JUDGMENT Sham Sunder, J.:- This appeal is directed against the judgment of conviction, dated 07.09.96, and the order of sentence, dated 09.09.96, rendered by the Court of Additional Sessions Judge, Faridabad, vide which, it convicted the accused (now appellant), and sentenced him, as under:­ Name of the accused Offence for which Sentence awarded (now appellant) convicted 1 2 3 Kishan Under Section 376 of To undergo rigorous the Indian Penal Code. imprisonment for a period of six years, and to pay a fine of Rs.1000/-, in default thereof, to further undergo rigorous imprisonment for a period of six months. 2. The facts, in brief, are that, Udi Ram Jatav, was running a small grocery shop at village Nangla Lohagarh. On 03.10.95, he had gone away, to purchase goods for the shop. On that day, at about 9.30 PM, his wife i.e. that complainant, had gone out of her house, to answer the call of nature, near the wall of Periwal Rice Mill, situated on the outskirts of the village. Accused Kishan, emerged there, all of a sudden. He caught hold the complainant of her hand. When she resisted, the accused put his hand, on her mouth, and took her near the stacks of bricks at a distance of 15-20 yards. There, he lay her on the ground, forcibly broke the waist string (nara) of her trousers (salwar) and committed sexual intercourse with her, against her will. When the complainant raised alarm, Itbari son of Gopi and Khem Chand son of Samanta, prosecution witnesses, were seen coming towards that side. By that time, the accused after having committed rape upon the complainant, fled therefrom. The aforesaid prosecution witnesses, saw the accused fleeing therefrom. 3. On the next day, the complainant, took her husband with her and went to the Police Station. She made a complaint, on the basis whereof, first information report PE, was registered, and the investigation was conducted. 4. During the course of investigation, the complainant, was got medico-legally examined. The Medical Officer, who conducted her medico-legal examination, vide report PB/1, opined that the possibility of sexual intercourse with the complainant could not be ruled out. The Investigating Officer Assistant Sub Inspector Manphool Singh, inspected the place of occurrence, and prepared the rough site plan PJ. On the basis of the site plan, scaled site plan PF, was prepared. The Medical Officer, who conducted her medico-legal examination, vide report PB/1, opined that the possibility of sexual intercourse with the complainant could not be ruled out. The Investigating Officer Assistant Sub Inspector Manphool Singh, inspected the place of occurrence, and prepared the rough site plan PJ. On the basis of the site plan, scaled site plan PF, was prepared. The underwear of the complainant, was taken into possession, vide recovery memo PC. Besides this, two vials, containing vaginal swabs, one vial, containing pubic hair, sample of the seal used, and salwar of the complainant, were also taken into possession, from the Medical Officer, who had conducted the medico-legal examination, vide recovery memo PH. The samples, so taken, into possession, were transmitted to the Forensic Science Laboratory, Haryana Madhuban, for analysis. The accused was arrested. He was also got medico-legally examined. The Medical Officer, who had conducted his medico-legal examination, vide his report PA, opined that there was nothing to suggest that the accused was not capable of doing sexual intercourse. The statements of the witnesses were recorded. After the completion of investigation, the accused, was challaned. 5. On his appearance, in the Court of the Committing Magistrate, the accused was supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, in the Court of Sessions, charge under Section 376 of the Indian Penal Code, was framed against the accused, which was read-over and explained to him, to which he pleaded not guilty, and claimed judicial trial. 6. The prosecution, in support of its case, examined Dr. Pardeep Chauhan, Medical Officer, Government Hospital, Palwal (PW1), Dr. Neeraj Chauhan, Medical Officer, General Hospital, Palwal (PW2), Constable Jai Kishan (PW3), Surjeet Kumar (PW4), Constable Shiv Charan (PW5), Constable Ashwani Kumar (PW6), the prosecutrix-cum-complainant (PW7), Khem Chand, eye-witness (PW8), Constable Ashok Kumar (PW9), and Assistant Sub Inspector Manphool Singh, Investigating Officer (PW10). Thereafter, the Public Prosecutor, for the State, closed the prosecution evidence. 7. The statement of the accused under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him, that there were two grocery shops, in the village. One shop was being run by the husband of the complainant-prosecutrix, whereas the other, was being run, by his younger brother. