JUDGMENT 1. - The Additional Sessions Judge No.1, Bharatpur, by his judgment dated 13.1.1988, found the appellant guilty for the offence under Section 376 IPC and sentenced him to seven years' rigorous imprisonment and a fine of Rs. 500/-. In default of payment of fine, he was directed to undergo rigorous imprisonment for three months. Against the conviction and sentence the appellant has preferred this appeal. 2. The incident out of which this case arises, occurred on 17.1.1985. The prosecutrix Ms. Maya Kamr, who at the time of incident, was about 24 years' old, was studying Nursing Course and residing as tenant in the house of appellant's father. On 18.1.1985 at about 3:30pm she reported to Police Station Kotwali that at about 9:00pm on the preceding night, when she was studying in her room, the appellant came to her room with a tape-recorder in his hand asking her that his room socket was not working and that he wanted to check the tape-recorder in her room socket. He put the tape-recorder on full volume and latched the room from inside. When she tried to open the latch, she was pushed on the bed and the appellant, taking knife out of his 'lungi', threatened her with life and pressing her mouth with the other hand, committed rape upon her. She cried but because of high volume of tape-recorder, the neighbours could not hear. Further that while leaving, the appellant threatened her with dire consequences in case she reported or told about it to anyone. After the appellant left the room she went and informed the neighbours - Smt. Savitri Devi/PW.6 and her husband Virendra Singh/PW.5 and slept in their house. Next morning after the appellant left home, she went to lodge the report at Police Station. On her report, the case was registered and investigated. 3. Upon completion of necessary investigation, charge-sheet against the appellant was filed in the Court of area Magistrate. The learned Magistrate, founding a prima facie case exclusively triable by the Court of Sessions, committed the appellant to the Court of Additional Sessions Judge to stand his trial for the aforesaid offence. On being charge-sheeted, the appellant denied the incident and claimed to be tried. The prosecution examined eight witnesses in all to substantiate the case against the appellant. The learned Magistrate, founding a prima facie case exclusively triable by the Court of Sessions, committed the appellant to the Court of Additional Sessions Judge to stand his trial for the aforesaid offence. On being charge-sheeted, the appellant denied the incident and claimed to be tried. The prosecution examined eight witnesses in all to substantiate the case against the appellant. The appellant, in his statement under Section 313 Cr.PC, denied the allegations levelled against him and stated that the proxecutrix had rented their house four months ago and that at odd hours, she was having male visitors in the house, which was objected to by him and his father and, therefore, she has falsely implicated him. One defence witness DW.1 Ram Prasad was examined to substantiate the contention of the appellant. The learned Additional Sessions Judge placed reliance on the prosecution evidence and passed the judgment under appeal. 4. The learned counsel for appellant attacked the findings of the learned trial Judge on number of grounds. First of all his contention is that the story of the prosecution cannot be said to be probable because there was no injury mark on the body of prosecutrix. Next it was contended that she was a married woman of about 24 years of age and she could have resisted the desire of the accused causing injuries to him, which she did not. That also shows that she was a consenting party. 5. It was argued that overall circumstances of the case are also not suggestive that rape was committed on Ms. Maya Kamr by the appellant, because PW1 Maya Kamr claims to have been sexually assaulted for about half an hour but as per the medical evidence, no injury on her person was found, which according to the doctor, should have been there. 6. Another ground taken for attacking the judgment of the learned Trial Court is that the clothes worn by the prosecutrix at the time of incident, had, admittedly been washed with soapy water, therefore, the presence of semen on the petticoat and underwear of prosecutrix could not be possible. According to the doctor, the prosecutrix was used to sexual intercourse. 6. Another ground taken for attacking the judgment of the learned Trial Court is that the clothes worn by the prosecutrix at the time of incident, had, admittedly been washed with soapy water, therefore, the presence of semen on the petticoat and underwear of prosecutrix could not be possible. According to the doctor, the prosecutrix was used to sexual intercourse. He further argued that although conviction can be based on the sole testimony of prosecutrix corroborated by medical evidence and other circumstances, such as the report of chemical examination etc., if the same is found to be natural, trustworthy and worth being relied on, but in this case the medical evidence does not support her story. Even according to him, chemical report Exhibit P.7 shows human semen allegedly found on the petticoat and underwear, does not link the appellant with the crime as the appellant was neither examined for potency test nor was his semen taken. He also pointed out the infirmities in the story of the prosecution. 