JUDGMENT This appeal is directed against the appellant's conviction, by the learned Additional Sessions Judge, Pune, for the offence punishable under Section 376 of the Indian Penal Code and sentence of rigorous imprisonment for 7 years with fine oH.300/or in default rigorous imprisonment for 9 months, imposed upon the appellant on conclusion of Sessions Case No. 316 of 1993, before him. 2. Facts which are material for deciding this appeal are as under;- The victim had been deserted by her husband about two months before the incident. She was residing initially after desertion in the house of one Pralhad Tulshiram Farande, uncle of the appellant and had left the house about 8 days before the incident. She had shifted to a room in chawl of one Vitthal Walke. In the night she used to be accompanied by a 7 year old daughter of her friend Nirmalabai Pawar, who was residing at some distance from her chawl. On the night of 22nd March, 1992, at about 8.00 p.m. when she was proceeding to the house of Nirmala, in front of Hotel Purnima she was lifted by a bunch of boys and taken to a room in Nivrutti Walke Chawl. She was gang raped by four persons there. They left the victim in the room and went away. The victim went to the house of her friend Nirmala and asked Nirniala's daughter to accompany her to police Station. The appellant is alleged to have said to the victim that she did not want the appellant's company but had enjoyed with four others and therefore, she may now give a report against those persons. On the report of victim, police registered an offence and seized the victim's clothes. The appellant was rounded up at about 4.00 a.m. and his clothes were also seized. The other accused persons were also arrested. The victim had been sent for medical examination. The clothes of the accused person as well as victim were sent to the Forensic Science Laboratory. The articles seized on the spot while drawing spot panchnama were also sent to the Laboratory. The police recorded statement of witnesses and on completion of investigation, sent a charge-sheet to the Court of learned Judicial Magistrate First class, who committed the case to the Court of Sessions. 3. The articles seized on the spot while drawing spot panchnama were also sent to the Laboratory. The police recorded statement of witnesses and on completion of investigation, sent a charge-sheet to the Court of learned Judicial Magistrate First class, who committed the case to the Court of Sessions. 3. The learned Additional Sessions Judge to whom the case was made over, charged the appellant and three other accused persons of offence under Sections 366, 376 (2)(g) of the Indian penal Code. Since they pleaded not guilty, they were put on trial at which the prosecution examined in all 7 witnesses in its attempt to bring home the guilt of the appellant and the other accused persons. 4. After considering the prosecution evidence in the light of defence of false implication, the learned Judge acquitted the three accused persons of all the offences for which they were charged. He also acquitted the appellant of offence under Section 366 of the Indian Penal Code, but convicted and sentenced the appellant for offence under Section 376 of the Indian Penal Code as aforementioned. Aggrieved thereby the appellant is before this Court. 5. I have heard learned counsel for the appellant and the learned Additional Public Prosecutor for the State. With the help of both, I have gone through the evidence on record. 6. The victim, who was examined as P.W. 1, proved her report at Exh.21. She stated about her desertion by her husband about two months before the incident as also about her residing in the house of uncle of the appellant till about 8 days before the incident. She denied that she was driven out of the house of uncle of the appellant and that the appellant took part in throwing her out of that house. She then stated about some boys standing in front of Pumima Hotel, lifting her up, carried her as if a dead body, to a room in a wada. She stated that in that room, one of the miscreant caught her hands, another caught her head and then one by one all committed rape upon her. She stated that she had been gagged through out. She stated that after fulfilling their lust, the miscreants left. She does not state to have raised any hue and cry. She stated that in that room, one of the miscreant caught her hands, another caught her head and then one by one all committed rape upon her. She stated that she had been gagged through out. She stated that after fulfilling their lust, the miscreants left. She does not state to have raised any hue and cry. She claimed that she went to the house of her friend Nirmala, who has not been examined, and took her daughter for giving a report to police station. She stated about instigation by the appellant by asking the victim to name the four rapists to the police. She then stated about her medical examination, seizure of clothes, participation in test identification parade and identification of appellant and accused No.2 at the T.I. parade. Before the Court, she only identified the appellant and accused No.2. She stated that the appellant had been brought by the police when she has been in the hospital. It may be mentioned here that in the F.I.R. at Exh.21, she had named the appellant. In the course of her cross examination, she was hesitant to acknowledge that she knew Bhikubai, but then admitted that Bhikubai was the mother of her erstwhile landlord Pralhad Parande, and that the appellant was nephew of said Pralhad. She admitted that Pumima Hotel is a busy hotel and there is barber shop in front of that hotel. She stated that the hotel is located on the high-way going to Alandi. Since she had stated about participation of five persons in her examination-in-chief, she was cross examination on that aspect and she admitted that this was not mentioned in the report. Curiously there was a suggestion in cross examination by the appellant about her menstruation and she denied the suggestion that at the time of incident, her menses had started. 