JUDGMENT The Appellant having been convicted dated 03.04.1998 for commission of offence under Section 376 IPC & sentenced to undergo rigorous imprisonment for a period of 7 years & to pay a fine of Rs.1000 with default stipulation to undergo rigorous imprisonment for three months in S.T. Case No. 47/166 of 1997 by the Learned Assistant Sessions Judge, Balasore has preferred this appeal. 2. Prosecution case is that in the night of 29/30th of January 1997, the victim a married lady was in her house alone. Around mid night, the Appellant who is co-villagers & used to call the victim as Khudi (Aunt) in village Courtesy, came & knocked at the door calling the name of victim's husband by name that he was wanted by him. The victim then from inside the house told about the absence of her husband having gone for doing patuli work (final process of separation of chaffed paddy from sheaves,) the Appellant asked the victim to open the door & facilitate for lighting a bidi (locally made cigarette in unsophisticated manner)-So, the victim (P.W.9) opened the door. It is stated that the Appellant entered into the house & put his muffler (woollen-scarf) on the mouth of the victim, closed the door from inside & showing a knife & thereafter removing the saree, saya & blouse, fulfilled his sexual lust by having the intercourse with the victim against her will. After the above, the Respondent left the house giving threatening the victim that in case of disclosure of the same, her husband would be killed. Early morning husband of the victim (P.W. 8) arrived, when victim, P.W. 9 started crying went on narrating the incident that had taken place the previous night. Thereafter, the confrontation took place between the P.W. 8 & the Appellant, when the Appellant refuted the allegation. As it usually happens a meeting was held in the village. Since no fruitful decision could be taken, finally the P.W.8 came to Nilgiri with his wife P.W. 9. They got an F.I.R. drafted by an advocate & in turn submitted it at the Nilgiri Police Station which necessitated registration of the case & that triggered the investigation. During investigation, besides examination of witnesses incriminating materials were seized, sent for chemical examination, victim was medically examined so also the accused. They got an F.I.R. drafted by an advocate & in turn submitted it at the Nilgiri Police Station which necessitated registration of the case & that triggered the investigation. During investigation, besides examination of witnesses incriminating materials were seized, sent for chemical examination, victim was medically examined so also the accused. Finally charge-sheet was submitted against the Appellant who faced trial in the Court for offence under Section 376 of IPC. 3. The plea of the Appellant is of complete denial & false implication specifically stating the cause that because of the fact that P. W. 8 & 9 were bearing grudge as he did not vacate the encroached land belonging to Government as desired by a relation of P.W. 9. 4. Prosecution in order to bring home the charge against the Appellant examined 10 witnesses besides proving the F.I.R. as Ext. 6, medical reports & seizure list etc. Victim's husband & the victim are P.W. 8 & 9 respectively. Witnesses to the seizure of the wearing apparels of the victim are P. W. 6 & 7 who have also gone to depose regarding the village meeting & about its happening Co-villagers such as P.W. 1, 2, 6 & 7 have been examined. The scientific officer examining the wearing apparels has come to the dock as P.W.3, when P.W. 4 & P.W. 5 are the doctors who have examined the Appellant & victim respectively. The Investigating Officer has at last come to the dock as P.W.1 O. From the side of the Appellant no evidence has been tendered despite of opportunity being given to that effect. 5. The Trial Court having gone through the evidence of prosecution witnesses & upon their analysis has accepted the evidence of P.W. 9 as trustworthy for being relied upon & finally conviction has been recorded as above & accordingly the sentence has been imposed which are impugned in this appeal. 6. Learned Counsel for the Appellants submits that in this particular case when the victim is a major married lady & when the incident is said to have taken place, when her husband was absent at home, her very conduct of opening the door at the dead hour of night pushes her evidence for being placed under powerful scanner for meticulous test. It is his next submission that upon careful reading of the entire evidence of P.W. 9 in sequence wise having due pause at the end of every sequence till the end, it has to be said that the story narrated by her assigning role to this Appellant is wholly absurd. He further submits that when the evidence of P. W. 9 is taken with other emerged surrounding circumstances, it has to be said to have been case of consensual sexual intercourse being given the colour that it was forcible & against the will of the victim & that it is the outcome of the instinct of self-preservation. Therefore, he urges that the Judgment of conviction & order of sentence impugned in this appeal are vulnerable & need to be set aside. Learned Counsel for the State while refuting the above submission contends that the Trial Court of the basis of settled position of law that the conviction can be based solely upon the testimony of the victim in case of rape in the absence of any infirmity in her evidence so as to term it to be untrustworthy, has rightly accepted the same in the instant case for being relied upon & accordingly the Trial Court is justified in fastening the guilt for offence under Section 376 IPC upon the Appellant. It is his submission that there is no inherent infirmity in the evidence of P.W. 9 which also finds some corroboration from the evidence of P.W. 8 & other witnesses more particularly about the later happenings by discloser & placement for discussion. Therefore, he contends that their remains no justifiable reason to upset the finding of the Trial Court. 