of about two kilometers from his house and on the day of occurrence they bad brought milk for his family. 16. According to Dr. Witty Raina, the 3rd and last prosecution witness, the prosecutrix was habitual of intercourse and according to the report regarding Vaginal Smear there was evidence of recent sexual intercourse with her. 17. I will now deal with the statement of the prosecutrix to find out as to whether or not it inspires confidence for its acceptance. 18. The prosecutrix does not appear to have disclosed either in the FIR or during the course of investigation of the case that her parents-in-law were present at the time of the occurrence and her father-in-law had even chased the appellant to apprehend him. 19. This omission in the FIR and statement recorded under Section 161 of the Code of Criminal Procedure thus assumes importance particularly when the prosecutrix, while making her statement in the Court, had admitted the presence of her parents-in-law in her house and about her father-in-laws attempt to catch hold of the appellant when he had tried to run away therefrom. 20. 20. According to the prosecutrix, she had even informed the police about the presence of her parents-in-law in her house. The police investigation, however, does not support this version of the prosecutrix of her having informed the police about the presence of her parents-in-law in her house at the time of commission of the offence. The investigating agency, therefore, does not appear to have cited the parents-in-law of the prosecutrix as its witnesses in the final police report. The statement of the prosecutrix reveals that the appellant had been seen running away from her room even by her parents-in-law and her mother-in-law had enquired from her as to what had happened and she had narrated the incident to her. The prosecutrix goes on to say that her mother-in-law might have seen the appellant entering her house and it was because of this reason that the parents-in-law had and then ran after the house come running to her appellant. 21. Reading of the statement of the prosecutrix as a whole thus indicates that it was not she who had run after the appellant after he had tried to run away from the house after committing sexual intercourse with her, but the chase had been made by her father-in-law. This statement of the prosecutrix too contradicts her version appearing in the FIR as also her statement recorded under Section 161 of the Code of Criminal Procedure. 22. Another contradiction noticed in the Court statement of the prosecutrix is that she had not made any noise when the appellant had been committing sexual intercourse with her because her mouth had been covered by the appellant with the shawl he was carrying with him whereas in the FIR he had made a categoric statement that she had raised noise at the time of appellants committing sexual intercourse with her, but nobody had come to her rescue because the houses in the colony were located at a distance from her house. 23. According to the statement of the prosecutrix, neither did the appellant nor had she received any injury during the process of scuffle and sexual intercourse which had continued for half to 3/4th of an hour. 24. The prosecutrix had stated that while crossing over the boundary wall of, her house, the appellant had left behind his shoe in the house which had been later seized by the police. 24. The prosecutrix had stated that while crossing over the boundary wall of, her house, the appellant had left behind his shoe in the house which had been later seized by the police. The site plan prepared by the investigating police officer, however, does not indicate about the existence of any boundary wall around the house of the prosecutrix because the room in which the sexual intercourse is stated to have been committed had only one door which has been shown to be opening in the compound which is not shown to be surrounded by any boundary wall. 25. The site plan indicates, and the prosecutrix too admits in her cross-examination that the houses of Malook Dass and Dewan Chand were situated at a distance of 10 feet and 25 feet respectively from her house. 26. The aforementioned contradictory statements made by the prosecutrix in the FIR and in her Court statement would, therefore, put the Court on guard while considering the acceptability or otherwise of her statement. 27. Omission of the prosecutrix to indicate in her FIR and during the currency of the investigation about her parents-in-law having seen the appellant in her house and even chased him, has not been explained by the prosecution. The version projected by the prosecutrix and her husband, who, although was not an eye witness, and had stated whatever had been told to her by the prosecutrix on his coming home, about the active role played by her parents-in-law after seeing the appellant at her house thus indicates that the parents-in-law of the prosecutrix were very important witnesses to unfold the real story regarding the occurrence as projected by the prosecution. 28. Keeping the earlier statement of the prosecutrix reflected in the FIR and her statement under Section 161 of the Code of Criminal Procedure in view, the prosecution story as it was sought to be projected in the Court that the occurrence had been witnessed by the parents-in-law of the prosecutrix and the father-in-law of the prosecutrix had even chased the appellant to apprehend him, cannot be believed in the absence of the statements of the parents-in-law of the prosecutrix. 