JUDGMENT 1. This appeal has been preferred against the judgment dated 7.3.1990 passed by First Additional Sessions Judge, Chhindwara in S.T. No. 29/88 whereby the appellant and co-accused Munna (since deceased) were convicted and sentenced as under:- No. & Name of the appellant/co-convict Convicted under Sections sentences to 1. Ravi 363 of the IPC undergo RI for 5 years 376 of the IPC undergo RI for 7 years with the direction that j ail sentences shall run consecutively 2. Munna 376 of the IPC undergo RI for 7 years 2. It is relevant to note that this appeal was heard and decided by another Bench of this Court on 4.8.2003. Consequently, the convictions were maintained but sentences of imprisonment were reduced to the periods already undergone by the appellant and co-convict Munna. However, the Apex Court, vide Its order dated 6.1.2010 passed in Criminal Appeal No. 31/2010, set aside this Court's judgment and remanded the matter for consideration afresh on its own merits uninfluenced by the observation, if any, made in the order. 3. The appeal so far as it relates to co-convict Munna (hereinafter preferred to as 'Munna' only) has already abated consequent to his death during pendency of this appeal preferred by the State before the Supreme Court. 4. The prosecution story, in short, may be narrated thus :- (i) The appellant is related as Nandoi (husband of sister-in-law) of the prosecutrix (PW-8), a married girl aged about 16 years. At the relevant point of time, they were residing in Village Sukludhana to which Munna also belonged to. (ii) On 12.9.1987 at about 10 p.m. the appellant persuaded the prosecutrix, who was carrying pregenancy of 6 months, to accompany to live as mistress of Munna. As they reached Narsinghpur Naka (Outpost), Munna also joined and all of them went to Village Lahgadwa where they stayed at the house of a woman belonging to Gond Tribe, who also prepared meals for them. In the night, the appellant and Munna made the prosecutrix to drink illicitly distilled liquor and after taking the food at about 3 a.m., they took her to a nearby agricultural field located on a hillock. In the night, the appellant and Munna made the prosecutrix to drink illicitly distilled liquor and after taking the food at about 3 a.m., they took her to a nearby agricultural field located on a hillock. At about 4 in the morning, the appellant caught hold of her whereas Munna, brandishing a knife, threatened to kill her in case she raised any alarm and then, both of them subjected the prosecutrix to rape one after the other on as many as three occasions. She was brought back to the Naka and was left there. Out of fear, she did not disclose the incident to anyone. However, on the following day, she was taken by her husband namely Guddu @ Ramla to Lahgadwa where his cousin Hari Singh who had spotted her as well as both the accused in the field, informed him accordingly. At this juncture only, the prosecutrix revealed the incident to her husband. He, in turn, took her to the Police Station. It was upon an FIR (Exh. P-12) that a case under section 376 read with section 34 of the IPC was registered. (iii) The prosecutrix was sent to District Hospital, Chhindwara for medical• examination. Dr. Mrs. Pratibha Sthapak (PW 5), while expressing her inability to give any definite opinion as to commission of rape, prepared two slides from vaginal smear of the prosecutrix and also preserved her petticoat for chemical analysis. The medical expert further referred the prosecutrix to the Radiologist for determination of her age. In the Ossification Test, Dr. R.C.Verma, (PW 6) found that the age of the prosecutrix was about 16 years. (iv) After their arrest on 15.9.1987, underwears worn by the appellant and Munna were seized. They were also subjected to medical examination. Dr. S.K. Bindra (PW 7) found each of them capable of performance sexual intercourse. The medical expert also prepared semen slides and preserved the same for chemical examination. 5. On being charged with the offences punishable under sections 363 and. 376 read with section 34 of the IPC, the appellant pleaded false implication. 6. In her Chief Examination, although the prosecutrix (PW 8) admitted that Munna was not known to her, yet in Paragraph 6 of her statement, she clearly stated that each one of the accused viz., the appellant as well as Munna had subjected her to sexual assaults one after the other. 6. In her Chief Examination, although the prosecutrix (PW 8) admitted that Munna was not known to her, yet in Paragraph 6 of her statement, she clearly stated that each one of the accused viz., the appellant as well as Munna had subjected her to sexual assaults one after the other. However, in her cross-examination, defence could elicit the following inconsistencies with reference to recitals of FIR (Exh. P- I 2) and contents of her case diary statement (Exh. D-1): - (i) As per her statement on oath, the prosecutrix used to go with sister of the appellant to work as labour and on the day of the incident, on being informed that his sister had already left for Dharam Tekdi where the work was going on, she had agreed to accompany the appellant up to the site whereas the FIR and the case diary statement scribed by Sub-Inspector K.C. Chhadi (PW 12) contained a specific assertion that she had gone with the appellant to enter into marital relationship with Munna as per the customs. (ii) According to the prosecutrix, it was the appellant who had put her in fear of death by showing a knife whereas the FIR and the police statement reflected that the knife was brandished by Munna only. (iii) The FIR and the case diary statement clearly suggested that each one of the accused had ravished the prosecutrix thrice whereas before the Court, she was emphatic in deposing that she was raped twice by each one of the offenders. 7. It is well settled that in a rape case, corroboration cannot not be insisted upon, except from the medical evidence, provided that the evidence of victim does not suffer from any basic infirmity and the 'probabilities factor' does not render it unworthy of credence (Bharwada Bhaginbhai Hirjibhai v. State of Gujrat, AIR 1983 SC 753 referred to.) However, in the instant case, there is no medical or forensic evidence to support the specific allegation made by the prosecutrix that she was subjected to rape by each one of the accused on two occasions in quick succession one after the other. Dr. Smt. Pratibha Sthapak (PW 5) clearly admitted that no external or internal injury/bleeding was noticed on the body of the prosecutrix who was carrying pregnancy of 6 months. Dr. Smt. Pratibha Sthapak (PW 5) clearly admitted that no external or internal injury/bleeding was noticed on the body of the prosecutrix who was carrying pregnancy of 6 months. Further, the FSL report indicated that no seminal stain or human spermatozoa was found on her vaginal smer slide and petticoat preserved by the lady doctor. All this evidence gave rise to the inference that the story of gang rape was not convincing. The approach that a married woman would not 'put her character at stake' by making a false charge of rape cannot be applied universally as each case has to be determined on the touchstone of the factual matrix thereof (Pandurang Sitaram Bhagvat v. State of Maharashtra, AIR 2005 SC 643 relied on.) 8. Since, the prosecutrix had given a materially different version in her sworn testimony, it could not have found formed a basis for the impugned conviction of rape (See: Narayan @ Naran v. State of Rajasthan, 2007 AIR SCW 2732 and Radhu v. State of M.P., 2007 AIR SCW 5845). 9. Coming to the offence of kidnapping, it may be observed that the prosecutrix did not examine the husband of the prosecutrix, viz., Ramla, his cousin Hari and the Gond woman, who could prove the facts relating to absence of the prosecutrix from her matrimonial home and her presence in the company of the appellant. 10. For these reasons, it was not possible to act upon testimony of the prosecutrix. Since the probabilities factors favoured the defence, the appellant was entitled to benefit of doubt. Thus, learned trial Judge, completely misdirected himself in holding the appellant guilty of the offences charged with, by taking recourse to conjectures and surmises to explain the glaring infirmities in the prosecution evidence. 11. In the result, the appeal is allowed. The impugned convictions and the consequent sentences are hereby set aside. Instead, the appellant is acquitted of the offences. 12. The appellant Ravi is in custody. He shall be released forthwith if not required in any other case.