7. Position of law with regard to the appreciation of evidence of victim in case of rape is too settled that the testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration. Court should find no difficulty in agree on the testimony of the victim of sexual assault alone to convict where her testimony inspires confidence & it is found reliable. The corroboration in such a case is not a matter of law but guide of prudence & that corroboration is not always necessary. So, to look for corroboration to the evidence of the victim, the Court must assign the compelling reason as to why it is so required. 8. The corroboration in such a case is not a matter of law but guide of prudence & that corroboration is not always necessary. So, to look for corroboration to the evidence of the victim, the Court must assign the compelling reason as to why it is so required. 8. In the anvil of aforesaid settled principles of law, this Court now is called upon to carefully go through the evidence of P.W. 9 to find out as to how far the same inspires confidence & is trustworthy so as to be wholly relied upon or else for the same corroboration is to be sought for & finally to judge the sustainability of convict & sentence. The victim in the case is a married lady residing in .a village at a distance of 10 km from the nearest township & the location of the police station within whose jurisdiction said village comes. She is the informant herself. Incident is said to have taken place on 29.01.1997/30.01.1997 mid night. F.I.R. (Ext.1) has been lodged in the afternoon of 31.01.1997 & has been presented at the police station after having been drafted by an advocate. It has been narrated in the F.I.R. that just Appellant came called P.W. 8 & on hearing from P.W. 9 that he was absent, he asked for facilitating him to light bidi by opening the door. It is stated therein that no sooner did the door was opened, the Appellant entered into the room holding a knife & immediately threatened P.W. 9 to take away her life unless she would stood mum. It has been further narrated there that Appellant tied the mouth of the victim by a muffler & thereafter progressed by un-robbing P.W. 9 & made her fully naked. It is further stated that the Appellant then squeezed the breast & made her lie on the ground & thereafter undressing himself, committed forcible sexually intercourse against her will without listening her fervent request. Lastly the Appellant left the place by giving threat with in case the matter would be disclosed it would be fatal for P.W.8. P.W. 9, the victim had stated in her evidence that Appellant after being told about the absence of her husband, wanted to smoke bidi & asked P.W. 9 to give a matchbox for which she opened the door. P.W. 9, the victim had stated in her evidence that Appellant after being told about the absence of her husband, wanted to smoke bidi & asked P.W. 9 to give a matchbox for which she opened the door. She is not stating that the Appellant told her to open the door as stated in the F.I.R. So, here it is important to note that during the dead hour of night without being asked, the victim opened the door when she could have given the matchbox under the door or through the window etc. & particularly when it is not stated by her that there was no scope for giving matchbox in any other way other than by opening the door. She next stated that the Appellant immediately after entering the house tied her mouth by her scarf, made her naked by removing blouse & saree & then raped while squeezing her breast. But again the F.I.R. version is that first the Appellant threatened her by showing the knife asking her to stand mum & for that she out of fear could not raise hullah where after her mouth was tied by the Appellant by means of scarf during trial, she has not stated anything that the Appellant entered holding a knife. When it is the F.I.R. version that there was gap of sometime in between the entry & sexual intercourse, the same has been given a go bye in the evidence when it is stated that, Appellant came, saw & concurred. This again gives rise doubt in the mina that accepting her evidence during trial when she had the opportunity to raise hullah, she did not do so which under the circumstances can be said to be against the normal & ordinary human conduct. Particularly in this case there stands as a matter of fact that victim's mother-in-law as sleeping in a room intervened by a vacant room, when also there are so many other houses nearby, when it is also not there in the evidence that the house in question was intervened by vacant land say some type of front Courtyard touching the road. Another conduct of P.W. 9 also raises eyebrows that in the night though the mother-in-law was in a room nearby she has not been told about the incident even after Appellant's leaving the place & she is not brought to the witness box, when it is also not stated that she at the point of time was made aware of this incident. It is not expected from the victim that she would be calling the front door neighbours & the inform the incident but it is normally expected that she would be disclosing before her mother-in-law at the earliest instead 01 waiting till arrival to her husband if at all she it in mind to pursue the matter further. P.W. 8 was then at a distance but only 200 cubits from their house which he has stated during cross- examination. But instead of P.W. 9 calling P.W. 8, she would be waiting till next morning as spoken out really a circumstance very hard to chew. P.W. 9 in her evidence states that simply her mouth was tied but not