JUDGMENT M.T. Joshi, J. 1. Heard both sides. The appellant, who is convicted by learned Addl. Sessions Judge, Nandurbar in Sessions Case No. 31 of 2008 for the offence punishable under Section 376(1) of Indian Penal Code and sentenced to suffer rigorous imprisonment for a period of seven years and to pay a fine of Rs. 500/- in default, to suffer rigorous imprisonment for three months, has filed present appeal. 2. The case of the prosecution, in short, is as under:- That, the prosecutrix, who is resident of the same village that of the village of appellant namely, Patonda, was a twenty nine years old married lady having three children from her husband. On 23rd February, 2008 at about 11:00 am., she along with her daughter and P.W. 2 - Pooja i.e. her niece, had gone in the nearby forest to collect fire wood. When they were on the road leading from Patonda to Rakaswada, at that time, suddenly, a person caught her from behind and by gaging her mouth, dragged her by the road to the thorny bushes. At that time, the prosecutrix noted that the person was none else but present appellant - Jagan Rangu Thakre, who is her neighbor. When the prosecutrix was trying to get away from the appellant, he caught her and made her to lie on the ground which was near the thorny bushes, threatened her, undressed her and thereafter, forcibly committed sexual intercourse with her. At that time, the two girls who were with her, fled away to the village. Lateron, the prosecutrix also returned to the house. In the incident, she suffered injuries because of scratches of nails by the present appellant; her blouse was also torn. Her husband had gone to Nandurbar for some work. She tried to contact him on mobile phone, however, he could not be contacted and in the circumstances, when the husband returned in the evening to the house, she narrated the incident to him and lateron, in the night, the complaint came to be filed. 3. P.W. 7 - Nanasaheb Shyamrao Patil, A.P.I., conducted the investigation of the case. On the next day, he drawn the spot panchnama, sent the prosecutrix for medical examination, collected medical papers and recorded statements of the witnesses including the two girls, as detailed supra. 3. P.W. 7 - Nanasaheb Shyamrao Patil, A.P.I., conducted the investigation of the case. On the next day, he drawn the spot panchnama, sent the prosecutrix for medical examination, collected medical papers and recorded statements of the witnesses including the two girls, as detailed supra. After the medical examination of the present appellant, her clothes as well as the blood samples, discharge from the vagina etc. were sent to the Chemical Analyser. The report of the Chemical Analyser was collected and the charge sheet was filed. The appellant was arrested on the date of registration of the crime and since then, he is behind the bar. 4. Before learned Sessions Judge, in all, seven witnesses were examined. P.W. 1 - is the prosecutrix herself. P.W. 2 - Pooja is her niece. P.W. 3 - Raysing Rupchand Valvi is witness to the panchnama of the spot of occurrence. He, however, turned hostile. P.W. 4 - Prakash Shankar Ahire, Head Constable, who had carried the muddemal property to the Chemical Analyser. P.W. 5 - Dr. Ajit Gajanan Pathak and P.W.-6 Dr. Bhusan s/o. Bhalchandra Rao had examined the prosecutrix on 23rd February, 2008 and 24th February, 2008. Necessary documents like, medical examination certificate, C.A. Report, and the spot panchnama were proved by these witnesses. 5. Learned Addl. Sessions Judge came to the conclusion that the prosecution was able to prove beyond reasonable doubt that the appellant committed forcible sexual intercourse with the prosecutrix and therefore, the conviction and sentence, as detailed supra, came to be recorded against him. 6. Mr. Tandale, learned counsel for the appellant, as well as learned APP took me through the entire record and advanced their submissions. 7. Mr. Tandale, learned counsel for the appellant, submitted that there is no medical corroboration to the statement of the prosecutrix made in the F.I.R. and examination-in-chief that she was caught and dragged in the thorny bushes and was made to lie on the ground in the thorny bushes and thereafter, was forcibly raped. According to him, the medical evidence is contrary to these statements. He further submitted that while P.W. 1 - prosecutrix and P.W. 2 - Pooja stated that the appellant had, allegedly, dragged the prosecutrix from the road, however, no independent eye witness could be found as regards dragging of the prosecutrix. According to him, the medical evidence is contrary to these statements. He further submitted that while P.W. 1 - prosecutrix and P.W. 2 - Pooja stated that the appellant had, allegedly, dragged the prosecutrix from the road, however, no independent eye witness could be found as regards dragging of the prosecutrix. He further submitted that the present applicant is a neighbor of the prosecutrix i.e. he was residing one house away from her house, as admitted by the prosecutrix in the cross examination. However, the alleged history given by her to P.W. 6 Dr. Bhushan would show that she was not knowing the preparator, which statement is corroborated by the statement of the Medical Officer at exhibit 45-A. He further took me through the various inconsistencies in the statements of P.W. 1 - prosecutrix and P.W. 2 - Pooja and submitted that learned Addl. Sessions Judge was swayed by the fact that the statement of P.W. 1 - prosecutrix is corroborated by the testimony of child witness P.W. 2 - Pooja. In the circumstances, he submitted that benefit of doubt is required to be given to the present appellant and the appeal may be allowed. 