JUDGMENT 1. - Being aggrieved by the judgment and order dated 29.11.1989 passed by the learned Additional District & Sessions Judge, Bundi in Sessions Case No.60/1987 convicting the appellant under sections 376 & 323 IPC and sentencing to undergo rigorous imprisonment and pay fine as referred to herein, he (appellant) is in appeal for redress. 2. I have heard Mr.Shiv Charan Gupta, learned counsel for the appellant and Ms.Rekha Madnani, learned Public Prosecutor, Rajasthan. 3. The prosecution case is traceable to a written report lodged on 23.01.1987 at 6.00 p.m. by the prosecutrix Smt. Manbhar with the Police Station, Dei alleging that while she, alongwith her sister-in-law, Smt.Ram Bharosi, had been cutting wood in the nearby Jungle, the appellant came there, caught her from behind, bit her on her cheek, fell her on the ground and committed forcible sexual intercourse with her. It was alleged that she having raised alarm, her sister-in-law who was nearby rushed to the place of occurrence. The prosecutrix mentioned further that as she disclosed in presence of the appellant that she would narrate this incident to his family members, he (appellant) inserted the handle of the axe which she was carrying to cut woods in her vagina, for which she suffered bleeding injuries. 4. On this report, the police registered a case under sections 376 & 323 IPC and on completion of the investigation, submitted chargesheet under the above legal provisions. The appellant was also charged therewith, to which he pleaded "not guilty" and claimed to be tried. At the trial, the prosecution examined several witnesses, amongst others, the prosecutrix (PW-8), her sister-in-law Ram Bharosi (PW-5), Dr.Usha Sharma (PW-6) and Dr.Krishna Gopal Singhal, Medical Officer, General Hospital Talera Bundi. The appellant stood by his denial in course of his statement under section 313 Cr.P.C. He was however, convicted and sentenced as above. 5. Before referring to the rival arguments, it would be appropriate to notice the evidence on record to the extent necessary. 6. The prosecutrix in her testimony substantially reiterated her narration in the written report. She stated that after the incident she returned home with her sister-in-law Ram Bharosi, who had meanwhile, reached the place of occurrence after hearing her cries. Her husband having been informed as well, the written report was lodged. She admitted to have been subjected to medical examination. The prosecutrix in her testimony substantially reiterated her narration in the written report. She stated that after the incident she returned home with her sister-in-law Ram Bharosi, who had meanwhile, reached the place of occurrence after hearing her cries. Her husband having been informed as well, the written report was lodged. She admitted to have been subjected to medical examination. She stated that though her sister-in-law Ram Bharosi had witnessed the incident, she did not intervene as she was threatened as well by the appellant. In cross-examination, she however, admitted that both of them have gone to cut timber with an axe and that when Ram Bharosi reached the place of occurrence, on hearing cries, she was also carrying her axe. The witness, however, could not prove that she did suffer any injury on being held by the appellant. She however, stated that the ground where she was felled was full of small pieces of stone and wood. She stated that the offending act continued for a duration as is taken to smoke a bidi. She however, admitted that she did not suffer any injury on her body including her private parts. Ram Bharosi, PW-5, sister-in-law of the victim, stated that at the time of the incident, she was cutting wood about 15 feet away from the prosecutrix. She stated that the appellant came and caught hold of the victim from behind and committed sexual assault on her. According to the witness, after the appellant had committed the act, as the victim accosted him by saying that she would disclose the incident to all, he (appellant) inserted the handle of her axe in her vagina and thereafter fled from the scene. The witness stated that on this, the victim bled profusely from her private parts. They thereafter returned home and mentioned about the incident to her husband, a report was lodged. In cross-examination, this witness stated that when she reached the place of occurrence, the appellant was sitting over the prosecutrix. She however, stated that at the place of occurrence, there was neither any stone chips nor broken pieces of wood. She admitted of not having seen any injury on her body due to her fall on the ground and the jostle with the appellant. She admitted of not having intervened or even having tried to do so, though she had her axe with her . She admitted of not having seen any injury on her body due to her fall on the ground and the jostle with the appellant. She admitted of not having intervened or even having tried to do so, though she had her axe with her . Noticeably, this witness did not state to have heard any cry or alarm of the prosecutrix drawing her to the place of occurrence. PW-6 Dr.Usha Sharma, who had examined the prosecutrix on 24.01.1987 in her report, mentioned that she was aged 30 years and that there was no injury on her vulva and that her hymen was ruptured from before. It was, however, recorded that the prosecutrix was bleeding from the vagina and that she had suffered a tear in her vaginal wall near her cervix from where blood was oozing. The witness stated that the vaginal swab of the prosecutrix, after the collection, was sent for pathological examination and that the same