Judgment : 1. The appellant feels aggrieved by the judgment and order passed by the learned Special Judge, Khamgaon on 21st May, 2012 in Special Atrocity Case No.3/2011. The appellant was tried for the offences punishable under Sections 376, 323, 506 and 343 of the Indian Penal Code and Section 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. 2. The prosecutrix and the appellant, both were residents of same village i.e. Paturda in Tahsil Sangrampur of District Buldhana. The appellant was very well known to the prosecutrix. The prosecutrix was staying with her parents. It is the case of prosecution that she belongs to a Matang community. She had a friend by name Ms. Sharda residing in the same village. Ms. Sharda had gone to Indore about eight days prior to the date of incident. One Deokabai Gawai was neighbour of the prosecutrix. The appellant was frequently visiting the house of said Deokabai Gawai. 3. The alleged incident had occurred on 3rd December, 2010. The prosecutrix had come out of her house at about 900 p.m. to answer call of the nature. She met the appellant. The appellant told the prosecutrix that her friend Ms. Sharda had come back from Indore and that she wanted to meet the prosecutrix. The prosecutrix, therefore, accompanied the appellant to visit house of Ms. Sharda. It is alleged that the appellant instead of taking the prosecutrix to the house of Ms. Sharda, took her to a cattle-shed situated near the house of said Ms. Sharda. The prosecutrix was told by the appellant that Ms. Sharda would come there to meet her. It is the case of prosecution that the prosecutrix did not want to wait in the cattle-shed to meet Ms. Sharda and, therefore, she attempted to go back to her house. It is alleged that the appellant caught hold of the prosecutrix and slapped her. He pushed her on a heap of fodder and threatened her that she would be killed if she shouted. Thereafter the appellant had allegedly removed clothes of prosecutrix and had forcible sexual intercourse with the prosecutrix without her consent. It is alleged that the appellant put tin sheets and wooden logs on the prosecutrix after committing rape on her and did not allow her to go. It is alleged that there was small ditch below the tin sheets. Thereafter the appellant had allegedly removed clothes of prosecutrix and had forcible sexual intercourse with the prosecutrix without her consent. It is alleged that the appellant put tin sheets and wooden logs on the prosecutrix after committing rape on her and did not allow her to go. It is alleged that there was small ditch below the tin sheets. The prosecutrix remained there till next night. The appellant had allegedly again visited the cattle-shed around same time in the night on next day and had brought meals and water for the prosecutrix. She was forcibly made to eat and thereafter was subjected to rape again by the appellant. The appellant had again put tin sheets and wooden logs upon the ditch and left the place. On third day morning Shri Gajanan Rahate, who was owner of the cattle-shed, had opened the said cattle-shed. It is at that time that the prosecutrix escaped from the said cattle-shed. It is the case of prosecution that the prosecutrix wanted to commit suicide because she was afraid that her family may strongly react due to her absence for two days. However, she was persuaded by Atul and Shankar residents of same village that she should not take such extreme step. She was taken to her residence by Atul and Shankar. The prosecutrix had thereafter visited Paturda Police Station along with her mother and had lodged report Exh.38. 4. After registration of offence, she was sent for medical examination. The Medical Officer Dr. Vaishali Bodhankar had, on examination, found that there was a linear abrasion over right infra mammary region and two linear abrasions on left thigh. No injury was found anywhere over labia majora or labia minora. Hymen had old tear. Nothing else was detected as abnormal. The Medical Officer was unable to give definite opinion as to whether she was subjected to sexual intercourse. 5. During the course of investigation, panchanama of the spot was drawn in presence of P.W.2. Statements of parents of P.W.1 were recorded and after completion of investigation, chargesheet was filed in the court. 6. During the course of trial, a charge for the offences punishable under Sections 323, 343, 506 and 376 of the Indian Penal Code and Section 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was framed. The appellant had pleaded not guilty and had claimed to be tried. 7. 6. During the course of trial, a charge for the offences punishable under Sections 323, 343, 506 and 376 of the Indian Penal Code and Section 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was framed. The appellant had pleaded not guilty and had claimed to be tried. 7. The prosecution had examined seven witnesses in support of its case. P.W.3-Pushpabai More is mother of the prosecutrix P.W.1-Sangita and P.W.5-Baburao More is father of P.W.1-Sangita. Both of them had stated that P.W.1-Sangita had gone out to answer the call of nature and had not returned and therefore, they had reported the matter to police. It is further stated by them that P.W.1-Sangita had returned home after three days at about 8.30 a.m. and that she had narrated the incident to them. Thereafter the report was lodged at Police Station. 