7. The learned Public Prosecutor, controverting those arguments, submitted that there is nothing to disbelieve the convincing evidence of the prosecutrix supported by the chemical report as also corroborated by the statements of Maharaj Singh/PW.3. According to the learned Public Prosecutor, the learned trial Judge has correctly arrived at a conclusion that she tried to raise a cry but was threatened with a knife by the appellant, shows that she was not a consenting party and, therefore, the offence under section 376 IPC was clearly made out. 8. I have heard the learned counsel for appellant as also the learned Public Prosecutor and have been taken through the evidence on record. 9. The case rests on the sole testimony of the prosecutrix Ms. Maya Kamr/PW.1. The veracity of the witness and the probability of the story shall be seen hereinafter but before coming to the same, medical examination of the prosecutrix may be looked into. 10. PW.2 Dr. Bhopal Singh, who conducted the medical examination of the prosecutrix and prepared the medical report Exhibit P.4, found no mark of injury on her body or the genitals except that she had only one redness of the size of 2cm x 2cm near the ear on right side. Her hymen was loose and there was no injury on it and one finger could easily enter inside. Her hymen was loose and there was no injury on it and one finger could easily enter inside. The vaginal swab, vaginal smear taken by the doctor, the petticoat and the underwear were sent for chemical examination. As per report, vaginal swab and smear were consumed during chemical examination and human semen was found on the petticoat and underwear. After perusal of the chemical report dated 17.04.1985 marked as Exhibit P.7, the doctor PW.2 Dr. Bhopal Singh opined in Exhibit P.6 that earlier the prosecutrix was subjected to sexual intercourse. 11. In his cross examination, PW.2 Dr. Bhopal Singh Choudhary admitted that on the date of medical examination, he did not find any signs of sexual intercourse. He also admitted to have not seized the clothes of the prosecutrix. He further stated that the sexual intercourse should have taken place fifteen days before the medical examination and as per the Medical Jurist, the prosecutrix was habituated of sexual intercourse. According to him:- " gkbeu tks <+hyk Fkk mlds vk/kkj ij dg ldrk gwa fd yM+dh lEHkksx dh vkfn jgh gksxhA ek;k dh tkap ls ;g yxk fd mlus lEHkksx ds nkSjku dksbZ izfrjks/k ugh fd;k vkSj 'kjhj dh ekal is'kh;k dks Hkh dM+d ugh fd;kA ;fn mlds }kjk ,slk fd;k x;k gksrk rks gkbeu ij pksV gksrhA ;fn vk/k ?kaVs rd yxkrkj lEHkksx fd;k tkos rks gkbeu ij pksV vkosxh & ,slk ek;k dej esa ugh FkkA " Further he stated:- " eS ugh dg ldrk fd lQZ ds ikuh esa lheu yxk diM+k Mqcks fn;k tkos rks ml ij lheu ds fpUg jgsaxs ;k lekIr gks tk;saxsA " 12. After having gone through the medical evidence and chemical examination report, I would like to briefly look into the statements of other witnesses before the testimony of the prosecutrix, as the prosecution case is based on her sole testimony, which needs to be gone into little detail. Before proceeding further, it is worthwhile to observe that as per site-plan Exhibit-P.3 prepared by the Investigating Officer Dharamveer PW.7, the place of incident is the building of appellant, consisting of many rooms, which are adjacent to each other, wherein number of tenants live. PW.1 lives as tenant in one of the rooms, whereas DW.1 Ram Prasad, PW.5 Virendra Singh and PW.6 Savitri Devi, are also tenants in adjacent rooms. PW.1 lives as tenant in one of the rooms, whereas DW.1 Ram Prasad, PW.5 Virendra Singh and PW.6 Savitri Devi, are also tenants in adjacent rooms. Ranvir Singh and family is her next door neighbour, the rooms having common wall. But none of the neighbours has supported prosecutrix story. Although according to the prosecutrix, she cried for help but because of high volume of the tape-recorder, the neighbours could not hear.DW.1 Ram Prasad, who lives in the next room, has been examined as a defence witness. PW.1 Maya Kamr admits in her statement that DW.1 Ram Prasad was present in his room at the time of incident but according to DW.1, no such incident took place in his knowledge. So far as other neighbour Shri Virendra Choudhary, PW.5 and Savitri Devi, PW.6 are concerned, they have been declared hostile and do not support the prosecution. It may be argued that these witnesses, living as tenants in appellant's house, would not take risk by deposing against their landlord's son and even otherwise, in rape cases, there cannot be any eye witnesses. The law, therefore, is settled on the issue that the conviction can be based on the sole testimony of the prosecutrix, but it has to be corroborated by other medical and chemical evidence.13. I have already discussed about the medical and chemical evidence. I find that the statements of PW.1 Maya Kamr, are not consistent. In her examination-in-chief, she has deposed that at about 9:00pm, when she was studying in her room, her landlord Gopal's son - accused Virendra Singh came to her room with a tape-recorder, asking her to let him test it in the electric socket of her room saying that it was not working in his room. She permitted him to check. Soon thereafter, the accused latched her door and threw her on the bed and taking knife out of his 'lungi' he threatened her with life and pressing her