JUDGMENT M.T. Joshi, J. 1. Aggrieved by the conviction for the offence punishable under section 376 of the Indian Penal Code and eventually sentenced to suffer rigorous imprisonment for a period of five years and to pay a fine of Rs. 3000/-, in default to undergo rigorous imprisonment for a period of six months, vide judgment and order dated 25th July, 2000 passed by the Additional Sessions Judge, Ahmednagar in Sessions Case No. 30/1998, the present appeal is preferred by the original accused. The prosecution case, in short, is as under:- That the prosecutrix - PW 1 resides in a locality called as Awsarkar Mala in Ahmednagar city alongwith her husband PW 2. Her son, during the period of the incident, though was eleven years old, was working as a waiter in the hotel of the present appellant in the market yard area of Ahmednagar. He was recently employed i.e. about two weeks preceding the incident which had occurred on 30th July, 2014 at about 10.30 p.m. in the night in the very hotel of the appellant. On 30th July, 1997, at about 2 p.m., the prosecutrix and her husband visited the house of mother of the prosecutrix situated in Ahmednagar city. At about 10.00 p.m., they reached by city bus to the State Transport Bus Stand. Thereafter, they visited the hotel of the present appellant, which is in the vicinity, in order to collect their son. There, they found that their son had already left the hotel. In the situation, the couple ordered for a meal. Two of the waiters who were there served the meal. After service of the meal, both the waiters left the hotel. When the couple had just begun eating, at that time, the appellant asked the husband of the prosecutrix to purchase a bottle of wine from the market by giving him an amount of Rs. 40/-. Accordingly, the husband went away. The appellant put down the shutter of the hotel. The prosecutrix protested. However, the appellant without paying heed, latched the shutter from inside. Thereafter, he caught her hand by one of his hands and gagged her mouth by another and forcibly made her to lie on shahabadi farshi stone i.e. floor of the hotel. The prosecutrix tried to obstruct him. However, since her mouth was gagged, she was unable to shout. However, the appellant without paying heed, latched the shutter from inside. Thereafter, he caught her hand by one of his hands and gagged her mouth by another and forcibly made her to lie on shahabadi farshi stone i.e. floor of the hotel. The prosecutrix tried to obstruct him. However, since her mouth was gagged, she was unable to shout. In the meantime, the appellant put off his paijama by one of his hands. He also took away his nicker. Thereafter, he put off the saree of the prosecutrix. He lifted the petticoat and thereafter, forcibly committed sexual intercourse with her. At the time when the intercourse was complete i.e. semen was discharged, the voice of the husband of the prosecutrix was heard. He was knocking the shutter. He also saw from a slit below the shutter and asked the appellant to open the shutter. He also challenged the appellant by saying that his conduct was not proper. The appellant, therefore, hastily put the under pant aside, wore the paijama and opened the shutter. Thereafter, the prosecutrix narrated the incident to the husband. In the circumstances, both of them proceeded towards the Police Station. On the road, they found two police constables, namely, PW 4 Bajrang Dongare and PW 5 Sanjay Salvi. The couple narrated the facts to them. These two police constables accompanied the couple and thereafter, the complaint came to be filed in the very same night at 12.05 a.m. with PW 6 P.I. Murlidhar Nikam. 2. PW 6 P.I. Murlidhar Shankar Nikam conducted the investigation in the case. At about 12.15 a.m., he arrested the present appellant. The prosecutrix as well as the appellant were sent for medical examination at Civil Hospital, Ahmednagar. There-at, they were examined by PW 3 Dr. Daulat Jadhav. The panchanama of the spot of occurrence was also recorded in the meantime at Exhibit-37. The clothes of the prosecutrix as well as those of the appellant were seized under separate panchanamas. The statements of the concerned witnesses were recorded and ultimately, the chargesheet came to be filed. 3. Before the learned Sessions Judge, in all six witnesses were examined. PW 1 is the prosecutrix. PW 2 is her husband. PW 3 Dr. Daulat Jadhav has examined the prosecutrix as well as the appellant. The statements of the concerned witnesses were recorded and ultimately, the chargesheet came to be filed. 3. Before the learned Sessions Judge, in all six witnesses were examined. PW 1 is the prosecutrix. PW 2 is her husband. PW 3 Dr. Daulat Jadhav has examined the prosecutrix as well as the appellant. PW 4 Bajrang Dongare and PW 5 Sanjay Salvi are the police constables who had accompanied the prosecutrix and her husband to the Police Station while PW 6 P.I. Murlidhar Nikam has investigated the case. The necessary documents like F.I.R., panchanamas, medico-legal examination report, as detailed supra and the chemical analyzer's report came to be proved. 