8. P.W.2-Mir Kurban Ali is the panch witness who had visited the spot of alleged incident along with police. It was a cattle-shed of Shri Rahate. It appears from the evidence of this witness that nothing incriminating was seized from the spot. Spot panchanama was drawn at Exh.41. 9. P.W.4-Dr. Vaishali Bodhankar had found following injuries on the person of P.W.1 when she was examined on 6-12-2010 at Saibai Mote Hospital, Shegaon. i) A linear abrasion over right infra mammary region of 1.5 cm. in size, ii) Two linear abrasions on left thigh of 3 cm. x 1 cm. in size. P.W.4-Dr. Vaishali Bodhankar had also found that there was no injury anywhere over labia majora and labia minora. No evidence of any injury was noticed on vaginal wall though the hymen was found torn. It was a old tear. This witness was not able to give any definite opinion about penetration. 10. P.W.6-Jibhau Pawar had recorded First Information Report of P.W.1-Sangita at about 300 p.m. on 6th December, 2010 and had visited the spot. He had prepared panchanama Exh.41. It was seen that there was a small ditch in the cattle-shed and tin sheets were found kept or found lying on the said ditch. There is nothing else in the evidence of this witness which needs mention in the present judgment. 11. He had prepared panchanama Exh.41. It was seen that there was a small ditch in the cattle-shed and tin sheets were found kept or found lying on the said ditch. There is nothing else in the evidence of this witness which needs mention in the present judgment. 11. P.W.7-Chintaman Shirole is the Sub-Divisional Police Officer who took further investigation in view of the alleged offence punishable under Section 3(1) (xi) of the Scheduled Casts and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. 12. After having gone through the evidence of all the witnesses, it is absolutely clear that the whole case is based on the evidence of P.W.1-Sangita. Before I proceed to evaluate the evidence of P.W.1-Sangita, what is necessary to be stated here is that the prosecution had not examined Shri Gajanan Rahate, owner of the cattle-shed, who had opened the cattle-shed on the day when P.W.1-Sangita had escaped from the cattle-shed. The prosecution had also not examined two witnesses, Atul and Shankar who prevented P.W.1-Sangita from committing suicide. It is not necessary to be mentioned that the law does not require corroboration to the testimony of prosecutrix to sustain conviction for the offence punishable under Section 376 of the Indian Penal Code. It is also well settled that prosecutrix is not an accomplice. Despite this, the evidence of P.W.1-Sangita has to be evaluated broadly keeping in mind that three important witnesses have not been examined by the prosecution. It, therefore, follows that it is necessary to examine as to what is the effect on the prosecution case of non-examination of these three witnesses. 13. If one examines the evidence of P.W.1-Sangita, it can be seen that the prosecutrix had remained in the cattle-shed for more than 48 hours in the ditch below the tin sheets covered by wooden logs. If the evidence of panch witness and police officer is carefully examined, it can be seen that neither the panch witness nor the police officer has stated anything to indicate that there were large number of tin sheets and heap of wooden logs, which could have been used by the appellant to detain the prosecutrix in the ditch below the tin sheets and wooden logs. There is no material on the record to show that had the prosecutrix remained in the condition described by her in her evidence, she could have escaped without sustaining any major injuries. 14. There is no material on the record to show that had the prosecutrix remained in the condition described by her in her evidence, she could have escaped without sustaining any major injuries. 14. P.W.1-Sangita has stated in her evidence that she was taken to cattle-shed by the appellant on the pretext that friend of P.W.1-Sangita, Ms. Sharda wanted to meet her. It is further stated by P.W.1-Sangita that the appellant had forcible sexual intercourse with her and thereafter he had placed tin sheets and wooden logs so that P.W. 1-Sangita did not escape from the cattle-shed. The appellant had again visited the cattle-shed around the same time i.e. 9-00 p.m. on next date and had removed tin sheets and wooden logs. He had brought some eatable for P.W.1-Sangita. After forcing her to eat something, he had again sexual intercourse with P.W.1-Sangita. The appellant left the spot after committing rape on P.W.1-Sangita on next day also. He had again placed tin sheets and wooden logs upon the ditch before leaving the cattle-shed. P.W.1-Sangita has stated that on third day she herself had removed wooden logs and tin sheets and had concealed herself behind a heap of cattle food. She had seen Gajanan Rahate opening the cattle-shed. It appears from her evidence that she escaped from the cattle-shed when it was opened by Gajanan Rahate. At this stage, it is necessary to be stated that Gajanan Rahate has not been examined. P.W.1-Sangita has not described as to how could she escape from the cattle-shed without being noticed by Gajanan Rahate. The injuries found on the person of P.W.1-Sangita do not indicate that any force was applied on her. The injuries also do not indicate