1. Registration of the case as crime no. 288 of 2001, Police Station, Katra, culminated in presenting the charge sheet (Challan) against the accused for having committed the offences punishable under Sections 452 & 376 R.P.C. The trial culminated in conviction as a result thereof the accused has been sentenced to undergo imprisonment of three years and fine of Rupees one thousand for the commission of offence under Section 452 R.P.C and to undergo rigorous imprisonment for ten years and fine of Rupees five thousand for the commission of offence punishable under Section 376 R.P.C. 2. The contentions of the learned counsel for the appellant are as under:- 1. That the ocular and medical evidence is inconsistent; 2. Non-examination of the Investigating Officer has caused prejudice; 3. Sole testimony of the prosecutrix without corroboration in the given facts and circumstances can’t form basis for conviction; and 4. The evidence has not been properly appreciated. 3. In opposition learned counsel for the respondents highlighted that a shocking crime has been committed, which has been proved beyond doubt. The judgment recording conviction and sentence is quite appropriate and does not suffer from any illegality. 4. For proper determination of the contentions as raised, precise noticing of factual matrix is indispensable. 5. The prosecutrix had been residing with her husband for the last one and half years as on the date of occurrence at Darshani Gate, Katra, where her husband possess a shop in the ground floor and upstairs in the first floor, a living room. On 8th of December’ 2001, allegedly when she went upstairs from the shop to the room, started preparing meals, accused entered in, bolted the door from inside, caught hold of her and pulled her down on to the bed, after breaking the cord of her trouser, had intercourse with her against the will. After committing the rape when accused came out of the room, mother of the prosecutrix and others were present outside, but he ran away. 6. The mother of the prosecutrix also used to live there in the town itself, but since husband of the prosecutrix had gone to Delhi in connection with purchase of goods for the shop, therefore, used to sleep with her during night and also used to come to her during day time in order to know her well being. 7. 6. The mother of the prosecutrix also used to live there in the town itself, but since husband of the prosecutrix had gone to Delhi in connection with purchase of goods for the shop, therefore, used to sleep with her during night and also used to come to her during day time in order to know her well being. 7. When the accused came out of the room, the mother of the prosecutrix entered and found the prosecutrix lying on the bed and her trouser brought down to the ankle level and it is she who then tied her trouser. After doing so, while thinking over the matter, both prosecutrix and her mother reported the matter to the police at about 15.30 hours on 8th of December’ 2001. On completion of investigation of the case, charge sheet has been presented and the trial court framed charge against the accused to the following effect. "That on 8th of December’ 2001, accused entered the residential room of the prosecutrix and forcibly against the will of the prosecutrix committed intercourse with her. Therefore, has committed the offence punishable under Section 452 & 376 of R.P.C." 8. Out of listed six prosecution witnesses only three witnesses have been examined i.e., the prosecutrix, PW Vijay Kumar (Brother of the prosecutrix) and Doctor Umesh Gandotra. Witness Shanti (mother) of the prosecutrix died, so was not examined and other two witnesses were not produced. 9. Accused while examined under Section 342 Cr.P.C has denied complicity in the crime and has added that in fact he was working on the photography shop located in front of the shop of the prosecutrix. The prosecutrix and her husband at times used to tell him to work with them, which he refused as a result thereof he has been implicated in the case. In defence, one witness has been examined. 10. The Trial Court has recorded the conviction on the sole testimony of the prosecutrix, which though permissible but however every case has to be dealt with in the background of its own facts and circumstances. 11. The prosecutrix in her deposition has testified to the effect that her husband on the date of occurrence was not available as he had gone for purchase of goods to Delhi. At about 10 am on the date of occurrence she went upstairs in her room. 11. The prosecutrix in her deposition has testified to the effect that her husband on the date of occurrence was not available as he had gone for purchase of goods to Delhi. At about 10 am on the date of occurrence she went upstairs in her room. She was preparing the food, when accused entered in and bolted the door, caught her hand and did put her on the bed and committed the wrong with her. Though she tried to save herself, but being ill could not do anything. But then her mother came and did put on her clothes and raised alarm, took her to the police station. The contents of the F.I.R as are read over to her are correct. In the report before the police, she had stated that at about 10.30 am to 11.00 am she was preparing food in her room. In the meantime, accused entered in and did put her on the bed and committed rape on her. She raised alarm, but no one was available. When the accused after committing rape ran away, outside there was her mother and some people present, she felt ashamed. 