JUDGMENT 1. - In challenge is the judgment and order dated 21.09.1989/25.09.1989 passed by the learned Sessions Judge, Tonk in Sessions Case No.57/1988 convicting the appellant under sections 376 & 323 IPC and sentencing him to suffer 7 years' and 1 year's R.I. for the two offences and to pay a fine of Rs. 1,000/- each for the two convictions in default to undergo 6 months' R.I. each. 2. I have heard Mr. Deepak Soni, learned counsel for the appellant as well as Mr. Javed Choudhary, learned Public Prosecutor for the State. 3. In the FIR lodged on 12.05.1988 at about 9.45 PM at police Station Toda Raisingh, District Tonk by the prosecutrix Shanti wife of Shankar it was alleged that while she had taken her goats to a well in a Jungle at Pawaliya alongwith her sister-in-law Sita, the appellant came there and held her hand and threatened to throw her in the well. According to the prosecutrix, the appellant then outraged her modesty and threatened her not to disclose the factum of sexual intercourse to anybody in her household. The prosecutrix, however, acknowledged the presence of her sister-in-law Sita at the time of incident and also that of her bother-in-law Balu Mogya immediately thereafter. The police, on the FIR, registered a case and in course of the investigation, seized the wearing apparels of the prosecutrix, got her medically examined and also collected sample of her vaginal swab for forensic examination. Charge sheet was laid against the appellant under sections 376 & 323 IPC and the appellant pleaded "not guilty" when confronted therewith at the trial. 4. The prosecution examined the victim (PW-1), her sister-in-law Sita (PW-2), her bother-in-law Balu (PW-3) and her husband Shankar (PW-4). The prosecutrix in her testimony generally abided by her statements made in the FIR. In cross-examination, she also disclosed the presence at the time of the incident of one Matho Guja apart from Sita and Balu. PW-2 Sita, though, in her deposition admitted the presence of her bother-in-law Balu (PW-3) at the place of the occurrence and some confrontation with the appellant and the prosecutrix, however, did not support the allegation of rape. Balu (PW-3) stated that the prosecutrix did not inform her anything about sexual intercourse by the appellant on her. The same is the version of the Shankar (PW-4), the husband of the prosecutrix. 5. Dr. Balu (PW-3) stated that the prosecutrix did not inform her anything about sexual intercourse by the appellant on her. The same is the version of the Shankar (PW-4), the husband of the prosecutrix. 5. Dr. Shyam Shankar (PW-7) who had medically treated the prosecutrix, though indicated some simple injuries on her body mentioned, in particular, the absence of any fatal injury on her private parts. He, however, indicated that at that point of time, the prosecutrix was in her family way. 6. Whereas the learned counsel for the appellant has emphatically urged that not only he at the time of the incident was a minor aged about 15 years and that the prosecution had miserably failed to prove the charge against him, the learned Public Prosecutor has relied upon the forensic science laboratory report, Exhibit P-8 to contend that the presence of human semen in the apparels of the prosecutrix and her vaginal swab did prove the charge of rape and assault against the appellant. 7. On a consideration of the evidence of the prosecutrix as a whole, I feel unpersuaded to accept the prosecution case. Not only the sequence of the events leading to the alleged incident as narrated by the prosecutrix and that too in the presence of sister-in-law and brother-in-law and her neighbours makes the act of forcible sexual intercourse on her by the appellant highly improbable, the testimony of the sister-in-law and brother-in-law of the prosecutrix renders the prosecution case wholly untrustworthy. As the prosecutrix was a married lady, presence of human semen in her vaginal swab and on her wearing apparels per se was inadequate to establish the complicity of the accused-appellant in the alleged crime. I am, thus of the unhesitant opinion that the prosecution has failed to prove the charge of rape against the appellant. To repeat the non-disclosure of the incident by the prosecutrix to her husband, in my opinion is fatal for the prosecution case. In view of the above analysis, his conviction under section 323 IPC also is unsustainable. 8. In the wake of the above, the appeal is allowed. The impugned judgment and order is interfered with. The appellant is acquitted of the charges and is hereby discharged from the bail bail bonds. *******