JUDGMENT 1. - In challenge is the judgment and order dated 21.08.1989 passed by the learned Sessions Judge, Swaimadhopur in Sessions Case No. 9/1989 convicting the appellant under section 376 IPC and sentencing him to suffer 7 years' rigorous imprisonment and to pay a fine of Rs. 500/-, in default to undergo rigorous imprisonment for another 6 months. 2. I have heard Mr. M.A. Khan, learned counsel for the appellant and Mr. Javed Choudhary, Public Prosecutor for the State. 3. The prosecution case is that on 21.06.1988, a FIR was lodged by Mst. Raj Bai at Police Station Malarana Dungar alleging that while she had gone to answer nature's call at about 5-6 PM in the same evening in the nearby Jungle, one Suleman and Saleem along with the another one person, whose name she did not know, were present in the vicinity and on her way back, the third person, whose name she did not know, intercepted her and committed rape on her. She having narrated the incident to her mother, an FIR was lodged. Following the registration of the police case, investigation was made and eventually charge sheet was laid against the appellant under section 376 IPC and two others namely Suleman and Saleem under section 376 read with section 114 IPC. They were accordingly charged to which they pleaded "not guilty". At the trial, the prosecution examined the victim Mst. Raj Bai (PW-2), her mother Mst. Muli (PW-3) and Dr.Chhajuram Meena who medically examined her and on the conclusion of the trial, by the impugned judgment and order, the appellant was convicted under section 376 IPC whereas the co-accused were acquitted for the failure of the prosecution to prove their association with the offence in any manner. 4. PW-1 Dr. Chhajuram Meena while proving the medical report stated that he had examined the prosecutrix on 21.06.1988 when she was aged about 18 years. According to the witness, her hymen was found to be torn and that her vaginal swab had been collected for forensic science laboratory examination. The opinion expressed was that there was nothing to suggest that she was a vergin. The report did not disclose any mark of struggle on her body. The doctor proved the medical report Ex.-P-2. The forensic science laboratory report Ex.-P-3, though, revealed human semen in the lahanga of the prosecutrix it recorded absence thereof in her vaginal swab. 5. The opinion expressed was that there was nothing to suggest that she was a vergin. The report did not disclose any mark of struggle on her body. The doctor proved the medical report Ex.-P-2. The forensic science laboratory report Ex.-P-3, though, revealed human semen in the lahanga of the prosecutrix it recorded absence thereof in her vaginal swab. 5. In her evidence, the prosecutrix stated that in the evening of the date of occurrence she had gone to the nearby Jungle to answer nature's call and at that time from the nearby well, the appellant who was present there held her and committed forcible sexual intercourse with her. She stated that the other co-accused Suleman and Saleem, though continued to take bath and did not come near. She also identified the Petticoat seized by the police and produced in court. She stated further that after the incident, she returned home and narrated about the same to her mother and her mother-in-law. She disclosed further that her husband used to live in Delhi to earn his livelihood. In cross-examination, the prosecutrix stated that she did not know the appellant before the incident and that she even did not see him earlier. She stated further to have raised alarm at the time of rape on her by the appellant. She denied the suggestion that she had extra-marital relationship with one Ramji Lal. She also denied the suggestion that the appellant was known to her before and that she had illicit relationship with him for which she consented to the act. 6. The learned counsel for the appellant has argued that the prosecution case is liable to be dismissed on the ground of delay alone, the FIR had been filed after two days of the alleged occurrence. According to the appellant, as the prosecutrix was unknown to him in absence of any test identification parade, her testimony in court identifying him to be the culprit ought to have been discarded. Mr. Khan has argued further that not only the medical evidence did not demonstrate conclusively that forcible sexual intercourse had been committed on the prosecutrix, the fact that she was a married lady and was accustomed to coitus also was a factor weighing against the veracity of the prosecution case. Mr. Khan has argued further that not only the medical evidence did not demonstrate conclusively that forcible sexual intercourse had been committed on the prosecutrix, the fact that she was a married lady and was accustomed to coitus also was a factor weighing against the veracity of the prosecution case. According to the learned counsel, the conviction and sentence recorded against the appellant in the face of the acquittal of the two accused person is invalid in law and is liable to be interfered with. 7. Learned Public Prosecutor, on the other hand, has argued that not only the evidence of the prosecutrix did prove the charge against the appellant beyond all reasonable doubt, the suggestions offered to her by the defence did demonstrate the admission of his involvement in the offence. 8. On a consideration of the evidence on record oral and documentary, I am constrained in the facts and circumstances of the case to sustain the contentions raised on behalf of the appellant. The prosecutrix, at the time of the incident, was admittedly an adult and was a married woman. The medical report (Ex.-P-2) did not reveal any mark of struggle on her body. The medical opinion expressed was that she was not a virgin. The forensic science laboratory report (Ex.-P-3) did not disclose any semen in her vaginal swab, though, it was collected on the very same day of the incident. The situs of the incident i.e. vicinity of the well where two other persons were at that time taking bath and their acquittal, though they had been earlier arrayed as co-accused with the appellant also, in my opinion, renders the prosecution case implausible and wanting in credibility. Noticibly the prosecutrix did mention that the appellant was unknown to her and that though he was in the company of the co-accused it was he who applied force on her and committed sexual intercourse. In this backdrop, the dissociation of the co-accused with the appellant in the alleged crime and their ultimate acquittal strikes at the substratum of the prosecution case. Further in her statement under section 164 Cr.P.C.(Ex.-D-1), she had involved the appellant as well as the co-accused by name, though she singled out the appellant to be the person who committed sexual intercourse with her. Further in her statement under section 164 Cr.P.C.(Ex.-D-1), she had involved the appellant as well as the co-accused by name, though she singled out the appellant to be the person who committed sexual intercourse with her. The suggestion that the prosecutrix had illicit relationship with the appellant and that, therefore, she was a consenting party to the sexual intercourse per se in this factual premise does not appear to be unfounded. Having regard to the varying versions of the prosecutrix vis-a-vis the incident and the nature and extent of the alleged involvement of the appellant and the co-accused together with other materials on record as detailed herein above, I am of the view that he (appellant) is entitled to the benefit of doubt. In my opinion, the prosecution has not been able to prove the charge of rape against the appellant beyond all reasonable doubt. I find myself in disagreement with the reasoning recorded in the impugned judgment and order. 9. 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 bonds.Appeal allowed. *******