7. P.W. 2 Special Judicial Magistrate Kamlakar Adhav stated having held test identification parade at which one of the panchas Namdeo Laxman More, examined as P.W.4, was present. In that parade the victim identified the appellant and the accused No.2 Avinash. He proved the memorandum of T.I. parade at Exh.25. P.W. 4 Namdeo, however, did not utter a single word about his being panch at the test identification parade. In that parade the victim identified the appellant and the accused No.2 Avinash. He proved the memorandum of T.I. parade at Exh.25. P.W. 4 Namdeo, however, did not utter a single word about his being panch at the test identification parade. The learned Additional Public Prosecutor incharge of the case also did not feel it necessary to ask Namdeo about his having been a panch at the test identification parade. 8. P.W. 3 Dr. Sunita Lalwani had examined the victim and did not find any marks of injuries on the victim. She stated that it was difficult to opine as to whether forcible sexual intercourse had taken place or not. She had noticed bleeding per vagina. Learned counsel for the appellant submits that it may be this finding which led to question in cross examination of the victim about her menstruation. P.W. 4 Namdeo is curiously panch of panchnama held at 4.55 a.m. on 23rd March, 1992, another panchnama conducted on the same morning and a third panchnama conducted at 3.00 p.m. on the same day. He also stated that he was again called on 28th March, 1992 for seizure of clothes of accused. He was supposed to be panch at the test identification parade, but omitted to state anything about his having witnessed the parade. 9. P.W. 5 Madhukar Sathe is panch at the seizure of clothes of the victim vide Exh. 35. He, however, stated that the clothes were already seized when he was called. P.W. 6 ASI Raghunath Pokale, had received victim's report at 1.30 a.m. on 23rd March, 1992 and conducted part of investigation, including arrest of the appellant and seizure of appellant's clothes. P.W.7 PSI Gautam Deshmukh conducted remaining part of the investigation. He stated that he had sent the property seized to the Forensic Science Laboratory and received the report which is at exh.44. The report shows that the victim's saree and petty coat had semen stains, while petty coat had also stains of blood group "A". Semen stains on the saree gave reaction for both "A" as well as "B" blood group whereas petty coat revealed semen stain of "O", B" and "A" blood groups. The underwear of appellant had been seized and sent to the Laboratory also had semen stain of blood group "A". 10. Semen stains on the saree gave reaction for both "A" as well as "B" blood group whereas petty coat revealed semen stain of "O", B" and "A" blood groups. The underwear of appellant had been seized and sent to the Laboratory also had semen stain of blood group "A". 10. Learned counsel for the appellant submits that the learned trial Judge should not have held the appellant guilty on the type of evidence tendered before him. He submits first that the victim had not at all stated that the appellant was one of the perpetrator of the rape. He submits that if the victim already knew the appellant, there should been no reason for the victim to state that the appellant was one of the person who had raped her among the four others who had taken her to a room in Nivrutti Walke Chawl. He submitted that the story of the victim is incredible since the victim claims that she was picked up at 8.00 p.m. from the spot in front of a busy hotel as a busy road and taken to a room in a wada where there are several other inmates and yet nobody had noticed the victim being carried away. He submits that if the learned Judge disbelieved the evidence about victim's abduction there was no reason for the learned Judge to believe the evidence in respect of rape. He further submits that since learned trial judge had refused to believe the victim on the complicity of other accused persons, there was no reason to single out the appellant. 11. Learned APP submitted the spot was in the village, though in front of a hotel. He submits that at 8.00 p.m. it may be possible that there was indeed none to notice the victim being taken away. He submitted that since the victim was gagged and there was no question of her being able to raise cries or attract attention of others. In any case according to him the place where the victim was taken was sparsely inhabited as the family members of Walke family had gone to attend a marriage in their field. He submitted that since the victim was gagged and there was no question of her being able to raise cries or attract attention of others. In any case according to him the place where the victim was taken was sparsely inhabited as the family members of Walke family had gone to attend a marriage in their field. Yet it is indeed incredible that none noticed such incident occurred and it is more incredible that after the incident the victim did not raise any cries but chose to walk to the house of her friend Nirmala without first going to the police station. 12. Learned counsel for the appellant submits that the conduct of the victim in going to the house of Nirmala first creates some suspicion, but, what she further states is rather difficult to believe. He submits that after reporting to her friend about gang rape and also telling her friend about her hesitance to approach the police alone normally, Nirmala the friend should have accompanied the victim to police station. But she allowed the victim to be accompanied by her 7 year old daughter for reporting the matter to police. This is indeed difficult to believe. Therefore, according to learned counsel for the appellant, it is possible that the victim was, as usual, taking her friend's daughter to give her company at her own room and on the way, was met by the appellant, who teased her about her allowing four others to have sex with her, leading the victim to give report to the police. 13. Learned counsel for the appellant submitted that it is not that the victim stated that the appellant had taunted the victim about victim's discouraging the appellant and going alongwith four others, while rape was being committed. This part of narration comes after she picked up Nirmala's daughter and was proceeding towards the police station. Learned counsel submitted that if the appellant was the person who met the victim when the victim was on the way to give report, and since victim already knew the appellant, and since the incident occurred in the month of March at about 8.00 p.m. victim would not have been required to identify the appellant by his voice as she claims to have done. He submitted that victim was allegedly gagged when she was carried to a room, but not blindfolded. He submitted that victim was allegedly gagged when she was carried to a room, but not blindfolded. Therefore, she could have seen the appellant and others who took her to the Wada or chawl. 