8. Learned APP opposed the appeal. He submitted that the statement of the prosecutrix is corroborated by the statement of P.W. 2 - Pooja and there is also corroboration in the nature of the medical evidence of P.W. 5 - Dr. Ajit Pathak and P.W. 6 - Dr. Bhushan Rao that certain injuries were found on the back of the prosecutrix. He submitted that the contradictions highlighted by learned counsel for the appellant are of minor nature. The prosecutrix is a illiterate lady of Bhil community and therefore, inconsistencies, if any, during oral testimony would not lead to acquittal of the appellant. In the circumstances, he submitted that the appeal may be dismissed. 9. On the basis of the material on record, following point arises for my consideration:- Whether the prosecution has proved that on 23rd February, 2008 at about 11:00 a.m. in the morning near Rakaswada, near village Patonda, present appellant committed forcible sexual intercourse with the prosecutrix? My findings to the said point is in negative. The appeal is, therefore, allowed, for the reasons to follow. REASONS 10. My findings to the said point is in negative. The appeal is, therefore, allowed, for the reasons to follow. REASONS 10. The statements of the witnesses on record of P.W. 1 - the prosecutrix, P.W. 2 Pooja, niece of the prosecutrix, coupled with the testimony of P.W. 5 - Dr. Ajit Pathak and P.W. 6 Dr. Bhushan Rao i.e. Medical Officers, would be very relevant to come to the conclusion as to whether, the prosecution has proved, beyond the reasonable doubt, the alleged offence. 11. P.W. 1 - prosecutrix deposed that about four years back, she had gone to collect fire wood along with her daughter and P.W. 2 - Pooja at about 11:00 am. While she was collecting the fire wood, suddenly, the appellant came there and caught her from back side. When she looked backside, she recognized that the person was present appellant. Thereafter, both the girls, who were with the prosecutrix, fled away as the appellant threatened them that he would kill them. Thereafter, the appellant took her in the thorny bushes which were 20 to 25 feet away. He fell her down under the tree, undressed her and committed forceful sexual intercourse with her. During the incident, her blouse was torn. After the incident, she went towards the village. She had sustained scratches of the thorns on her back. 12. She further deposed about the reason for the delay caused in filing the F.I.R., that her husband was not present in the village as he had gone to Nandurbar. According to her, on the next day, she was taken to the Civil Hospital at Dhule for medical examination. Her blood and discharge from Vagina were obtained for examination. She handed over the clothes which were on her person at the time of incident, for examination. 13. P.W. 2 - Pooja, a thirteen years old girl, deposed that when her maternal aunt i.e. prosecutrix was cutting the branches of the trees by Koita, the appellant came there. He caught hold the prosecutrix and gagged her mouth and therefore, the prosecutrix was shouting. The appellant then dragged her towards a Babul tree. At that time, the appellant saw these girls and he threatened them to leave the place, else he would kill them. Thereafter, they ran towards the village. Thereafter, after half an hour, the prosecutrix returned to the house in frightened condition. The appellant then dragged her towards a Babul tree. At that time, the appellant saw these girls and he threatened them to leave the place, else he would kill them. Thereafter, they ran towards the village. Thereafter, after half an hour, the prosecutrix returned to the house in frightened condition. Her blouse was torn and her clothes were soiled. She had prickings by thorns. 14. P.W. 5 - Dr. Ajit Pathak, Medical Officer deposed that he was working as Lecturer in Gynecology at the relevant time. On 25th February, 2008, the prosecutrix was referred to him for medical examination. On her examination, he noted following injuries:- (i) Abrasion present over right neck, laterally situated medial to sternocleidomastoid muscles of size 0.5 c.m. x 0.5 c.m. brownish in colour. (ii) Abrasion present over right arm anteriorly situated in middle one third area, horizontal of size 0.75 c.m. x 0.5 cm; brownish in colour. He opined that these injuries can be possible due to scratching by nails. During cross-examination, this witness deposed that if there were no clothes on the body of a woman and she was made to lie on hard and rough surface, injuries may be possible on her body parts coming into contact with that hard and rough surface. 