4. During trial, the husband of the prosecutrix i.e. PW 2 did not support the prosecution case to some extent. Therefore, he was declared hostile and the A.P.P. was permitted to cross-examine him. In the circumstances, during his cross-examination, many leading questions were put which were accepted by the said witness. 5. The defence of the appellant was that there was a dispute regarding the wages paid to the son of the prosecutrix and out of that dispute, a false complaint came to be filed against him. The learned Sessions Judge, however, concluded that though no injuries were found on the person of the prosecutrix, holding the evidence as trustworthy, the conviction came to be recorded against the appellant, as detailed supra. 6. Mr. S.S. Bora, learned counsel for the appellant, took me through the entire evidence on record. He submitted that the case of the prosecution is that present appellant has forcibly made the prosecutrix to lie down on the shahabadi farshi stone i.e. floor of the hotel by catching the hand of the prosecutrix by one of his hands and by gagging her mouth by another. There is no injury found by the Medical Officer on the person of the prosecutrix in this regard. He further submitted that no injuries on the private part or anywhere on the person of the prosecutrix about the forcible sexual intercourse were found. There is a contradiction as to whether the husband of the prosecutrix was able to watch anything from the slit of the shutter as against the statement in the F.I.R. at Exhibit-16 that the shutter was latched from inside and even at what point of time, the husband was able to watch the incident. There is a contradiction as to whether the husband of the prosecutrix was able to watch anything from the slit of the shutter as against the statement in the F.I.R. at Exhibit-16 that the shutter was latched from inside and even at what point of time, the husband was able to watch the incident. He further submitted that even the husband of the prosecutrix turned hostile regarding this fact. He further took me through the record to amplify his case that not only in the vicinity of the hotel there always used to remain villagers, shopkeepers, etc., but even the police staff always used to be on duty in the said area. In the circumstances, non-examination of any such witnesses and the case of the prosecution that the prosecutrix and her husband started going towards the police station and at the same time, they were accompanied by two police constables, would go to show that there is something doubtful in the prosecution case. Mr. Bora further took me through panchanama of seizure of the clothes, the oral testimony of the Medical Officer and the chemical analyzer's report to demonstrate as to how the evidence is manipulated. In the circumstances, submitting that as reasonable doubt has arisen, the learned Sessions Judge ought to have acquitted the present appellant. 7. On the other hand, learned A.P.P. submitted that the F.I.R. is promptly filed. The medical examination of the prosecutrix, coupled with the stains on the clothes of the prosecutrix and the appellant would lend support to the statement of the prosecutrix and her husband. Even otherwise, if the version of the prosecutrix is found to be creditworthy, no corroboration is required. In the present case, there is no reason to disbelieve the version of the prosecutrix. The prosecutrix was already married woman having children. It is not always necessary that in a case of rape, certain injuries would be there. Certain inconsequential contradiction in the evidence is being labelled as manipulations. The husband of the prosecutrix being an illiterate coolie, certain inconsistencies in his statement could not brand him as untrustworthy witness and in the circumstances, he submitted that the appeal be dismissed. 8. It is not always necessary that in a case of rape, certain injuries would be there. Certain inconsequential contradiction in the evidence is being labelled as manipulations. The husband of the prosecutrix being an illiterate coolie, certain inconsistencies in his statement could not brand him as untrustworthy witness and in the circumstances, he submitted that the appeal be dismissed. 8. On the basis of above material, the following point arises for my determination:- "Has the prosecution proved that on 13th July, 1997, at about 10.30 p.m. in the night, the present appellant in his hotel "Satish", situated in Market Yard, Ahmednagar, has forcibly committed sexual intercourse with the prosecutrix?" 9. My finding to the above finding is in the negative. The appeal is, therefore, allowed and the appellant is acquitted of the offence with which he was charged, for the reasons to follow. REASONS 10. Before embarking upon the scrutiny of oral evidence of the prosecution, I propose to deal with the medical evidence in the case. The statement of PW 3 Dr. Daulat Jadhav, coupled with the documents proved by him, would be material in this regard. 