14. The Learned Additional Public Prosecutor submitted that the appellant's presence with the victim when the incident took place is clearly indicated by the fact that on behalf of appellant a suggestion was given to the victim about her menses starting at the time of incident He submitted that this was not possible if the appellant was not present Learned counsel for the appellant submitted that cross examination by a lawyer based upon the material in the charge-sheet need not lead to inference that it was the appellant who had given instructions to the lawyer that the victim was in her menses at the time of incident He submitted that the advocate must have found out this information from the evidence of P.W. 3 Dr. Sunita Lalwani and so one indiscrete question by a lawyer in the course of cross examination should not lead to condemnation of the appellant Learned counsel next submits that the suggestion in the cross examination is not an admission which would indicate the appellant's complicity. The learned APP submitted that if the theory propounded by the defence about taunting by the appellant to the victim while on the way from her friend's house, is accepted as correct, still it does not answer question as to how the appellant knew that the victim had sex with other four persons. Learned APP submitted that if the victim's words that the appellant had taunted her on her way to give report against those four persons is to be accepted, then the appellant's knowledge about the sexual assault must also be presumed, which would not be possible without the appellant's participation therein. 15. Learned counsel for the appellant submitted that it is not necessary that the appellant must have participated in the assault for getting knowledge of what happened with the victim and four other persons. He submitted that the taunting reported by the victim itself shows that the appellant is alleged to have said that the victim repelled the appellant but had sex with other four persons, which would rule out appellant having sex with the victim. 16. He submitted that the taunting reported by the victim itself shows that the appellant is alleged to have said that the victim repelled the appellant but had sex with other four persons, which would rule out appellant having sex with the victim. 16. Learned Additional Public Prosecutor next submitted that the contention of the learned counsel for the appellant about the appellant's being falsely implicated is ruled out by the report of the Forensic Science Laboratory at Exh.41 which shows semen stains of blood group "A" on the victim's clothes as also on the underwear of the appellant. Learned counsel for the appellant submitted first, that the semen stains of blood group "A" found on the victim's clothes are ambivalent inasmuch as Analyst observes that stains gave reaction for both "A" as well as "O" groups. He next submitted that it is incredible that the victim and the appellant surrendered their clothes in the police station on the night of 23rd March, 1992, without having a change of clothes. It is nowhere to be seen in the prosecution evidence that the victim or the appellant had changed their clothes and clothes which they were wearing were then seized. It is not that the victim's case that she had gone to her home and changed her clothes and that it is too much to expect to come prepared for all sorts of seizures that the police like to make while going to the police station to give report. Therefore, learned counsel for the appellant submits that on the slender evidence of finding of semen stains of blood group "A" on the victim's as well as appellant's clothes, appellant could not have been held guilty. He submits that the evidence of P.W. 5 Madhukar about the seizure of victim's clothes shows that the clothes were already seized before witness was called. P.W. 4 Namdedo, panch at the seizure of clothes of appellant could not state as to which clothes were seized from which persons. 17. Considering this, it appears probable that the victim had wrongly roped in the appellant first, because the appellant was the nephew of her erstwhile landlord whose house she had to vacate about 8 days before the incident, and secondly, because the appellant taunted the victim about her thwarting the appellant while accepting company of others. 17. Considering this, it appears probable that the victim had wrongly roped in the appellant first, because the appellant was the nephew of her erstwhile landlord whose house she had to vacate about 8 days before the incident, and secondly, because the appellant taunted the victim about her thwarting the appellant while accepting company of others. It may be useful to note that the victim had initially tried to state that she had nothing to do with the appellant's relations. In her cross examination she stated that she did not know Bhikubai Tulshiram Parande, but then accepted that Bhikubai was the mother of Pralhad Prande who was her erstwhile landlord and the uncle of the appellant Rajendra. This attempt of suppressing facts would cast doubt about the veracity of the witnesses. In any case, as pointed out by the learned counsel for the appellant if the victim did know the appellant there was no reason for her not to categorically state that the appellant was one of the rapists rather than suggesting in report at exh.21 that she came to know that the appellant was one of the rapist because of words which the appellant uttered. Even those words are also taken into consideration, they do not indicate that the appellant would be rapist but would indicate the appellant taunted the victim for thwarting himself while accepting the company of others. Considering this the possibility of the appellant having been falsely implicated cannot be ruled out. The benefit thereof must go to the appellant. 18. Appeal is, therefore, allowed. The conviction of the appellant for the offence punishable under Section 376 of the Indian Penal Code and sentence of rigorous imprisonment for 7 years with fine of Rs.300/- or in default rigorous imprisonment for 9 months, is set aside. The appellant is acquitted of the said charge. Appeal allowed.