JUDGMENT : R.D. Kothari, J. What is crime? This appeal raises the question. Unwed lady gave birth to a child at Civil Hospital, Chotila and that has finally led ASI to file complaint for offence under Section 376 of I.P.C. The material facts which raise above question are as under. 2. On 9.12.2007, one Bhavnaben, daughter of Jadav Khimabhai Koli, had given birth to a child. That Bhavnaben was unmarried. On making inquiry by the doctor, she alleged that one Lalabhai Dahyabhai has forcibly committed sexual intercourse with her, therefore she become pregnant. The doctor has reported this to Chotila Police Station and pursuant to that, station diary entry was made in the said police station. Pursuant to station diary entry, the police proceeded to record the statement of Bhavnaben. In her statement, she has not shown any interest in lodging the complaint against said Lalabhai Dahyabhai i.e. present accused. Ultimately, that has led police to lodge the present complaint. 3. Complaint followed by charge-sheet by police. The Additional Sessions Court, Limbdi has framed the charge for offence under Section 376(g) of I.P.C. and also for offence under Section 342 read with Section 114 of I.P.C. 4. It is material to note that charge was framed against two accused i.e. Lalabhai Dahyabhai and Vinabhai Merabhai. 5. Before the trial court, prosecution has examined all material witnesses. The prosecution has examined victim, parents of the victim, two doctors, two panchas and all concerned police personnel. The prosecution has examined 15 witnesses and has produced various documentary evidence. 6. After recording the evidence of witnesses and submissions made by learned advocates for the parties, the Court, at the end of conclusion, records that there is no reason to disbelieve the evidence of victim. The Court says that victim has no reason to falsely implicate the present accused. The Court further recorded that the victim has conceived the child because the present appellant and that the appellant has committed forcible sexual intercourse with her. It recorded the conclusion that the appellant has committed an offence under Section 376(2)(g) and also under Section 342 of I.P.C., however, it has acquitted the other accused. 7. Heard learned advocate Shri Barot for the appellant. Shri Barot has submitted that there is not even prima facie case against the present appellant. It recorded the conclusion that the appellant has committed an offence under Section 376(2)(g) and also under Section 342 of I.P.C., however, it has acquitted the other accused. 7. Heard learned advocate Shri Barot for the appellant. Shri Barot has submitted that there is not even prima facie case against the present appellant. The trial court has committed serious error of law and fact in convicting the present accused for offence under Section 376 of I.P.C. It was submitted that complaint is delayed by over 9 months. Shri Barot has submitted that present appellant is convicted for offence under Section 376(2)(g) of I.P.C. i.e. for the gang rape, while at the same time the Court has acquitted the other accused. In the opinion of the learned advocate, when a person is charged for gang rape, then conviction for such charge would be bad if there is sole accused and other co-accused are acquitted. Learned advocate for the appellant has taken through the evidence of material witnesses. 8. Heard learned A.P.P. Ms. Hansa Punani for the State for the purpose. 9. The offence of rape is established if the prosecution brings its case under any of the six descriptions given in Section 375 of I.P.C. It reads, thus; "A man is said to commit 'rape' who,. .. ., has sexual intercourse with a woman under circumstances falling under any of the six following descriptions : (i) Against her will. (ii) Without her consent. (iii) With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. (iv) With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. (v) With her consent, when at the time of giving such consent by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. (vi) With or without her consent, when she is under sixteen years of age. Explanation.--- --- ---- Exception- --- --- ----" 9.1. (vi) With or without her consent, when she is under sixteen years of age. Explanation.--- --- ---- Exception- --- --- ----" 9.1. Like the case on hand, generally, cases under Clauses (i) and (ii) i.e. cases of 'consent' on the part of girl or lady comes before the Court. Rarely, the Court is called upon to consider the case under other clauses. Consent is to be inferred from the circumstances of the each case. Every case has its own set of circumstances. Each case has its aura. The Court would try to catch that aura. Inference of consent or absence of consent is to be drawn from the circumstances of the case. Circumstances may make the path of the prosecution easier to bring home the guilt – they may facilitate the efforts of the prosecution – or the circumstances may make their job tough. It depends. What is to be bear in mind is that strained effort either in search of existence of guilt or qua inference of innocence should be avoided. In order to succeed in its case, prosecution has to bring home the guilt. The case is to be proved. 