her hands & then the Appellant progressed in removing her blouse & saree one after another. It really sounds absurd that the lady of that age would still be standing without using her hand either in removing the scarf in shouting or resisting such removal, when she on the face of the evidence has nothing to fear as the factum of the Appellant carrying a knife making an entry to the house & threatening creating fear & then going for un-robbing her is given a gobye, It is not acceptable for a moment since her mouth was tied, she became unable to prevent. It is not the concern for preventing successfully but the concern is about lack of any attempt to prevent. The house in question is in a basti with houses nearby & when in the very house there are other occupant in another room but alas, nobody would be getting any hint about the incident even indirectly & they would be hearing from the husband certainly stands a circumstances to approach the evidence of P.W. 9 with distrust. The house in question is in a basti with houses nearby & when in the very house there are other occupant in another room but alas, nobody would be getting any hint about the incident even indirectly & they would be hearing from the husband certainly stands a circumstances to approach the evidence of P.W. 9 with distrust. When she states that she was protesting & trying to prevent the Appellant from sexual intercourse being completely under the clutches of Appellant she is not stating as to how she was under the clutches the said evidence makes out no sense to accept. The medical evidence is totally silent with regard any sign of rape, No injury has been found on her person. No foreign heirs or fluid etc have been .detected either on her person or on her clothes, when also no foreign heirs or injury have been found en the private part of the victim or any other part of the body. Interestingly this P.W. 9 is not stating as to whether the sexual intercourse was committed by making her lie on the ground or on the cot or on something else as against the positive version of the F.I.R. that it was so done by making her lie on the ground. In that event ordinarily some kind of injuries are likely to appear on the back of the P.W. 9 as her own evidence is to the effect that she protested & was trying to prevent. Particularly, when it is not stated that there was something spread on the floor or for some other reason it was polished one the absence or injury casts doubt. This P.W. 9 admits that the Appellant used to call her Khudi (Aunt) in village Courtesy suggest that it is not the solitary occasion of meeting between the two but that is instead of being fairly stated just has been attempted to be suppressed. Moreover, in cross-examination, the version of P.W. 9 again differs that she first after opening the door remained standing near it when she returned back & was at a distance of 5 cubits, the Appellant came & tied her mouth. Again, it is stated by her, that the Appellant while opening the scarf was also holding a knife in the right hand. It is further stated that Appellant used both hands in tying the scarf. Again, it is stated by her, that the Appellant while opening the scarf was also holding a knife in the right hand. It is further stated that Appellant used both hands in tying the scarf. The same just appears to be a stark impossibility & as such is not believable. The circumstances as stated above which emanate from the evidence of P.W. 9 being viewed together with her evidence rather greatly tend to lean favour of a case of consensual sexual intercourse turning as one against the consent & on account of instinct of self preservation. Therefore, evidence of P. W.9 cannot form the sole basis for holding the Appellant guilty of rape as it is not wholly trustworthy being free from basic infirmities. 9. The above being the finding now let's look to the corroboration if any available & if the same can bring confidence to the evidence of P.W. 9 so as to form the foundation of finding of guilt. P.W. 8 has deposed that on his arrival, P.W. 9 disclosed. It appears that P.W.9 having supplied the matchbox to the Appellant for the first time is being stated by this witnesses when the victim is not stating so & it appears to be in the direction of reducing the gap of time between the entry of Appellant & the final act. This witness is again stating that as told at the point of knife P.W. 9 was made naked & raped while not stating anything about the tying of P.W.9's "mouth by a scarf. His earlier version during investigation being told by his wife that the Appellant asked his wife for matchbox for smoking bidi as proved is now not stated. So, evidence of this witness is of no aid to provide corroboration to the evidence of P.W.9 on those particular material aspects as aforesaid to remove the doubt & wipe out the infirmity. Furthermore, the mother-in-law of the victim has not been examined either during the investigation or trial even to ascertain her knowledge if any about the incident. Other evidence remain with regard to meeting in the village which are of very little significance in view of aforesaid discussion of evidence. Furthermore, the mother-in-law of the victim has not been examined either during the investigation or trial even to ascertain her knowledge if any about the incident. Other evidence remain with regard to meeting in the village which are of very little significance in view of aforesaid discussion of evidence. For the aforesaid discussion of evidence & reasons the Trial Court's finding in balding the Appellant guilty for offence under Section 376 IPC is found to be unsustainable; so also the consequential order of sentence. 10. Resultantly the appeals stands allowed. The impugned Judgment of conviction & order of sentence are hereby set aside.