11. PW 3 Dr. Daulat Jadhav deposed that on 31st July, 1997 at about 12.45 a.m. in the night, he examined the prosecutrix. She was around 30 years old. According to her, she had already undergone operation of Tubactomy. No external injuries were found on her body or at the private part. White discharge from the vagina was, however, seen. Hymen was ruptured completely and it was not in place. Blue patchulaus were found on the cervix. The vaginal swab was obtained. Pubic hairs and vaginal smear were collected for examination by the chemical analyzer. Accordingly, he passed medical examination certificate at Exhibit-31. He further deposed about the word 'rummy' in his medical examination report at Exhibit-31. He deposed that when there is increase in the size of vagina due to multiple deliveries, the same is called as rummy. Further, as regards the word 'spatulas', in the said certificate at Exhibit-31, he explained that when the vaginal muscles including labia majora and labia minora become loose and tensionless, the same is called as spatulas. He also deposed that if the lady walks for considerable distance having semen present in her vagina, the semen would come out of the vagina. Further, as regards the word 'spatulas', in the said certificate at Exhibit-31, he explained that when the vaginal muscles including labia majora and labia minora become loose and tensionless, the same is called as spatulas. He also deposed that if the lady walks for considerable distance having semen present in her vagina, the semen would come out of the vagina. He further deposed that it takes more time to ejaculate for a male of 50 years while he commits intercourse. 12. As regards medical examination of the appellant, according to the Medical Officer PW 3 Dr. Daulat Jadhav, he was examined at 2.30 a.m. in the same night. He was well built. No external injuries on his person were noticed. He did not notice any stains, either of semen or blood on his clothing. He did not also notice any smegma. No injury on the penis was found. He further did not notice any discharge from Urethra. A sample of blood as well as pubic hair was also collected by the Medical Officer for chemical analysis. Since there was no erection, the appellant was not able to give semen for examination. Accordingly, he passed certificate at Exhibit-32. 13. The evidence of the Medical Officer on its face thus would show that there is nothing either to corroborate or counter the prosecution case. The lady was already married, having delivered children whose labia majora and labia minora were loose and tensionless. In the circumstances, causing of any injury due to forcible sexual intercourse would not be possible. 14. Though the Medical Officer has deposed that he noticed white discharge from the vagina of the prosecutrix, the vaginal swab collected by him and sent to the chemical analyzer for examination, the chemical analyzer's report (Exhibit-14) would show that no semen is detected in the same. The Medical Officer's statement that the vagina was found patchulaus. It was rugose in colour and the cervix were bluish and further blue patches on cervix were found. In the situation, the white discharge found in the vagina of the prosecutrix may not be of semen, but certain other discharge of the prosecutrix herself. This more so confirmed by the statement of the Medical Officer that if after the sexual intercourse, lady walks for a considerable distance, the semen may disappear. In the situation, the white discharge found in the vagina of the prosecutrix may not be of semen, but certain other discharge of the prosecutrix herself. This more so confirmed by the statement of the Medical Officer that if after the sexual intercourse, lady walks for a considerable distance, the semen may disappear. It is thus clear that even the white discharge in the vagina found during medical examination is of no help to come to any of the conclusion. 15. The Medical Officer's finding that the hymen was found ruptured completely and it was not found in place, has been highlighted by the learned Sessions Judge. However, when it is an admitted fact that the prosecutrix was a married lady, her labia majora and labia minora were loose and tensionless, the fact of rupture of the hymen would be irrelevant. 16. Thus, the medical evidence as regards the actual sexual intercourse is neutral. 17. This takes us to consider the oral testimony of the prosecutrix PW 1, her husband PW 2 and to some extent, of PW 4 Bajrang Dongare and PW 5 Sanjay Salvi - the police constables, coupled with the alleged interpolation in the evidence by the prosecution. 