10. What is proof? In a sense, proof is antonyms to the presumption. Commission of crime cannot be presumed. The prosecution is required to bring on record commission of crime by the accused. It is to be established. In order to prove the crime, the prosecution may take aid of substantive evidence and corroborative evidence. Say of witness before the Court is considered as substantive evidence. It is the say of material witness in oral evidence – who either may be the victim or the eye witness or both – that would transform the incident into the crime. Version and impression of the victim or the eye witness about the occurrence would form the basis of the case. They would give shape to the case of prosecution. The other material on record – other than evidence of victim or the eye witness – would serve as a corroborative piece of evidence. It is the say of the witness that sieved through the cross-examination that would form the material for the Court to appreciate. In cross-examination, attempt would be to puncture the story of the prosecution by creating doubt. The defence would also advance their own version of incident in cross-examination. It is the say of the witness that sieved through the cross-examination that would form the material for the Court to appreciate. In cross-examination, attempt would be to puncture the story of the prosecution by creating doubt. The defence would also advance their own version of incident in cross-examination. The Court would appreciate the material and decide whether the say of prosecution as to commission of crime should be believed or not. 11. The major stumbling block that prosecution may encounter in their attempt to prove its case is in the form of evidence of hostile witness. It is true that now the Court does not discard the evidence just because the witness has turned hostile. Considering the circumstances of the case, the Court may proceed to consider – ignoring the fact of witness turning hostile – whether the case of prosecution is acceptable or not. In the present case, victim and her parents – material witnesses – have turned hostile. They do not support the case as advanced by the prosecution. If we consider the say of the victim, she says that on the day of incident at about 8 p.m., she was returning home from 'Atta Mill.' On her way to the home, the present accused, who was roaming after her, caught hold of her hand and took her to one place i.e. Somabhai's house. There, despite her refusal, he committed sexual intercourse and thereby, she became pregnant. She also says that Vinu (A2- before the trial court) was not there at the time nor he has abetted the present accused in commission of sexual intercourse. In her cross, she says that place of incident is thickly populated area. So, if she would have shouted, she agrees that people would have gathered. She also agrees to suggestion that at the time of incident, she has not tried to offer resistance. The mother of the victim says that her daughter had told her that she has a pregnancy through the present accused. In her cross, she says that grandfather of the accused is a resident of the village of the complainant side and accused used to come to their village. She also says that she was not knowing about the 'incident' between the victim and the present accused till the victim was admitted in the Chotila hospital. In her cross, she says that grandfather of the accused is a resident of the village of the complainant side and accused used to come to their village. She also says that she was not knowing about the 'incident' between the victim and the present accused till the victim was admitted in the Chotila hospital. The father of the victim says that he does not know about the incident, however, he came to know about it through his wife. In his cross, he agrees with the suggestion that he had told to the police that they do not want to lodge any complaint. 12. Evidence of Panchnama, Panchas, Police Personnel, F.S.L. report, except in peculiar circumstances or if special facts appears on record, these materials by themselves do not play determinative role compared to oral evidence of material witnesses. Of course, as a corroborative piece of evidence, they do play vital role. In the present case, there are no special facts or circumstances, substantive evidence itself is of such a nature that other evidence on record cannot save the case of prosecution. In this regard, special mention may be made about medical evidence. Generally speaking, though the medical evidence cannot compete with oral evidence of material witness on record – nonetheless, it stands on higher footing compare to other material. Normally, in all the cases, opinion of expert i.e. of the doctor is required in order to consider whether crime alleged by the prosecution is committed or not. Further, the medical expert is independent person and therefore also, his opinion carries weight. In the facts of the present case, medical evidence is of not much importance or consequence so far as determination of the guilt of accused is concerned. 13. For the following main reasons, the case of prosecution fails : (i) It is the say of the victim and her parents from the beginning itself that they do not want to lodge any complaint. (ii) Age of the victim is also against the prosecution. Birth date of the victim is 21.1.1988.' On the day of incident, even as per the case of prosecution, she was above 19 years of age. (iii) All material witnesses – victim and parents of the victim – have turned hostile. (iv) In her cross, victim agrees to the suggestion that she did not offer any resistance at the time of incident. (iii) All material witnesses – victim and parents of the victim – have turned hostile. (iv) In her cross, victim agrees to the suggestion that she did not offer any resistance at the time of incident. (v) Till the victim delivered the child, neither the victim nor her parents or other family members come forward and made complaint. In fact, at the time of delivery also, response of victim and her parents was very cool qua lodging of complaint – says police, nor after delivery police could solicit their consent for lodging complaint. (vi) There are other over half a dozen family members in the victim's family. They are four sisters and two brothers. Two sisters are elder to the victim. The family consists of six brothers/sisters plus their parents. They all are residing in 'one' room. How the pregnancy can be remained unnoticed by the family members till the delivery? Say of Maxwell Anderson that virginity is rather state of mind–Appears to have taken by them literally. 