JUDGMENT 1. - This criminal appeal has been filed against the judgment and order dated 29.5.2009 of the learned Additional Disstt. Judge, Nathdwara, Distt. Rajsamand convicting the accused-appellant Fateh Singh for offence under Section 376 I.P.C. and imposing sentence of 5 years' R.I. and a fine of Rs. 1,000/- and in default of payment of fine to further undergo 1 month's R.I. The accused is said to be in custody since 1.6.2007. 2. The factual matrix of the case is like this. On 25.5.2007 at about 8 P.M. in the night, the complainant Kailash Kunwar W/o Sh. Raju Singh lodged an F.I.R. to the effect that on 22.5.2007 at about 9 P.M. in the night, when she was going to her house from the house of her sister-in-law Smt. Mithu. The accused appellant Fateh Singh who was brother-in-law (Devar) of complainant's sister-in-law (Nanad) Sint. Mithu and her own brother-in-law (Devar) Bhopal Singh found her on her way to home and they forcibly took her in the nearby agricultural field and committed rape upon her and after committing the said crime, the accused-appellant Fateh Singh ran away and Bhopal Singh started beating her and upon her crying, the relatives who were in the residential houses situated in the same area nearby came at the spot and on account of beating, she got unconscious and recovered from unconsciousness at around 3 A.M. after mid night and thereupon she told about the said crime to her sister Rekha and sister-in-law Mithu Kanwar. 3. After investigation, challan was filed against the present appellant by the police while no challan was filed against the other accused Bhopal Singh under Sections 376, 341 and 323 I.P.C. and the case was committed for trial. 4. After framing of the charges, the learned trial Court examined 18 witnesses including the prosecutrix herself as PW-6, her sister Rekha as PW-7, father Hari Singh as PW-3 and Dr. Nagendra Pal as PW-11. However, some of the witnesses named by the prosecution in the list of witnesses like Smt. Pawan Kumar, Smt. Dhapu Kunwar, Smt. Shobha Kunwar, Smt. Lehar Kunwar, Raju Singh, Bheru Lal and Chhagan Lal were not produced during the trial. 5. In the statement recorded under Section 313 Cr.P.C. the accused-appellant denied the prosecution story and pleaded innocence. 6. The learned trial Court considering the evidence and material before it convicted and sentenced the accused-appellant as aforesaid. 7. 5. In the statement recorded under Section 313 Cr.P.C. the accused-appellant denied the prosecution story and pleaded innocence. 6. The learned trial Court considering the evidence and material before it convicted and sentenced the accused-appellant as aforesaid. 7. Mr. Shambhoo Singh, learned counsel appearing for the appellant urged that the accused-appellant has been falsely implicated in the said case under Section 376 I.P.C. whereas co-accused Bhopal Singh, Devar of the prosecutrix has been deliberately left out by the Investigating Agency even though the complainant prosecutrix Kailash Kunwar had named him in the F.I.R. as well as her statement recorded by the learned Magistrate under Section 164 Cr.P.C. on 31.5.2007 itself and for mysterious reason, no challan was filed against the said co-accused Bhopal Singh and thus, the entire case of the prosecution against the present accused-appellant also becomes doubtful. He relied upon the decision of Hon'ble Apex Court in case of Rangaiah v. State of Karnataka, reported in (2008) 16 SCC 737 in support of his submission. 8. The learned counsel for the appellant also read before the Court the statements of prosecutrix-complainant Smt. Kailash Kunwar (PW-6) and submitted that from the statement of prosecutrix herself, it appears that it was with her consent that this incident happened and when the accused persons and she were caught on the spot, she started raising hue and cry and upon being beaten up by her relatives after 3 days of the incident, the said F.I.R. was lodged against the two accused persons, who were close relatives of the complainant herself and for unknown reasons, the prosecution filed challan only against one of the accused persons; present appellant Fateh Singh and important witnesses who were available on the site on the date of incident were also deliberately not produced by the prosecution before the learned trial Court and thus, raising a serious doubt over the offence being proved beyond reasonable doubt by the prosecution, the learned counsel for the appellant submitted that the accused appellant deserves to be given benefit of doubt and acquitted in the present case. 9. 9. The learned counsel for the appellant also submitted that in the cross-examination, the complainant PW-6 Kailash Kunwar has admitted that she did not suffer any injury on her private parts and she started crying and raised alarm only after she was beaten up by one of the co-accused Bhopal Singh, her brother-in-law, not while the said crime was being allegedly committed by these two accused persons. PW-7 Rekha Kunwar, real sister of the complainant has also stated before the learned trial Court that when her sister Kailash Kunwar went to her residence from the resident of Mithu Kanwar, where both of them had gone around 7 P.M., and for getting certain article from their own house since the complainant Kailash Kunwar did not return for considerable time, then she started to follow up her and when they heard cries of her sister Kailash Kunwar, they ran towards the said agricultural field, where they found that the accused appellant Fateh Singh had already run away and Bhopal Singh was beating her sister and Nobat Singh, husband of Mithu Kanwar also gave some beating to the complainant Kailash Kunwar and after two days when their father Hari Singh PW-1 came from the village, they lodged the said F.I.R. (Ex.P-4). The said PW-7 Rekha Kunwar is the wife of Bhopal Singh, another co-accused against whom no challan was filed by the prosecution. 10. The Investigating Officer PW-18 Chand Mal also in his cross-examination has stated that even though there was reference to co-accused Bhopal Singh in the F.I.R. and in the statement recorded under Sections 161 and 164 Cr.P.C. of the complainant Kailash Kunwar, but she in her said statement has not alleged the crime of rape against the said co-accused Bhopal Singh and she might have taken her name on account of fear being thrown out of the matrimonial home. He did not find any articles at the site, whereas the complainant PW-6 Kailash Kunwar in her statement has stated Ex.P-2 her broken bangles and clips were also seized, but why it was not mentioned in the seizure memo is not known to her. Even she had stated that she used to wear underwear, which was also not seized as per the statement of said I.O. PW-18 Chand Mal. Even she had stated that she used to wear underwear, which was also not seized as per the statement of said I.O. PW-18 Chand Mal. Thus, the learned counsel for the appellant submitted that the entire prosecution story is incredible and the offence cannot be said to have been proved beyond reasonable doubt and the petitioner deserves to be acquitted. 