mouth, committed rape upon her. She was unconscious and after getting consciousness, she saw that the room was open and the light was off. Whereas, in her typed report Exhibit P.1, which was lodged after about 18 hours of the incident, she mentioned that after committing the sexual intercourse, while leaving her room, the appellant threatened her not to mention about the incident to anyone or to report it, else he would kill her. Whereas, in her typed report Exhibit P.1, which was lodged after about 18 hours of the incident, she mentioned that after committing the sexual intercourse, while leaving her room, the appellant threatened her not to mention about the incident to anyone or to report it, else he would kill her. Thus, on the one hand she states that the accused threatened her while leaving her room, whereas in her court statements she claims that she became unconscious and when she woke-up, she saw the light was off and her room lying open. She also admits that Ranvir and Ram Prasad are her neighbours and they live with their families in the same building. The site-plan Exhibit P.3 shows that on three sides of the chowk, there are six rooms. Room no.4 where Ranvir lives, is adjacent to the prosecutrix room, shown at no.1. All the rooms are next to each other, surrounded by the chowk, therefore, if such an incident takes place, the next door neighbour or other neighbours living in the same chowk, would have known. She also admitted in her cross-examination that she had gone to Agra with neighbour Ranvir's family but she does not disclose about the incident even to Ranvir's family. She further admitted that the appellant had also accompanied them to Agra. When confronted with Exhibit D.1, she admitted that her photograph was taken during Agra visit along with appellant, which clearly suggests that the appellant was not a stranger to the prosecutrix. Moreover, as per her statements, she took the room on rent only four months before the incident and Ranvir and family were not in acquaintance before coming to live in this rented room. Her accompanying Ranvir and family along with appellant, show that she was befriend to him.14. Admittedly, the appellant and prosecutrix both are adults and in order to hold appellant guilty of the offence of rape, the prosecution has to prove that the sexual intercourse was committed by the appellant against her will and without her consent or under threat of death or hurt. But in the case in hand, medical evidence is otherwise. So far as the prosecutrix story of threatening her with the knife is concerned, that also, in the overall circumstances of the case, does not inspire confidence.15. But in the case in hand, medical evidence is otherwise. So far as the prosecutrix story of threatening her with the knife is concerned, that also, in the overall circumstances of the case, does not inspire confidence.15. It is an established law that prosecution has to stand on its own legs and prove its case beyond reasonable doubt but in the case in hand, the location of the place of occurrence is such which is surrounded on all the three sides with rooms having common walls, situated in a chowk. It is improbable that Ranvir and his family, who are next door as also Ram Prasad and family, would not have known about the incident. Besides that, she has stated in her court statements that in the morning also, accused sitting on the staircase in the chowk, was threatening her and asked her to wash her clothes and she did put her petticoat and underwear in soapy water bucket but none from the house supports even the morning threatening. In these circumstances, even if there was sexual intercourse, the possibility of it being with consent, cannot be ruled out.16. It is settled law that in rape case, the story of prosecutrix can be relied upon even if there is no corroboration by other oral evidence, but then the story should be consistent and probable and if some other corroborating evidence is possible, then this should come out either in the form of medical corroboration or some other circumstantial corroboration. The absence of injuries on the body of prosecutrix makes out a very strong circumstance to make her story improbable. The story of the prosecution is not very consistent and probable and it is not corroborated by any other reliable evidence, so as to base the conviction of the appellant on the same.17. In my opinion, the evidence in the case, cannot be said to be sufficient to prove the guilt of the appellant beyond reasonable doubt so as to be sufficient to record his conviction for the offence under Section 376 IPC, hence his conviction cannot be sustained. The learned Trial Court has failed to appreciate admitted facts and other relevant circumstances, therefore, conviction of appellant is liable to be set aside.18. Accordingly, the appeal is allowed. The conviction and sentence of the appellant is set aside. He is on bail. His bail bonds are discharged. The learned Trial Court has failed to appreciate admitted facts and other relevant circumstances, therefore, conviction of appellant is liable to be set aside.18. Accordingly, the appeal is allowed. The conviction and sentence of the appellant is set aside. He is on bail. His bail bonds are discharged. He is directed to furnish bail bonds for a sum of Rs. 20,000/- in terms of Section 437A of the Code of Criminal Procedure, before the Trial Court. *******