that she had directly come into contact with the tin sheets and wooden logs. The panch witness and police officer do not describe as to how deep the ditch was. It is, therefore, not possible to ascertain as to whether it was possible for P.W.1-Santiga to remain in the ditch without being hurt and further was it possible for her to remove tin sheets and wooden logs on her own. It is also not explained by the P.W.1-Sangita that as to why could she not do the same thing which she could do on the third day. It is also not explained by the P.W.1-Sangita that as to why could she not do the same thing which she could do on the third day. If she could remove the tin sheets and wooden logs on the third day, why could she not do the same immediately after the appellant left her on the very first day. This gives clear impression that P.W.1-Sangita remained in the cattle-shed concealing herself voluntarily. It is also equally possible that she had no other option except to file a police complaint as she might have been seen by Gajanan Rahate. 15. The conduct of P.W.1-Sangita does not permit me to place reliance on her evidence. As already stated, though conviction for the offence punishable under Section 376 of the Indian Penal Code is permissible to be based on sole testimony of the prosecutrix, it is equally necessary to be borne in mind that in such a case conduct of the prosecutrix is of great importance and court has to be very careful while examining the evidence in such cases. The Hon'ble Supreme Court while taking note of conduct of the prosecutrix in a case of VimalSuresh Kamble .vs. Chaluverapinake Apal S.P. and another reported at 2003 Cri.L.J. 910 has staid as under:- “19. Respondent No.1 in his examination under S. 313, Cr.P.C. stated that the case had been fabricated only to extort money. He was a resident of the State of Karnataka and that is why P.W.4 Manohar Sawant, a Shivsena leader, supported the prosecutrix. A false case had been lodged against him. On 25th April, 1992 the prosecutrix had asked him for some money but he refused to pay her saying that her salary had already been paid by his wife. On 26th April, 1992 she again came to him and again demanded money which is refused. She threatened him saying that if he did not give her money, he will have to face the consequences. In sum and substance, the defence of respondent No.1 appears to be that no such occurrence took place at all and a false case had been filed to extort money from respondent No.1 who was a Government employee. 20. In cross-examination P.W.1 (prosecutrix) asserted that she was determined to lodge a complaint. In sum and substance, the defence of respondent No.1 appears to be that no such occurrence took place at all and a false case had been filed to extort money from respondent No.1 who was a Government employee. 20. In cross-examination P.W.1 (prosecutrix) asserted that she was determined to lodge a complaint. She also knew that taking bath would cause disappearance of the evidence of rape and yet she took a bath as she was feeling dirty. Thereafter she went to sleep. 21. On an overall appreciation of the evidence of the prosecutrix and her conduct we have come to the conclusion that P.W.1 is not a reliable witness. We, therefore, concur with the view of the High Court that a conviction cannot be safely based upon the evidence of the prosecutrix alone. It is no doubt true that in law the conviction of an accused on the basis of the testimony of the prosecutrix alone is permissible, but that is in a case where the evidence of the prosecutirx inspires confidence and appears to be natural and truthful. The evidence of the prosecutrix in this case is not of such quality, and there is no other evidence on record which may even lend some assurance, short of corroboration that she is making a truthful statement. We, therefore, find no reason to disagree with the finding of the High Court in an appeal against acquittal. The view taken by the High Court is a possible, reasonable view of the evidence on record and, therefore, warrants no interference. This appeal is dismissed.” 16. In the present case also, withholding of evidence of three important witnesses and conduct of P.W.1-Sangita make the case of prosecution highly doubtful. In my considered opinion, the evidence of P.W.1-Sangita is not reliable. It was absolutely unsafe on the part of the learned trial Judge to base conviction of the appellant on the evidence of such unreliable witness. In the result, the appeal succeeds and I pass the following order. The appeal is allowed. The judgment and order dated 21-05-2012 of Special Judge, Khamgaon in Special Atrocity Case No.3/2011 is set aside. The appellant is acquitted of the offences punishable under Sections 376, 323, 343 and 506 of the Indian Penal Code. He shall be released from prison if not required in any other case. Fine amount, if any, paid by him, shall be refunded to him. The appellant is acquitted of the offences punishable under Sections 376, 323, 343 and 506 of the Indian Penal Code. He shall be released from prison if not required in any other case. Fine amount, if any, paid by him, shall be refunded to him. The Appeal stands disposed of accordingly. APPA No.100/2013 In view of the final disposal of Appeal No.261/2012, the Application does not survive. The same is accordingly disposed off.