12. The important circumstance which emerges for consideration is as to whether the prosecutrix has been subjected to intercourse, if yes, whether against her will. In this connection it is to be noticed that the prosecutrix was examined by the Board of Doctors, who have recorded the opinion to the following effect:- "OPINION:-From above findings of vaginal smear, no definite opinion can be given regarding recent sexual inter-course." 13. This opinion has been recorded when on examination it was noticed that no mark of violence or injury on private parts was found. Hymen torn, old tears were present, vagina admitted two fingers easily, no fresh laceration, no bleeding P/V. So according to the medical opinion, there was no mark of violence or injury on the private parts, old tears were present and the opinion of the Doctors is categoric to the effect that no definite opinion can be given regarding recent sexual intercourse. Therefore, the said opinion would suggest that there is inconsistency, because on the one hand prosecutrix claims to have been sexually assaulted when the medical opinion says that no definite opinion can be given regarding recent sexual intercourse. 14. P.W Dr. Umesh Gandotra has proved the contents of the medical opinion. Therefore, the said opinion would suggest that there is inconsistency, because on the one hand prosecutrix claims to have been sexually assaulted when the medical opinion says that no definite opinion can be given regarding recent sexual intercourse. 14. P.W Dr. Umesh Gandotra has proved the contents of the medical opinion. Now, who is to be believed, prosecutrix or the medical opinion? In the said situation accused is entitled to benefit of doubt. In this connection, it shall be apt to quote para-6 of the judgment rendered by the Hon’ble Apex Court in Bibhishan v. State of Maharashtra, (2008) 3 SCC (Cri.) 163. "6. 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 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 appellant-accused. The accused who has been charged under Section 376 read with Section 511 IPC is entitled to benefit of doubt." 15. The circumstance that the mother of prosecutrix used to come to prosecutrix for sleeping there with her during nights in view of the absence of her husband, who had gone to Delhi in connection with business and then occasional visit of mother of prosecutrix to prosecutrix during the day time, gives rise to another situation i.e., when according to prosecutrix the accused went out of the room her mother and some people were there. Who were those people, have not been nominated nor cited as witnesses and the situation as to where her mother was when the accused came out of the room. The visit of mother of prosecutrix at such a time when the accused had entered into the room and was coming out, gives rise to serious doubts about forcible sexual intercourse least the intercourse. 16. The mother of prosecutrix has died during pendence of the case so has remained to be examined. The visit of mother of prosecutrix at such a time when the accused had entered into the room and was coming out, gives rise to serious doubts about forcible sexual intercourse least the intercourse. 16. The mother of prosecutrix has died during pendence of the case so has remained to be examined. In such a situation examination of the Investigating Officer as a witness was of great essence. Non-examination thereof has affected the rights of the defence as by examination of the Investigating Officer it would have come to the light as along with the mother of the prosecutrix, who were the other persons present there when the prosecutrix in her deposition has made it clear that her mother and some other persons were present outside when accused came out of the room. Why those persons were not cited as witnesses also gives rise to a doubtful situation about commission of crime. 17. Non-examination of the Investigating Officer in all situations can not be said to be fatal, but when the non-examination causes serious prejudice to the accused, then same is fatal. As noticed above in the instant case, non-examination of the Investigating Officer has deprived the accused from eliciting the actual position about the presence of mother of the prosecutrix and other persons. 