29. 29. Prosecutrixs contradictory statement made in the FIR and in the Court giving different versions for her not making noise when the appellant had been committing rape on her leads one to believe that the story projected by her that she had tried to make noise when the appellant had caught hold of him to rape her, was not truthful. This is so because the houses of the neighbourers, as admitted by the prosecutrix in her cross-examination were not at such a far-off distance that they could not have heard the cries of the prosecutrix had she made any noise. Her story projected in the Court statement that she could not make noise because her mouth had been covered by the appellant with his shawl too cannot be believed as this part of the story had not been reflected by her in her detailed FIR and statement under Section 161 of the Code of Criminal Procedure. 30. The prosecutrixs statement becomes further doubtful when she gives different version of the occurrence. Her statement that she had run after the appellant after he had completed the sexual intercourse gets belied by her own statement when during the course of her cross-examination she admits that she was still lying and had not put on her trouser when the appellant had run away and she had narrated about the incident to her parents-in-law who had by that time reached there and enquired from her as to what had happened. On hearing the prosecutrix, the father-in-law of the prosecutrix had run after the appellant to apprehend him. 31. I, am, therefore, of the view that in view of above referred various major contradictions and significant unexplained omissions appearing in the statement of the prosecutrix and in her earlier version reflected in the FIR and statement made under Section 161 of the Code of Criminal Procedure, the statement of the prosecutrix would not warrant its acceptance as such unless it had been corroborated by at least her parents-in-law who could throw light on the complaint of the prosecutrix about her having been raped by the appellant who had been seen running from her house by them. 32. Non-production of the parents-in-law by the prosecution has thus weakened the prosecution case to a great extent. 33. Another circumstance which weakens the prosecution case is the non-production of the investigating officer. 32. Non-production of the parents-in-law by the prosecution has thus weakened the prosecution case to a great extent. 33. Another circumstance which weakens the prosecution case is the non-production of the investigating officer. Because of the non-production of the investigating police officer, the prosecution had not been able to prove the sending of samples which the investigating agency appears to have collected during the course of the investigation to the Forensic Science Laboratory, to prove that the trouser of the prosecutrix was semen stained. Report of the Scientific Officer, relied upon by the trial Court under Section 510 of the Code of Criminal Procedure was, therefore, inadmissible in evidence and could not in law be relied upon as an incriminating evidence against the appellant in the absence of any evidence of the prosecution proving the factum of sending of the trouser to the Forensic Science Laboratory to seek the expert opinion. 34. Learned trial Court has not considered all these shortcomings appearing in the statement of the prosecutrix and the prosecution case as such. 35. Non-consideration of the contradictions in the statement of the prosecutrix appearing in the FIR, statement under Section 161 of the Code of Criminal Procedure and in her Court statement coupled with the non-production of parents-in-law of the prosecutrix has thus resulted in mis-appreciation of evidence by the learned trial Court. 36. The prosecution story that the appellant had committed sexual intercourse for half to 3/4th of an hour and despite prosecutrixs resistance, no injury had been received either by the prosecutrix or by the appellant during the course of sexual intercourse, is too hard to be believed because neither has the investigating agency noticed any evidence of resistance by the prosecutrix on spot nor has the prosecutrix hinted at any other thing at the time of the occurrence which may prove her statement that she had resisted the appellants attempt to rape her. 37. The prosecution has not attributed any act of intimidation or threat by the appellant to the prosecutrix during the Course of alleged rape. 38. Considering the case as projected by the prosecution, in its totality, I am, therefore, of the view that the prosecution has failed to lead convincing evidence to prove forcibly entry of the appellant into the prosecutrixs house and his committing sexual intercourse with her against her consent and will. 39. 38. Considering the case as projected by the prosecution, in its totality, I am, therefore, of the view that the prosecution has failed to lead convincing evidence to prove forcibly entry of the appellant into the prosecutrixs house and his committing sexual intercourse with her against her consent and will. 39. The judgment of conviction and order of sentence recorded by learned Additional Sessions Judge, Jammu against the appellant cannot thus be sustained. 40. Allowing this appeal, judgment of April 23, 2003 and order of May 12, 2003 of learned Additional Sessions Judge, Jammu convicting and sentencing the appellant under Sections 376/448 RPC is, accordingly, set aside.