did not disclose presence of any spermatozoa. The witness proved the medical report Exhibit P-4 and P-5. In cross-examination, the witness stated that if a woman is subjected to forcible sexual intercourse and if act is resisted, it is natural that her body would sustain injuries. PW-9 Dr.Omprakash Singhal, who had also examined the prosecutrix on the same date 24.01.1987 stated to have found an abrasion on her right hand finger. This witness had referred the prosecutrix to a gyaneologist for the examination of her private parts and opinion with regard to the injuries thereon if any. In cross-examination, this witness stated that in case of sexual intercourse, spermatozoa is found present in the vaginal canal upto 17 days from the act. He reiterated as well that in the present case, there was no spermatozoa in the vaginal canal of the prosecutrix. This doctor also affirmed that in case of resistance to any forcible sexual intercourse, the victim is supposed to sustain injuries on her body. 7. Mr.Gupta has emphatically argued that having regard to the state of evidence of the prosecution witnesses, the complicity of the appellant with the alleged offence has not been proved at all and he is entitled to be acquitted. 7. Mr.Gupta has emphatically argued that having regard to the state of evidence of the prosecution witnesses, the complicity of the appellant with the alleged offence has not been proved at all and he is entitled to be acquitted. Contending that the alleged offence said to have been committed in broad day light in presence of PW-5 Ram Bharosi is highly improbable, the learned counsel has dismissed the prosecution case as incredible in view of mute inaction on her part though she was armed with an axe at the relevant point of time. Learned counsel has urged that if the incident as narrated is accepted on its face value, the prosecutrix ought to have suffered severe injuries all over her body and more particularly in her private parts and in absence thereof, the prosecution case is liable to be rejected outright. Referring to the evidence of the doctors, the learned counsel has insisted that the charge of rape and assault levelled against the appellant is wholly belied thereby and thus, interference with the impugned judgment and order is warranted in the interest of justice. 8. Ms.Madnani has argued that the evidence of PW-5, PW-6, PW-8 and PW-9 taken together fully establishes the veracity of the prosecution case and thus, the appellant had been rightly convicted and sentenced by the learned trial court. Ms.Madnani has argued that as absence of spermatozoa in the vaginal canal of the appellant was due to profuse bleeding therefrom, this disclosure per se cannot be taken to be an unimpeachable evidence of the appellant's innocence. As Ram Bharosi PW-5 did not intervene out of alarm having been put to threat by the appellant, her inaction as well by no means can be a decisive consideration in the face of the otherwise overwhelming evidence on record to conclude against culpability of the appellant, she urged. 9. I have considered the materials on record as well as the arguments advanced. That at the relevant time, the prosecutrix was an adult married lady is an admitted fact. 10. The evidence of the medical witnesses read alongwith the report Exhibit P-4, P-5, P-10 and P-11 disclose that the prosecutrix had not suffered any injury on her vulva and that her hymen was ruptured from before. A transverse tear of 1=" x " x =" was detected in the posterior vaginal wall near cervix, which was bleeding. 10. The evidence of the medical witnesses read alongwith the report Exhibit P-4, P-5, P-10 and P-11 disclose that the prosecutrix had not suffered any injury on her vulva and that her hymen was ruptured from before. A transverse tear of 1=" x " x =" was detected in the posterior vaginal wall near cervix, which was bleeding. No spermatozoa was found in her vaginal canal. No opinion was elicited from these witnesses as to whether such a transverse tears could have been suffered due to the alleged insertion of the handle of the act without causing any injury on the vulva of the prosecutrix. Having regard to the manner in which the act as alleged had been committed, the place of commission thereof, the time of the day and duration taken and the passive presence of Ram Bharosi with an axe in hand, in the opinion of this Court, the veracity of the prosecution case becomes doubtful. Noticeably, the prosecutrix in her evidence did say that the ground on which she had been felled and was ravished, was full of stone chips and broken pieces of wood. She however, did not suffer any injury on her body, though the forcible act of sexual intercourse continued for some time. The evidence of the prosecutrix as well as PW-5 Ram Bharosi also does not demonstrate any desperate act of resistance by her (prosecutrix). In the backdrop of facts, as have emerged from the evidence of these two witnesses in particular, as well as the testimony of the doctors and the medical report, in the opinion of this Court, it cannot be said with certainty that the prosecution has been able to prove the charge of rape against the appellant beyond all reasonable doubt. Its case as presented has to be taken as a grain of salt entitling the appellant to the benefit of doubt caused thereby. 11. In this view of the matter, the appeal succeeds. The impugned judgment and order is set aside. The appellant is acquitted of the charge on the benefit of doubt. He is thus, set at liberty. The bail bonds stand discharged. The office would remit the records.Appeal allowed. *******