11. On the other hand, the learned Public Prosecutor supported the impugned judgment and conviction of the accused appellant and submitted that after the investigation if the police found that the offence was not committed by the named co-accused Bhopal Singh and not filing of challan against him does not render the prosecution case against the present appellant false and since forcible sexual intercourse has been proved beyond reasonable doubt by the medical evidence, therefore, the conviction and sentence deserves to be upheld by this Court. 12. Having heard the learned counsel and upon perusal of the impugned judgment and the evidence on record, this Court is satisfied that the appeal filed by the present appellant deserves to be allowed and he deserves to be acquitted of the said offence. 13. The Hon'ble Supreme Court in the case of Ratigaiah (supra) in paras 22 and 23 has held as under : "22. The fact that the incident took place is not in dispute. What is in dispute is the manner in which the same took place and whether the appellant had participated therein. It was not the prosecution case that the appellant was on inimical terms with the deceased or his family. Two groups of residents of the same village had been quarrelling with each other. An incident took place within a day prior to the date of occurrence. Police personnel were posted. A police van was also stationed. If the prosecution case is to be believed, two constables were standing near the place of occurrence. It is beyond any body's comprehension as to why when one group of people were chasing another group of people they did not intervene and why despite a police van being stationed, the deceased should have been shifted in the hospital in an auto rickshaw. The place of occurrence also is not fixed. According to the prosecution witness, deceased had gone out of his house to take a cup of tea near the hotel of PW-13 Mahadeva. The place of occurrence also is not fixed. According to the prosecution witness, deceased had gone out of his house to take a cup of tea near the hotel of PW-13 Mahadeva. PW-13, however, said that he closed his shop at 7.00 a.m. Why more than two hours' time was taken for getting a cup of tea for the deceased is again beyond any body's comprehension. Whereas according to the dying declaration the deceased was sitting on a pial of his house, where the incident is said to have taken place; according to PWs-1 and 6, the place of occurrence was near the 'Garadimane'. 23. Both in the F.I.R. as also in the dying declaration, the name of Rachimallaiah was already stated but no charge sheet was filed against him. No explanation has been offered as to why he was not charge-sheeted. No explanation has also been offered as to why the dying declaration could not be recorded by a Judicial Officer. The doctor on the basis of whose certificate, PW-23 - Investigating Officer recorded the dying declaration, was not examined. At the time of recording of the dying declaration, the deceased was surrounded by his own people. Veracity of the said statement, therefore, cannot be said completely beyond doubt." 14. The effect of not impleading the co-accused Bhopal Singh named by the complainant particularly in an offence under Section 376 I.P.C. without any cogent reason creates a doubt on the prosecution version against other co-accused present appellant Fateh Singh also. The prosecution has not come out with any cogent reason as to why the co-accused Bhopal Singh was let off in the present case even though the complainant had been throughout naming Bhopal Singh and categorically stated in her statement under Section 164 Cr.P.C. before the learned Magistrate and also before the trial Court in her statement recorded on a later date that said Bhopal Singh had first committed crime of rape against her before the present appellant Fateh Singh. Despite this, not filing any charge-sheet and letting off the co-accused Bhopal Singh creates a serious doubt over the credibility of prosecution case against the present accused appellant also. Despite this, not filing any charge-sheet and letting off the co-accused Bhopal Singh creates a serious doubt over the credibility of prosecution case against the present accused appellant also. There are inconsistencies in the statements of PW-6 complainant and PW-18 I.O. Chand Mal also and non-recovery of broken bangles and clips or undergarment from the site and the complainant raising hue and cry only after a lapse of much of time after she was beaten by Bhopal Singh and Nobat Singh and not during the alleged commission of crime raises serious doubt on her own version. Thus, it appears to this Court a case of consent on the part of the complainant herself and when she was seen on the spot in the objectionable condition by her relatives, she might have cooked up the said story of rape against the said two persons, one of whom was even let off by the police and no challan was filed against the said accused person Bhopal Singh. The present appellant Fateh Singh was not even caught on spot and was apprehended only later on on 30.5.2007. PW-11 Dr. Nagendra Pal who examined the accused appellant Fateh Singh on 30.5.2007 also was stated in his cross-examination that no samples of semen of accused appellant were taken at the time arrest on 30.5.2007 and thus no grouping or matching of semen found on the cloths of the complainant was done. No FSL report is there on the record showing any such matching. 15. Thus, this Court is of the opinion that the conviction of the accused-appellant for the said offence under Section 376 I.P.C. cannot be sustained and he deserves to be acquitted. 16. Consequently, this appeal is allowed and the impugned judgment of the learned trial Court dated 29.5.2009 is set aside and the accused appellant is acquitted of the said offence under Section 376 I.P.C. The accused appellant Fateh Singh S/o Sh. Gulab Singh be released forthwith if not required in any other case.Appeal allowed. *******