18. The prosecutrix PW 1 deposed on the line of the F.I.R. She deposed that when her husband went away for bringing liquor on the direction of the present appellant, the appellant pulled down the shutter of the hotel. In the F.I.R. at Exhibit-16, it was, however, specifically recited that the shutter was not only pulled down but it was latched from inside. According to PW 2, the husband, he was able to watch certain events from the slit under the shutter. In examination-in-chief, he deposed that he has not seen anything except the fact that his wife was lying on the floor and the appellant was attempting to wear paijama. After declaring him hostile, during cross-examination at the hands of the A.P.P., he deposed that when he saw through slit under the shutter, he noticed that the appellant was found lying over his wife in naked condition and watched that his wife was resisting as her mouth was gagged by the appellant by his one hand and was committing forcible intercourse with her. He also accepted the leading question that at that time, he shouted at the appellant by saying as to what he was doing. He also accepted the leading question that at that time, he shouted at the appellant by saying as to what he was doing. Thus, he supported the statement recorded by the Investigating Officer in this regard. The statement of the husband of the prosecutrix in this regard thus cast a doubt as to whether the husband was able to watch any incident at all. 19. The prosecutrix, in her examination-in-chief, deposed that the appellant had merely pulled down the shutter and thereafter, put one of his hands on her mouth and caught her and forcibly grounded her on the stone floor. In the situation, while certain abrasions would have been a natural effect, no injury was found on the person of the prosecutrix. Further cross-examination of the prosecutrix would show as regards the natural activities that when a woman is made to lie on the ground, thereafter her saree would be removed and man removes his own paijama and the nicker, naturally the woman would be free at least for some moments or at least her mouth would remain open from the gagging. In the situation, when there is a slit to the shutter and certain shouting is made by such a woman, then there is possibility of hearing the same by somebody. 20. It can, however, be argued that the time of the occurrence being 10:30 p.m. in the night, in the business area, such a shout was a futile exercise. The cross-examination of the witness, however, would show that the shop is situated in the market yard area just near the backside gate of the market yard. The opposite facing rows of shop as well as the adjoining shops were there. Even if we ignore the statement of the prosecutrix and her husband that they did not know as to whether those shops are regularly kept open till 11 p.m. everyday or they were not knowing as to whether the regular watchman is placed in the market yard, PW 2, the husband of the prosecutrix has admitted that there is a police chowki situated in the market yard and some coolies usually sleep in front of the commission agents' shops in the night hours. Even some of such commission agents - shopkeepers are having their residential houses above the shops in the market yard. Even some of such commission agents - shopkeepers are having their residential houses above the shops in the market yard. Besides this, in the police chowki, one Police Inspector and two police constables always remain present. 21. PW 4 Police Constable Bajrang Dongare, in his examination-in-chief itself, however, has come with a statement that there was nobody on duty in that night in the police chowki in the market yard. This, however, is an improvement than his statement recorded by the Investigating Officer probably because of the earlier cross-examination of PW 1 - the prosecutrix and PW 2 - her husband in this regard. During cross-examination, he, however, glossed over the said statement by saying that PW 1 prosecutrix and PW 2 her husband have told him that there was nobody in the police chowki in the market yard, they were proceeding to the police station. PW 1 - prosecutrix and PW 2 - her husband, however, did not depose on this line. Further, these police constables, in their examination-in-chief, have given the details of the incident which, according to them, was narrated to them by PW 1 and PW 2. Their cross-examination, however, would show that the same is an improvement, to their earlier statements recorded by the Investigating Officer. 22. Thus, it can very well be observed that the oral evidence, as detailed supra, is not free from doubt. Whether this would lead us to a reasonable doubt would depend on the acceptance or refusal of the defence case of manipulation of the evidence. 23. We have already seen that as per the prosecution case, no injury on the person of the prosecutrix was found. The panchanama of the seizure of the clothes of the prosecutrix at Exhibit-38, specifically recites that while recent stain of semen was found on the petticoat of the prosecutrix, no other stains were found on the clothes of the prosecutrix. As against this, the chemical analyzer's report at Exhibit-12 would show that Exhibit-1 i.e. saree has few blood stains ranging from about 0.1 c.m. to 5 c.m. in diameter mostly near one end. This was found to be of blood-group 'B'. 