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him, that there were two grocery shops, in the village. One shop was being run by the husband of the complainant-prosecutrix, whereas the other, was being run, by his younger brother. The accused also used to sit at the shop of his brother. Both the shops were located almost opposite to each other. Occasionally the brother of the accused used to make purchases for various items for both the shops from Palwal. The husband of the prosecutrix also used to reciprocate the same. A long standing dispute had been going on, between the father-in-law of the prosecutrix, and the brother of the accused. It was further stated by him, that the father­in-law of the prosecutrix wrongly demanded a sum of Rs. 15000/-, from him, and his brother, as outstanding amount. On this account, a Panchayat, prior to the registration of the case, and also after the registration of the case, was convened, in the village, and the father-in­law of the prosecutrix demanded the same amount of Rs. 15000/-, for which he told that the expenses incurred and the sum given to the Police was included. They refused to make such payment, because nothing was due against him, or his brother. The father-in-law of the complainant wanted to obtain Rs15000/-, for the settlement of this case also, for which they denied. It was further stated by him, that, on account of this reason, he had been falsely implicated, in the instant case. The accused also examined Budh Ram (DW1), in his defence. Thereafter, the accused, closed his defence evidence. 8. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above. 9. Feeling aggrieved, the instant appeal, was filed by the appellant. 10. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 11. The Counsel for the appellant, at the very outset, submitted that the statement of the prosecutrix (name not being disclosed, in view of the pronouncement of the Apex Court), besides being unreliable was not corroborated through any other evidence and, as such, the trial Court, was wrong, in placing reliance, on the same, to record conviction and award sentence. 11. The Counsel for the appellant, at the very outset, submitted that the statement of the prosecutrix (name not being disclosed, in view of the pronouncement of the Apex Court), besides being unreliable was not corroborated through any other evidence and, as such, the trial Court, was wrong, in placing reliance, on the same, to record conviction and award sentence. The submission of the Counsel for the appellant, in this regard, appears to be correct. It is proved from the statement of the prosecutrix, while appearing as PW7, that she was a married lady, aged about 19 years, at the relevant time. No doubt, the prosecutrix stated, in her examination-in-chief, that when she had gone to answer the call of the nature, outside her house, the accused all of a sudden caught hold of her arm and put one hand on her mouth, and committed rape with her. She further stated that after the accused committed sexual intercourse with her, she raised an alarm, which attracted Khem Chand, and Itbari. It is, no doubt, true that, in each and every case, it is not necessary that corroboration to the statement of the prosecutrix should be required. It also cannot be said that, in every case, the statement of the prosecutrix should be taken as a gospel truth. Normally, it is presumed, that no girl or a married lady would level a false allegation of rape, or other sexual offence, against the accused, by putting her honour, and character, at stake, but it cannot be applied universally. Each case has to be determined, on factual matrix thereof. Similar principle of law was laid down in Pandurang Sitaram Bhagwat Vs. State of Maharashtra, 2005(1) RCR Crl. 859 (S.C.) So in the present scenario, prevailing in our society, it could not be completely ruled out, that a young girl, or a woman, would, in no case, raise false allegations of rape, against the accused. Each case depends on its own facts and circumstances. In the instant case, when the statement of the prosecutrix, is scrutinized, in context with the other evidence produced, on record, then only one and one inescapable conclusion, that can be arrived at, is that, the same was neither reliable nor trustworthy. The prosecutrix, being a married lady, could certainly put up the stiffest resistance, to prevent the accused, from committing sexual intercourse with her forcibly. The prosecutrix, being a married lady, could certainly put up the stiffest resistance, to prevent the accused, from committing sexual intercourse with her forcibly. In that process, she would have certainly sustained injuries. However, Dr. Neeraj Chauhan, PW2, stated that no sign of external injury was seen, on the body of the prosecutrix. Even no injury was seen on her vagina. The occurrence, took place, at about 9.30 PM, on 03.10.95, whereas, the prosecutrix was medico­ legally examined on 04.10.95, at 12 noon. The first information report, was got registered, on 04.10.95, at about 10.15 AM i.e. after a period of more than 12 hours. No broken bangles of the prosecutrix were found, at the spot. The clothes of the prosecutrix were not torrn, at the time of the alleged commission of rape, with her, by the accused. As per the report, exhibit PD, of the Forensic Science Laboratory, the semen, could not be detected, on the swabs, hair, salwar, and underwear of the prosecutrix. It was not the case of the prosecution, that the prosecutrix changed the salwar, and the underwear, which she was wearing, at the time of the alleged commission of rape with her. Dr. Neeraj Chauhan, PW2, stated during the course of cross-examination, that the prosecutrix was habitual to sexual intercourse. She further stated that, in her opinion, the possibility of commission of recent sexual intercourse with the prosecutrix, could not be ruled out. Since the prosecutrix was a married lady, and the first information report, was got registered, after a period of more than 12 hours, of the alleged occurrence, she could have sexual intercourse with her husband, in the interval. The opinion of the doctor, that the possibility of recent sexual intercourse with