18. The story as projected in prosecution case does not fit in with normal human conduct, so as to inspire confidence to hold that the accused has committed the crime. The prosecutrix has not suffered any injury nor there was any mark of violence on the private parts of her body, though she has tried to explain that she could not resist because of her ailment. What was that ailment? Is that she had delivered a baby one year prior to the occurrence and said baby had died? It no where surfaces in her deposition that she had any such ailment on the date of occurrence, which would render her helpless to resist against the alleged act of the accused. This position also gives rise to suspicion. Under such circumstances, the sole testimony of the prosecutrix cannot be made basis for conviction. It no where surfaces in her deposition that she had any such ailment on the date of occurrence, which would render her helpless to resist against the alleged act of the accused. This position also gives rise to suspicion. Under such circumstances, the sole testimony of the prosecutrix cannot be made basis for conviction. Inconsistency in the medical evidence and testimony of the prosecutrix coupled with the non examination of the Investigating Officer or of the persons who were said to be present but not cited as witnesses and even their names have not been ascertained despite mention made by the prosecutrix, creates serious doubts. 19. The star witness i.e., mother of the prosecutrix died, then another star witness under such circumstances was the Investigating Officer, who has not been examined. Brother of the prosecutrix PW Vijay Kumar has been produced and examined but his testimony is of no help as according to him, he had left in connection with his work by the morning and reached back by evening and was told by his mother that the accused had committed rape upon the prosecutrix. So, he is not the witness to the occurrence. It is he who has stated that the husband of the prosecutrix had gone to Delhi. There was no other person in his house, therefore, his mother in absence of husband of prosecutrix was looking after her and had added that on the raising of alarm by the prosecutrix, her mother had entered into the room where accused had raped the prosecutrix. 20. The act of consented intercourse in effect is not a penal offence but is a challenge to morality. The person who indulge in such activity have to be strictly dealt with while on proof of the commission of the offence of rape awarding of exemplary punishment shall be in keeping with the heinousness of the crime of rape. 21. The Court cannot afford to be swayed by any situation emotionally or otherwise. The Court being the Court of law has to administer justice according to law. In Criminal Jurisprudence, before convicting an accused, the Court has to come to positive conclusion that the guilt against the accused is proved beyond doubt. This cherished principle cannot be ignored whatever the situation it may be and once the case is proved according to required standards, then the extreme exemplary punishment award-able has no substitute. 22. In Criminal Jurisprudence, before convicting an accused, the Court has to come to positive conclusion that the guilt against the accused is proved beyond doubt. This cherished principle cannot be ignored whatever the situation it may be and once the case is proved according to required standards, then the extreme exemplary punishment award-able has no substitute. 22. The learned Trial Court has not appreciated the evidence in its right direction. The mis-appreciation of the evidence relatable to the inconsistency between the medical evidence and the testimony of the prosecutrix is grave, in such circumstances normally human conduct must appear to be such, which would inspire confidence to hold that the accused by all standards has been proved to have committed the offence. When there are no mark of violence on any part of the body, non-resistance can be the only conclusion inferable. The prosecutrix has been medically examined on the day of occurrence itself. The opinion of the Doctor that on physical examination coupled with vaginal smear report, no definite opinion can be given regarding recent intercourse casts a serious doubt about the actual occurrence and renders the testimony of the prosecutrix doubtful. 23. The position of doubt is compounded by further two circumstances as is inferable i.e., either the prosecutrix has been a consenting party and having found her mother coming made the accused run away, so a theory or their has not been any intercourse at all. In view of the medical evidence when there is neither any injury nor any mark of violence and then the opinion of the Doctor that no definite opinion about recent sexual intercourse, all this suggests that the doubtful position as has crept in has not been clarified. Non-production of the Investigating Officer as a witness has also left the occurrence in the region of reasonable doubt. It would be absolutely un-safe to uphold the conviction. The judgment recording conviction and sentence in view of the doubtful position of the case is un-sustainable. Accused is awarded benefit of doubt, so is acquitted, shall be released forthwith provided he is not required in connection with in any other case. 24. Appeal succeeds and is disposed of accordingly. 25. Copy of the Judgment along with Trial Court record be sent to the Trial Court.