15. P.W. 6 - Dr. Bhushan Rao, who was, at the relevant time, working as Assistant Professor in Bhausaheb Hire Government Medical College, Dhule, deposed that the prosecutrix was referred to him on 24th February, 2008. At that time, the prosecutrix gave history that she was not knowing that the person who committed rape on her was appellant - Jagan. That, on the day of incident at 11:00 am., finding alone, the appellant pushed and made her to lie on the ground. He caught her neck and mouth with force and torn her under clothes i.e. blouse and committed forcible sexual intercourse with her. This witness did not find any injury on her private part. Her hymen had old healed tear. No bleeding was there. In the circumstances, this witness opined that the prosecutrix was habituated for penetrative sexual intercourse. During cross-examination, this witness deposed that the history given by the prosecutrix herself, was noted in his own handwriting. He further deposed that if a person is held by her face forcibly, nail marks may be seen on his/her face. No bleeding was there. In the circumstances, this witness opined that the prosecutrix was habituated for penetrative sexual intercourse. During cross-examination, this witness deposed that the history given by the prosecutrix herself, was noted in his own handwriting. He further deposed that if a person is held by her face forcibly, nail marks may be seen on his/her face. Further, abrasions on the neck are possible if a person is dragged even by few inches if that place contains thorny bushes etc. 16. Mr. Tandale, learned counsel for the appellant, submitted that there is not only delay in filing the F.I.R., but there is also delay in medical examination of the prosecutrix, which was conducted on 24th and 25th, February, 2008. The medical evidence does not support the prosecution case. The C.A. report is not of any help, as no residue of semen was found in the vaginal discharge. Even no semen was found in the pubic hair of the prosecutrix. Admittedly, there were no injuries to her private part. Further, the history given by the prosecutrix to P.W. 6 - Dr. Bhushan, would show that unknown person has committed forcible sexual intercourse with her finding herself alone while, the prosecution case is that two girls were with the prosecutrix, however, they were threatened by the appellant and therefore, fled away from the spot. He further submits that the parties are, admittedly, residing in the neighborhood and there were strained relationship between them and present prosecution is nothing but the outcome of the strained relationship. In the circumstances, he submitted that benefit of doubt may be extended to the appellant. 17. Mr. Tandale relied upon the decision of the Supreme Court in the case of Bibhishan Vs. State of Maharashtra, 2008 Cri. L.J. 721 : (2008 ALL MR (Cri.) 517 (S.C.)) wherein, it is observed that no injury was found on the body of the prosecutrix therein. Neither her clothes were torn and the prosecutrix was found habituated to sexual intercourse. Hair of the accused were not found on her private parts and therefore, the benefit of doubt was extended to the accused therein. 18. In my view, learned Addl. Sessions Judge did not advert attention to the history narrated by the prosecutrix to P.W. 6 - Dr. Bhushan about the incident. He merely referred that certain history was given. Hair of the accused were not found on her private parts and therefore, the benefit of doubt was extended to the accused therein. 18. In my view, learned Addl. Sessions Judge did not advert attention to the history narrated by the prosecutrix to P.W. 6 - Dr. Bhushan about the incident. He merely referred that certain history was given. There is major contradictions between the history given by the prosecutrix to P.W. 6 Dr. Bhushan and the contents of the F.I.R., as detailed supra. While in the F.I.R., the appellant is named and further that the prosecutrix was accompanied by two girls, the history narrated to P.W. 6 - Dr. Bhushan would speak otherwise, as detailed supra. 19. Further, in the medical examination, two injuries, as detailed supra, were found on the person of the prosecutrix namely, (i) abrasion present over right neck, laterally situated medial to sternocleidomastoid muscle of size 0.5 c.m. x 0.5 c.m. brownish in colour and (ii) Abrasion present over right arm anteriorly situated in middle one third area, horizontal of size 0.75 c.m. x 0.5 cm; brownish in colour. According to the prosecution, the prosecutrix was dragged in the thorny bushes and she was made to lie on hard ground under the thorny bushes. P.W. 2 - Pooja stated that when the prosecutrix returned to the house, she had pricking by thorns. These facts are not, at all, corroborated by the medical evidence of the two Medical Officers, as detailed supra. 20. In that view of the matter, the learned Addl. Sessions Judge ought to have extended benefit of reasonable doubt to the appellant in the light of the admitted fact that the parties are residing in the neighborhood. 21. In that view of the matter, I pass following order:- (i) Criminal Appeal is hereby allowed. (ii) The judgment and order dated 8th November, 2013 passed by learned Addl. Sessions Judge, Nandurbar in Sessions Case No. 31 of 2008 convicting the appellant/accused for the offence punishable under Section 376(1) of Indian Penal Code is hereby set aside. (iii) The appellant/accused is hereby acquitted of the offence punishable under Section 376(1) of Indian Penal Code. (iv) Since the appellant is an under trial prisoner, he be released forthwith, if not required in any other offence. (v) Fine amount, if deposited, be refunded to him. Since Mr. (iii) The appellant/accused is hereby acquitted of the offence punishable under Section 376(1) of Indian Penal Code. (iv) Since the appellant is an under trial prisoner, he be released forthwith, if not required in any other offence. (v) Fine amount, if deposited, be refunded to him. Since Mr. Tandale, learned counsel was appointed to defend the case of the appellant, his fees is quantified at Rs. 10,000/- (Rs. Ten Thousand) and the same be paid through High Court Legal Services Sub-Committee, Aurangabad. Appeal allowed.