14. About the D.N.A. test. In the present case, result of the D.N.A. test shows that the present accused is a biological father of the child. It is true that Bhavnaben says that on the day of incident, present accused has committed forcible sexual intercourse with her. She also says that she has conceived child on account of that incident. On the other hand, at the same time she also says that she does not want to lodge any complaint against the accused nor her parents or other family members have shown any interest in lodging the complaint. What does this denial to lodge the complaint mean? It may also be noted that no case of giving threat etc. by the accused to the victim and/or to her family members against lodging of the complaint. Had such case revealed from the circumstances of the case or from the facts disclosed during the course of investigation – then, the matter would have been different. Initiation of proceeding and lodging of FIR by the police, then could be understood. In such case, say of the victim plus D.N.A. result would have landed the accused in difficulty. No such case herein. Victim has already attained age of majority. Then, it appears that after the incident, victim and her family members have conveniently forgot about the same or has ignored the same. In such case, say of the victim plus D.N.A. result would have landed the accused in difficulty. No such case herein. Victim has already attained age of majority. Then, it appears that after the incident, victim and her family members have conveniently forgot about the same or has ignored the same. Parents have audacity to say that they came to know only at the time of victim's delivery. Considering the nature of evidence–As referred above – D.N.A. test result is of hardly any importance. Result of D.N.A. is crime neutral. D.N.A. result may sum up the story of rape, it cannot tell its story. Story would be told by the witnesses. It would be erroneous to jump to the conclusion that accused has committed a rape only on the basis of D.N.A. test result. 15. Crime consists of actus reus and mens rea. Former is a physical act of a given crime and later is guilty mind. Both should co-exist. The prosecution has to establish beyond reasonable doubt that accused has committed crime as alleged against him. Here, in the present case, there is enough to doubt the assertion of prosecution as to commission of crime. The basic essential fact which would make the use of D.N.A. based result meaningful is lacking in the present case. The material on record goes to show that it is a case of consent. Consensus coitus by the adult member is not crime–At least not rape. Hence, no case under Section 375 of I.P.C. The case of prosecution, therefore, fails. 16. Crime as actus reus and mens rea can be appreciated by following two quotes; (i) In Union of India v. Ganesh Das Bhojraj's case, AIR 2000 SC 1102 (R.C. Lahoti, J., as he then was) in separate concurring judgment held in Para.24 as under : "24. Actus non facit reum, nisi mens sit rea (the intent and act must both concur to constitute the crime). The general rule is that there must be mind at fault before there can be a crime. Whether or not mens rea is an essential ingredient of an offence would depend on the object and purpose of a Statute and the phraseology employed by the Legislature in defining the offence. The general rule is that there must be mind at fault before there can be a crime. Whether or not mens rea is an essential ingredient of an offence would depend on the object and purpose of a Statute and the phraseology employed by the Legislature in defining the offence. The doctrine that mens rea is an essential ingredient in every offence has three recognised exceptions : (i) cases not criminal in any real sense but which in the public interest are prohibited under a penalty; (ii) public nuisance; and (iii) cases criminal in form but which are really only a summary mode of enforcing a civil right see Sherras v. De Rutzen, (1895) 1 QB 918, 922; also see Nathu Lal v. State of M.P., AIR 1966 SC 43 and observations of K. Subha Rao, J. in his dissenting opinion in State of Maharashtra v. Mayer Hans George, AIR 1965 SC 722 . Vide para 16 K. Subha Rao, J. has given an illustration. An aeroplane in which a person with gold on his body is travelling may have a forced landing in India and yet he would be liable to be punished with a jail term extending to two years." (ii) In R. Balakrishna Pillai v. State of Kerala, (2003) 9 SCC 700 , the Court had approvingly quoted Gaur's say that, 'no crime is committed without guilty mind. It held in Para. 43 to 45 as under : "43. To consider yet another aspect, the general principle of criminal jurisprudence is that element of mens rea and intention must accompany the culpable act or conduct of the accused. In respect of this mental element generally, the Blackstone's Criminal Practise describes it as under: "In addition to proving that the accused satisfied the definition of the actus reus of the particular crime charged, the prosecution must also prove mens rea, i.e., that the accused had the necessary mental state or degree of fault at the relevant time. Lord Hailsham of