24. Further, we have already earlier noted that PW 3 Dr. As against this, the chemical analyzer's report at Exhibit-12 would show that Exhibit-1 i.e. saree has few blood stains ranging from about 0.1 c.m. to 5 c.m. in diameter mostly near one end. This was found to be of blood-group 'B'. 24. Further, we have already earlier noted that PW 3 Dr. Daulat Jadhav has deposed that he did not notice any stain of either semen or of blood on the clothing of the appellant when he examined him at 2.30 a.m. in that night. The panchanama regarding the seizure of the clothes of the prosecutrix and the appellant at Exhibit 38 would show that the clothes were seized between 4.35 a.m. to 6 a.m. wherein it is recited that on the paijama, five stains of semen of recent origin were seen. This is against the record that even for the purpose of sample, the semen of the appellant could not be discharged and the Medical Officer's examination that in case of male of about 50 years of age, the semen does not get easily discharged. According to the chemical analyzer's report (Exhibit-12), in the paijama at Exhibit-5, few semen stains of about 1 c.m. in diameter were found. 25. When the panchanama regarding the saree of the prosecutrix definitely rules out presence of any blood, the chemical analyzer could not have found any blood on the same, much less of "B" group, as detailed supra. Further, when the Medical Officer is definite that no semen stains were found on the person of the appellant and that he was not able to discharge the semen for sample purposes, at 2.30 a.m., no stains of semen in considerable numbers as detailed supra, would have been found during seizure or by the chemical analyzer on the paijama of the appellant. 26. All these circumstances are so definite that in the light of the certain doubt in the oral testimony of the prosecution witnesses, the learned Sessions Judge ought to have granted benefit of reasonable doubt to the present appellant. The learned Sessions Judge, however, as detailed supra, was carried away by the complete rupture of the hymen and presence of white discharge from the vagina of the prosecutrix as found by the Medical Officer without adverting to the chemical analyzer's report. The learned Sessions Judge, however, as detailed supra, was carried away by the complete rupture of the hymen and presence of white discharge from the vagina of the prosecutrix as found by the Medical Officer without adverting to the chemical analyzer's report. The learned Sessions Judge though noted that the chemical analyzer's report (Exhibit-12) shows the presence of the blood on the saree, did not notice the importance of the same in the light of the recitals in the seizure panchanama of the same, as detailed supra. In the circumstances, relying solely on the oral evidence and wrongly finding that the same is supported by the medical evidence as well as chemical analyzer's report, convicted the appellant. The same is liable to be set aside. 27. In support of his submissions, Mr. S.S. Bora, learned counsel for the appellant, relied on the ratio in the following cases: (I) Sadashiv Ramrao Hadbe Vs. State of Maharashtra 2006 (10) SCC 92 (II) Aannaso Shripal Bukade Vs. State of Maharashtra 2011 (3) Bom. C.R. (Cri.) 168 : [2011 ALL MR (Cri.) 2170] (III) Udhavsingh @ Mannu Kisansing Babawale Vs. State of Maharashtra 2011 (3) Bom. C.R. (Cri.) 141 : [2010 ALL MR (Cri.) 3900] 28. On the other hand, Mr. M.M. Nerlikar, learned A.P.P. relied on the ratio in the case of "Bansiram @ Nathu s/o. Karnuji Gohokar Vs. State of Maharashtra", reported in 2001 C.J. (Bom.) 122 : [2002 ALL MR (Cri.) 1074]. 29. Reading of the authorities, relied on by both the sides, would show that in the facts and circumstances of the case, either finding the testimony of the prosecutrix as trustworthy, without any corroboration or a least corroboration, the conviction was upheld or finding the improbability or contradiction in the prosecution case, the testimony of the prosecutrix was not acted upon. In the present case, however, on appreciation of facts, we have come to the conclusion that the testimony of the prosecutrix and her husband is not reliable. 30. In view of the discussion in the foregoing paragraphs of this judgment, the appeal deserves to be allowed. In the result, the appeal is allowed. The order dated 25th July, 2000, passed by the Additional Sessions Judge, Ahmednagar in Sessions Case No. 30/1998, convicting and sentencing the appellant for the offence punishable under section 376 of the Indian Penal Code, is hereby set aside. In the result, the appeal is allowed. The order dated 25th July, 2000, passed by the Additional Sessions Judge, Ahmednagar in Sessions Case No. 30/1998, convicting and sentencing the appellant for the offence punishable under section 376 of the Indian Penal Code, is hereby set aside. Instead, the appellant is acquitted of the offence punishable under section 376 of the Indian Penal Code. His bail bonds shall stand cancelled. The fine amount, if any deposited by him be refunded to him. Appeal allowed