the prosecutrix, could not be ruled out, therefore, did not at all, in any way, go to prove, that it was the accused, who committed sexual intercourse, with the prosecutrix. Even the prosecutrix, in her statement, stated that the salwar, which was worn by her, was stained with semen. In case, the salwar, which was worn, at the time of the alleged commission of the rape with her, was stained with semen, and she did not change the same, then why the semen was not found on the same, as per the report PD, of the Forensic Science Laboratory. In case, the salwar, which was worn, at the time of the alleged commission of the rape with her, was stained with semen, and she did not change the same, then why the semen was not found on the same, as per the report PD, of the Forensic Science Laboratory. It also indicates that no sexual intercourse was committed by the accused with her. It is, no doubt, true that non-existence of semen, on the clothes and swabs of the prosecutrix, and non-existence of injuries, on her person, in every case, could not be said to be the sole determinative factor, to come to the conclusion, that no sexual intercourse was committed with the prosecutrix. However, in the instant case, non-existence of semen, on the clothes of the prosecutrix, non-existence of injuries, on her person, non-existence of broken bangles, at the spot, non-existence of the hair of the accused, on the private parts of the body of the prosecutrix and non-existence of any tear, on the clothes of the prosecutrix, which she was wearing, at the time of the alleged occurrence indicated that the occurrence, did not take place, in the manner, as deposed to, by her. In Bibhishan Vs. State of Maharashtra, 2007(4) RCR (Criminal) 469 the prosecutrix was habituated to intercourse. The evidence of the doctor was that there was no injury, on the body of the prosecutrix. There was neither any semen, on the private parts of the body of the prosecutrix, nor her clothes were tom, nor there was presence of hair of the accused, on the private parts of the body of the prosecutrix, nor any injury on the person of the accused, was found, in existence, as in the present case. Under these circumstances, the Apex Court, accepted the appeal, and recorded the acquittal of the accused. Taylor in “Principles and Practice Medical Jurisprudence Volume II” while dealing with the cases of rape, on a grown up and an experienced girl, observed as follows: “(Unless under the influence of drink or drugs or asleep or ill, a fully grown girl or adult woman should be able to resist a sex assault. We should expect to find evidence of a struggle to avoid sexual contact or penetration, and may well feel uncertainly about the real nature of an alleged assault in its absence. We should expect to find evidence of a struggle to avoid sexual contact or penetration, and may well feel uncertainly about the real nature of an alleged assault in its absence. A false accusation of rape may sometimes be exposed by marks of violence being wholly inadequate or absent. Bruises upon the arms or the neck may be considered to constitute some evidence of a struggle; and impressions of finger nails are also significant. Bruises or scratches about the inner side of the thighs and knees may be inflicted during attempts to abduct the legs forcibly, and care must also be taken to examine the back, for the victim may have been pinned against the wall or floor. It is important to record these in detail, and to say, if possible, how fresh they are. The aging of bruises, is, as was indicated in Volume I, a matter of some uncertainly in the absence of microscopy. Strong corroborative evidence of a struggle might be obtained from an examination of the accused, for similar marks of bruises or scratches about the arms or face, and possibly evidence about his penis, though this is less likely. “ In Partap Misra Vs. State of Orissa (AIR 1977 S.C. 1307), the accused were acquitted of the charge of the commission of offence of rape, when the marks of scratches or injuries, were not found on the person of the accused and the prosecutrix. In the present case, as stated above, all the factors and indicators, as were prevalent in Bibhishan’s and Pratap Misra’s cases (supra), were present, which led the Apex Court to disbelieve the evidence of the prosecutrix, doubt the case of the prosecution, and record ultimate acquittal. The trial Court failed to take into consideration the aforesaid circumstances, factors and indicators, while scrutinizing the evidence of the prosecutrix, and, thus, fell into a grave error, in recording conviction. 12. According to the prosecutrix, Khem Chand, and Itbari, were attracted to the spot when she raised alarm. Khem Chand, PW8, stated that he was talking to Itbari, at about 9.30 PM, as he met him, on the road, leading to Palwal. In the meanwhile, they heard the noise of the prosecutrix, coming from the side of Periwal Rice Mill. He further stated that when they went in the direction of the noise, they found the prosecutrix, coming from that side. In the meanwhile, they heard the noise of the prosecutrix, coming from the side of Periwal Rice Mill. He further stated that when they went in the direction of the noise, they found the prosecutrix, coming from that side. He further stated that they found the accused fleeing from spot. He further stated that the prosecutrix told them that the accused had committed rape with her, by the side of stacks of bricks. However, the