St. Marylebone said in Director of Public Prosecutions v. Morgan, (1976) AC 182 at p. 213. The beginning of wisdom in all the "mens rea" cases is as was pointed out by Stephen J. in Tolson (1889) 23 QBD 168 at P. 185, that 'mens rea' means a number of quite different things in relation to different crimes'. Marylebone said in Director of Public Prosecutions v. Morgan, (1976) AC 182 at p. 213. The beginning of wisdom in all the "mens rea" cases is as was pointed out by Stephen J. in Tolson (1889) 23 QBD 168 at P. 185, that 'mens rea' means a number of quite different things in relation to different crimes'. Thus one must turn to the definition of particular crimes to ascertain the precise mens rea required for specific offences." The author then comments: "Criminal offences vary in that some may require intention as the mens rea, some require only recklessness or some other state of mind and some are even satisfied by negligence. The variety in fact goes considerably further than this in that not only do different offences make use of different types of mental element, but also they utilise those elements in different ways." It is clear thus that the accused must have the mental state or degree of fault at the relevant time. It may of course differ from crime to crime according to the definition thereof. The matter of degrees may also differ. That is to say generally the mental state and the criminal act must coincide. The criminal act may be one which may be intended by the wrong doer. It is as well known mere intention is not punishable except when it is accompanied by an act or conduct of commission or omission on the part of the accused. As indicated earlier, situation varies in respect of different kind of crimes as in some of them even negligence or careless act may constitute an offence or there may be cases of presumptions and putting the accused to proof to the contrary. In the case in hand we have found that there is no sale of energy to M/s. GIL by KSEB nor the appellants had any say in price fixation for M/s. GIL by KEB. In the case in hand we have found that there is no sale of energy to M/s. GIL by KSEB nor the appellants had any say in price fixation for M/s. GIL by KEB. In this light we may pass on to Criminal law - J.C. Smith, Brian Hogan 8, where proposition of law is put as follows : "It is a general principle of criminal law that a person may be convicted of a crime unless the prosecution have proved beyond reasonable doubt both (a) that he caused a certain event or that responsibility is to be attributed to him for the existence of a certain state of affairs, which is forbidden by criminal law, and (b) that he had a defined state of mind in relation to the causing of the event or the existence of the state of affairs. The event, or state of affairs, is called the actus reus and the state of mind the mens rea of the crime. 44. We further find the said principle of criminal jurisprudence stated in Criminal Law by K.D. Gaur, wherein it is stated as follows : '9. Criminal Law-cases and materials, K.D. Gaur, Third Edition, p. 23 "Criminal guilt would attach to a man for violations of criminal law. However, the rule is not absolute and is subject to limitations indicated in the Latin maxim, actus non facit reum, nisi mens sit rea. It signifies that there can be no crime without a guilty mind. To make a person criminally accountable, it must be proved that an act, which is forbidden by law, has been caused by his conduct, and that the conduct was accompanied by a legally blameworthy attitude of mind. Thus, there are two components of every crime a physical element and a mental element, usually called actus reus and mens rea respectively.' 45. Glanville Williams in Criminal Law has also stated as follows in connection with the intention accompanying the act : "The chief problems in the general part of criminal law pertain to the requirement of a criminal state of mind, mens rea; but these cannot be adequately discussed without a preliminary exploration of the nature of an actus reus." It is further stated : "Although thoughts are free, the uttering of them is another matter. Speaking or writing is an act, and is capable of being treason, sedition, conspiracy or incitement; indeed, almost any crime can be committed by mere words, for it may be committed by the accused ordering an innocent agent (e.g., a child under eight) to do the act. But to constitute a criminal act there must be (as said already) something more than a mere mental resolution. Apparent, but not real, exceptions to this proposition are treason and conspiracy. It is treason to compass the King's death, but the law requires an overt act manifesting the intention; and this act must be something more than a confession of the intention. It must be an act intended to further the intention; perhaps, too, it must actually do so." 17. In view of the above discussion, prosecution case fails. The appeal is accepted. The judgment and order of conviction and sentence dated 26.11.2008 passed in Sessions Case No.23 of 2008 by the learned Additional Sessions Judge, Surendrangar, Camp at Limbdi, is hereby quashed and set aside. The appellant be set at liberty if not required in any other case. Learned advocate for the appellant points that learned trial court has directed to pay fine to the victim. Since the appeal is allowed, it was submitted that fine, if not already paid to the victim, then the same may be ordered to be returned to the present appellant. Accordingly, if the fine is not paid to the victim, the same may be returned to the appellant. However, if it is already paid to the victim, then no further action needs to be taken. Appeal allowed.