Judgment : 1) This criminal appeal is directed against the judgment of conviction and order of sentence dated 03.02.1998 passed by the Additional Sessions Judge, Balodabazar, District – Raipur in Sessions Trial No. 9/97, whereby the trial Court has convicted the appellant under Section 376(1) of the IPC and sentenced him to undergo R.I. for seven years and to pay fine of Rs.1,000/-, in default of payment of fine, to undergo additional R.I. for six months. 2) Conviction is impugned on the ground that without there being an iota of evidence, the trial Court has convicted & sentenced the appellant as aforementioned and thereby committed illegality. 3) As per case of prosecution, on 11.10.1996 at about 8.30 p.m. prosecutrix was suffering from abdominal pain. She went to backyard (kolabadi), which is behind her house for giving the answer to call of nature. At that time, accused/appellant came there, caught hold of her hand and told her to come to badi. When she refused, the accused dragged her into Sitaram's badi, which is adjacent to her kolabadi. Thereafter, she screamed, then accused gagged her mouth, put her down on ground, removed her petticoat and shawl from her body and committed sexual intercourse. At this juncture, her husband Ram Prasad (PW-2) came there, he put on torch, then accused fled away from the spot. She narrated the incident to her husband Ram Prasad (PW-2) and thereafter to Veersingh (PW-7) and Ram Narayan. Prosecutrix lodged FIR vide Ex.P-1 at police station, Bhatapara (Gramin). Police sent her for medical examination after obtaining her husband's consent vide Ex.P-4 to Govt. Hospital, Bhatapara vide Ex.P-5A. Dr. (Smt.) Anita Verma (PW-3) examined the prosecutrix vide Ex.P-5 and found that there is no mark of external injury over her private part, vagina admitted two fingers easily. She opined that the prosecutrix was habitual to intercourse and there is no symptom of recent intercourse. Her petticoat and blouse were seized vide Ex.P-2. Broken bangles were seized from the spot vide Ex.P-8. Sealed slides of vaginal swab were seized vide Ex.P-9. Spot map was prepared vide Ex.P-12. Patwari prepared spot map vide Ex.P-3. 4) Accused was arrested and was sent for medical examination to Govt. Hospital, Bhatapara vide Ex.P-6A where Dr. Ashok Soni (PW-5) has examined the accused vide Ex.P-6 and has given opinion that accused was capable to perform sexual intercourse. Sealed slides of vaginal swab were seized vide Ex.P-9. Spot map was prepared vide Ex.P-12. Patwari prepared spot map vide Ex.P-3. 4) Accused was arrested and was sent for medical examination to Govt. Hospital, Bhatapara vide Ex.P-6A where Dr. Ashok Soni (PW-5) has examined the accused vide Ex.P-6 and has given opinion that accused was capable to perform sexual intercourse. 5) Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short, 'the Code'). After completion of investigation, charge sheet was filed before the Court of Additional Chief Judicial Magistrate, Balodabazar, who in turn committed the case to the Court of Sessions, Raipur, from where learned Additional Sessions Judged received the case on transfer for trial. 6) In order to prove the guilt of the accused/appellant, the prosecution had examined as many as nine witnesses. Statement of the accused was recorded under Section 313 of the Code, in which he denied the circumstances appearing against him and pleaded innocence and false implication in the crime in question. 7) After providing opportunity of hearing to the parties, the Additional Sessions Judge relying upon the statements of the prosecutrix (PW-1) and her husband Ram Prasad (PW-2) passed the impugned judgment of conviction and order of sentence holding that the prosecution has proved its case beyond reasonable doubt. 8) I have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 9) Learned counsel appearing for the appellant has vehemently argued that the conviction of the appellant is not based on, cogent, reliable and unimpeachable evidence. Medical report of the prosecutrix has also not supported the case of the prosecution. He would further submit that other circumstances show that the prosecutrix was a consenting party, therefore, the appellant is entitled for acquittal. 10) Per contra, learned counsel appearing for the State has supported the judgment passed by the trial Court and opposed the appellant’s argument. 11) In order to appreciate the arguments advanced on behalf of the parties, I have to examine the evidence available on record. 12) The prosecutrix (PW-1) deposed that when she was going for ease in her badi, at that time accused came there and caught hold of her hand. She screamed, but no one was present there to rescue her. 11) In order to appreciate the arguments advanced on behalf of the parties, I have to examine the evidence available on record. 12) The prosecutrix (PW-1) deposed that when she was going for ease in her badi, at that time accused came there and caught hold of her hand. She screamed, but no one was present there to rescue her. Accused gagged her mouth and dragged her into Sitaram's badi, where he committed rape on her. After hearing sound of screaming, her husband Ram Prasad (PW-2) came there, he put on torch and came to know about commission of sexual intercourse, then appellant fled away from the scene of occurrence. She narrated the incident to her husband and thereafter reported the incident to Police Station, Bhatapara (Gramin) vide Ex.P-1. In her cross-examination, she admitted that her elder and younger brother-in-laws reside at the distance of 50 feet from the place of incident, she also admitted that one medical employee was also residing adjacent to her house, but in her police report (Ex.P-1) she has not stated that when accused caught her hand and she screamed. It is clear that she is improving her statement in the Court. She further stated that the accused gagged her mouth, but in her medical report no sign of any injury is seen over her mouth. She also stated that accused put her down on the ground, but no any single injury was found over back of her body. She also contented that accused was holding her hand and dragged her towards Sitaram's badi, but neither any swollen nor any injury was seen over her hand in medical report. Thus, statement of Dr. Ashok Soni (PW-5) and medical report (Ex.P-6) have not supported the case of the prosecution. Statement of the prosecutrix is not reliable because if she raised any alarm, then somebody would have heard that sound and would have immediately rushed to the spot to rescue her as to why she was screaming. Therefore, it is clear that there are contradictions and omissions in her statement, for which her testimony is disagreeable about the incident. 13) Another prosecution witness Ram Prasad (PW-2), who is husband of the prosecutrix, has stated that after hearing of sound coming from Sitaram's badi, he went there and put on torch and saw that accused was fleeing away from the spot and his wife was present there. 13) Another prosecution witness Ram Prasad (PW-2), who is husband of the prosecutrix, has stated that after hearing of sound coming from Sitaram's badi, he went there and put on torch and saw that accused was fleeing away from the spot and his wife was present there. His wife narrated about the incident. In the cross-examination, especially in para 5, he admitted that prosecutrix was weeping and came to house after the incident. This statement shows that this witness was present in his house and his wife came to house and narrated the incident. Therefore, in chief statement of this witness about seeing the incident is not reliable. 14) Another witness Veersingh (PW-7) is a hearsay witness. The testimonies of the prosecutrix and her husband Ram Prasad (PW-2) were not reliable and were also not at all supported by medical evidence. Therefore, I am unable to up-hold the finding of guilt recorded by the trial Court on the basis of statements of the prosecutrix and her husband Ram Prasad (PW-2). The impugned judgment of conviction and order of sentence recorded by the trial Court cannot be sustained under the law, therefore, the same is called for set aside. 15) In the result, the appeal is allowed. Conviction and sentence of the appellant by the trial Court is set aside. The accused/appellant is acquitted of the charge under Sections 376 (1) of IPC. 16) It is stated that the appellant is on bail. His bail bonds shall continue for a further period of 6 months as per requirement of Section 437-A of the Code.