prosecutrix while appearing as, PW7, did not state even a single word, that she told Khem Chand, and Itbari, that the accused had committed rape with her. Had she told Khem Chand, and Itbari, that rape was committed with her by the accused, she would have certainly deposed so, in the Court. It means that no occurrence, took place. The statement of Khem Chand, PW8, that the prosecutrix told them that the accused had committed rape with her, therefore, could not be relied upon. Khem Chand, during the course of cross-examination stated that they did not see the accused, committing rape with the prosecutrix, but had seen merely fleeing him from there. He further stated that they did not chase the accused, as he had covered a distance of one killa. He further stated that they had seen the accused from a distance of 20 ft. and, thereafter, they got busy in talking to the prosecutrix. Khem Chand, is called as uncle (Chacha), by the husband of the prosecutrix. In the first instance, it was darkness, and there was no source of light, at the spot. Under these circumstances, it was not possible for Khem Chand, to identify the accused, from a distance of 20 ft. in such darkness. Secondly, even if, he had seen the accused fleeing, he being the relative of the prosecutrix, would have certainly chased him alongwith Itbari, so as to apprehend him, at the spot, but he and Itbari, felt completely unconcerned, as if nothing had happened, and continued talking with each other. This all goes to show that Khem Chand, was not present, near the spot, nor was attracted to the spot, on hearing the alleged alarm of the prosecutrix, but was introduced later on, in the story, so as to give it a natural tinge. This all goes to show that Khem Chand, was not present, near the spot, nor was attracted to the spot, on hearing the alleged alarm of the prosecutrix, but was introduced later on, in the story, so as to give it a natural tinge. The statement of Khem Chand, therefore, could not be said to be reliable and the trial Court, was wrong, in acting upon the same. The net result, is that, the statement of the prosecutrix was neither corroborated by the medical evidence, nor by the report exhibit PD, of the Forensic Science Laboratory, nor by the statement of Khem Chand, nor by any other circumstantial evidence. The trial Court, was, thus, wrong in giving credence to the statement of the prosecutrix, and Khem Chand, to come to the conclusion, that the accused committed the offence. 13. Even Itbari, another important witness, related to the prosecutrix, was not examined by the prosecution. He was neither given up, as unnecessary, nor as won over. It is, no doubt, true that, the Public Prosecutor, for the State, is not required to examine each and every witness of the occurrence. Yet it was his duty, to produce, in the Court, the material witnesses, whose evidence was necessary to unfold the prosecution story. The evidence of Itbari, who allegedly saw the accused running away, after the alleged commission of rape with the prosecutrix, was very vital, and necessary for the just decision of the case. Had he been given up, as won over by the accused, or being unnecessary, the matter would have been different. Since he was neither given up, as won over, by the accused, nor as unnecessary, it could be said that he was not intentionally and deliberately examined, so as to bring the truth to the surface. In Masalti Vs. State of U.P. AIR 1965 SC 202, it was held that it is, undoubtedly, the duty of the prosecution to lay before the Court, all material witnesses, available to it, whose evidence is necessary for unfolding its case, but it would be unsound to lay down it, as a general rule, that every witness must be examined, even though his evidence, may not be material, or even if, it is known that he/she has been won over or terrorized. The principle of law laid down in Masalti’s case (supra) is fully applicable to the instant case. The principle of law laid down in Masalti’s case (supra) is fully applicable to the instant case. Non-examination of Itbari, a prosecution witness, must prove fatal to the case of the prosecution. The findings of the trial Court holding the accused guilty of the offence, being perverse, are set-aside, and the submission of the Counsel for the appellant, is accepted. 14. In view of the above discussion, it is held that the judgement of conviction, and the order of sentence, are not based on the correct appreciation of evidence, and law, on the point. The trial Court, did not take into consideration the aforesaid infirmities, and lacunae, in the prosecution case. The appreciation of the evidence of the prosecution, by the trial Court, could not be said to be correct. Since the judgement of conviction, and the order of sentence, are not based on the correct appreciation of evidence, and law, on the point, the same warrant interference, and are liable to be set-aside. 15. For the reasons recorded above, the appeal, is accepted. The judgement of conviction, and the order of sentence, rendered by the trial Court, are set-aside. The appellant, shall stand acquitted of the charge, framed against him. In case, the appellant, is on bail, he shall stand discharged of his bail bonds. If he is in custody, he shall be set at liberty, at once, if not required, in any other case. The Chief Judicial Magistrate, is directed to comply with the judgement promptly, in accordance with the provisions of law. --------------------