JUDGMENT Hon’ble Mrs. Poonam Srivastav, J.—Heard Sri M.P. Yadav, learned counsel for the appellant and learned A.G.A. for the State. 2. The appeal was filed by two accused namely Jafar and Rihan sentencing them to 5 years R.I. under Section 376 I.P.C. and a fine of Rs. 1000/-. In default of payment of fine further imprisonment of 1 year. The appellants have been further convicted under Section 342 I.P.C. and a fine of Rs. 5000/- each was imposed and in default of payment of fine, three months further imprisonment. 3. The accused Rihan died during pendency of appeal and the appeal in respect of the appellant stood abated vide order dated 14.7.2009. The occurrence is alleged to have taken place on 29.4.1980 at 2.00 P.M. and F.I.R. was lodged by prosecutrix herself on the same day at 20.15 at Police Station Nahtaur situated at a distance of 1 ½ furlong. Injuries of the prosecutrix were examined on 30.4.1980 at 11.30 a.m. in District Hospital, Bijnor by Dr. Manju Gupta which is as under : 4. Examined Kumari Shamima urf Chammo D/o Abdul Latif, R/o Mohalla Rang Rajan Nahtaur, Distt. Bijnor. Identified and brought by constable Bhagwat Singh CP. No. 703 Thana Nahtaur Bijnor on 30.4.80 at 11.30 a.m. in Distt. Hospital Bijnor female hospital for the evidence of age & rape. Mark of identification Height - 5 1" Weight - 53 Kg. Teeth - 14+1/ 29+1 ——— 15 Space for last molal present Breast well developed. X-Ray of following joints : Wrist joint Elbow joint Knee joint. Ankle joint. The girl sent to X-Ray department Distt. Hospital Bijnor. RTI of Kumari Shamima urf Chammo. Identification Marks (1) A black mole about .1 cm. x .1 cm. present on the sternum, below the mid point of supra-clavicular fossa. Axillary hair- thick growth of black hair is present. Pubic hair-thick growth of black hair is present on examination. Examination of Pvt. Part- There is no mark of any external injury over vulva. Hymen is torn. P/v as admits 2 fingers lightly cervie feels normal uterus feels normal size vaginal smear taken and sent to pathological laboratory Distt. Bijnor hospital for evidence of spermatozoa. Sd/- Illegible 30.4.80 (Seal) 5. In supplementary medical report dated 30.4.1980 by Pathology Department District Hospital, Bijnor it was reported that no spermatozoa was seen. X-Ray report No. 142 dated 30.4.80 is Ex. Ka-4. Bijnor hospital for evidence of spermatozoa. Sd/- Illegible 30.4.80 (Seal) 5. In supplementary medical report dated 30.4.1980 by Pathology Department District Hospital, Bijnor it was reported that no spermatozoa was seen. X-Ray report No. 142 dated 30.4.80 is Ex. Ka-4. According to Radiologist, age of the prosecutrix is above 17 and below 18 years. It is also opined by doctor that she is used to sexual intercourse and no definite opinion could be given about the time of last sexual intercourse. 6. Prosecution examined five witnesses to prove its case. Shamima was examined as PW-1, Wazir Ahmad as PW-2, Bhuri as PW-3, Dr. Manju Gupta as PW-4 and S.I. Sri Mahavir Singh as PW-5. Charge sheet was submitted against both the accused. Charge was framed on 14.1.1982 by the Vth Additional District & Session Judge, Bijnor. 7. The argument of learned counsel for the appellant Sri Yadav is that since there is no injury on the body of the prosecutrix and according to doctor she was above 17 and below 18 years of age, possibility that she was a consenting party cannot be ruled out. Besides, there was no mark of injury as well as torn clothes which could go to establish any scuffle between the prosecutrix and two accused at the time of commission of crime. The report of Pathologist completely negates the story of rape. However, he was not able to elucidate on the reason as to why there will be false implication of the accused. 8. Learned counsel has placed statement of witnesses including that of Dr. Manju Gupta, Medical Officer, Female Hospital, Bijnor where she has admitted in her cross examination that the prosecutrix was not more than 18 years but since no injury was found on her body, it cannot be said whether it was case of rape or not. Besides, she has also admitted in her cross examination that in the event 2 to 4 persons attempt to use force for committing rape and carry her away, some injuries at least abrasion are bound to be present which was not in the present case. The doctor was therefore not definite whether rape was committed or not. 9. Learned counsel has placed reliance on a recent decision of the Apex Court in the case of Bibhishan v. State of Maharashtra, 2008 (1) JIC 423 (SC). The doctor was therefore not definite whether rape was committed or not. 9. Learned counsel has placed reliance on a recent decision of the Apex Court in the case of Bibhishan v. State of Maharashtra, 2008 (1) JIC 423 (SC). He has specifically placed paragraph 6 of the said judgment which is quoted below : “We have gone through the judgment of both the Courts below and also perused the necessary record. As per the evidence of the doctor, there was no injury on the body of the prosecutrix Anita. There was no sign of semen on the private part of the body. Neither her clothes were torn nor there was any presence of hair of the accused on the private part of the prosecutrix. The doctor after examining the prosecutrix deposed that the girl was habituated to sexual intercourse. In view of this evidence, we are of the opinion that the High Court as well as the trial Court has not correctly appreciated the evidence and has wrongly convicted the accused-appellant. The accused who has been charged under Section 376 read with Section 511 IPC is entitled to benefit of doubt.” 10. Learned A.G.A. has objected and disputed all the arguments advanced by learned counsel for the appellant. He submits that since there are eye witnesses to the incident who had seen commission of rape by two accused through creak of the door and only after the accused were challenged they ran away from the back door. This itself is sufficient to uphold the conviction. Besides, emphasis is on the fact that the F.I.R. is prompt one lodged by the prosecutrix herself and on the same day. The factum of commission of crime has sufficiently been established by the prosecution and accused is liable to be sentenced for an offence under Section 376, I.P.C. 11. I have examined the statement of all the witnesses as well as medical evidence, F.I.R. and also taken into consideration the entire facts and circumstances. Admittedly there are no injuries on the body of the prosecutrix and in view of the decision of the Apex Court, I cannot loose sight of the fact and consideration that neither clothes of the prosecutrix were torn nor there was any other evidence to substantiate the factum of force and consequent ‘rape’. The fact that the prosecutrix was habitual can also not be ignored. The fact that the prosecutrix was habitual can also not be ignored. The Apex Court had acquitted the accused on identical fact as in the present case. Lady doctor has admitted that she is habitual and also that some minor injury is a normal phenomena which is liable to occur in the event, the victim is lifted or taken away by force. This is completely absent and not evidenced in the present medical report. 12. In view of what has been stated above, I do not think that the judgment of conviction can be upheld. The appeal is allowed. The judgment and order dated 11.8.1982 passed by the Vth Additional District and Session Judge, Bijnor is set aside. The appellant is acquitted. He need not be present in the Court. ————