JUDGMENT : This appeal under section 374(2) of the Cr.P.C has been filed by the accused person in Special Case No. 156/1997 challenging the judgment dated 3-2-1998 passed by the Special Judge under SC ST (POA) Act, 1989 (in short “Act, 1989”), whereby the appellant has been convicted under section 376(1) of Indian Penal Code and 3(1)(xii) of “Act, 1989” and sentenced to rigorous imprisonment for seven years with fine of Rs.500/- and rigorous imprisonment for 3 years and fine of Rs.300 with stipulated default. 2. The prosecution story in brief is that prosecutrix (PW 3) was sleeping at her house, on 22-7-1997, along with her children. Her husband had gone to his in-law’s village. At about 10:00 p.m. in the night, the appellant entered into the house and sat on the cot. The prosecutrix woke up, tried to shout, the appellant covered her mouth with a piece of cloth, gagged her and forcibly committed sexual intercourse. When the prosecutrix shouted, her brother-in-law Hazari (PW 7) came there. He saw the accused fleeing from the house and caught him. Prema PW-8 (father-in-law), mother-in-law, sister-in-law came there. The accused then begged for excuse and touched their feet. Later, finding an opportunity to escape he fled from the spot. In the morning the prosecutrix along with Hazari (PW 7) and Hulashi (PW 6) went to police station, which is at a distance of 102 kms. They lodged the report as Ex. P/3. Crime No. 17/1997 under section 376, Indian Penal Code and section 3(1)(xii) of the “Act, 1989” was lodged. The prosecutrix was sent for medical examination. Dr. Pushpa Dwivedi (PW 10) examined her and report (Ex. P/11) has been prepared. Her clothes and undergarments were seized. Two vaginal swab and slides were prepared and the same was handed over to the constable. Later, these items were seized and report (Ex.P/5) has been prepared. After the statements of the witnesses, spot map (Ex.P/7) was prepared by Deputy Superintendent of Police, H.S. Jhari PW 9. Spot map was prepared by Patwari Dharam Singh which is Ex. P/2. The accused was arrested and was sent for medical examination. Medical Officer Dr. D. K. Jain, (PW 1) has written the examination report (Ex. P/1). Nothing was found which would go to show that the accused is unable to perform sexual intercourse. The clothes and slides etc. were sent to the FSL, Sagar. P/2. The accused was arrested and was sent for medical examination. Medical Officer Dr. D. K. Jain, (PW 1) has written the examination report (Ex. P/1). Nothing was found which would go to show that the accused is unable to perform sexual intercourse. The clothes and slides etc. were sent to the FSL, Sagar. On examination the clothes of the prosecutrix was found positive for human semen. After the completion of investigation, charge-sheet has been filed. 3. The learned trial Court framed charge under section 376, Indian Penal Code and 3(1)(xii) of the ‘Act, 1989.’ The accused abjured guilt and claimed innocence. He also submitted that earlier to this the wife of Hazari (PW 7) also tried to level similar allegation against the appellant, which was found false by the police. The family of the prosecutrix, therefore, had enmity with the appellant. 4. Learned counsel for the appellant assailed the impugned judgment on several grounds and submitted that the appellant has been falsely implicated because of previous criminal and civil litigations. When they did not succeed, the appellant has been falsely implicated in the present complaint. The prosecutrix, her father-in-law Prem (PW 8), brother-in-law (PW 7) a close friend of the family of Hulashi (PW 6) are the only witnesses available. Non-examination of the independent witnesses create suspicion on the prosecution case. The police station is at a distance of 10 kms. from the place of incident. Even then, the report has been lodged at 1:30 p.m. on the following day. There is no injury external or internal found on the body of the prosecutrix. 5. The learned trial Court did not consider the prosecution evidence in its proper perspective, therefore, it caused great prejudice to the appellant. It is also claimed that there is no evidence on record in support of charge under section 3(1)(xii) of the “Act, 1989,” therefore, requested to set aside the judgment. 6. In response to the above submissions, learned Panel Lawyer for the State opposed the same and referring the incriminating pieces of evidence against the appellant, contended that the judgment impugned is well merited and calls for no interference. 7. Heard the rival contentions and perused the record. 8. The statement of the prosecutrix (PW 3) shows that when she was sleeping with her children aged about 3 years and 1½ years, the accused/appellant entered into her room. 7. Heard the rival contentions and perused the record. 8. The statement of the prosecutrix (PW 3) shows that when she was sleeping with her children aged about 3 years and 1½ years, the accused/appellant entered into her room. He sat on the cot, where the prosecutrix was sleeping. The prosecutrix further said that the accused had said to her, that nobody is there in the house, therefore, he will commit sexual intercourse with her. He then mounted on her. Then, she started shouting. The accused gagged her mouth with a piece of cloth and caught her. He committed sexual intercourse. When he was leaving the room, she took out the cloth from her mouth and shouted. On her shout, her brother-in-law Hazari (PW 7) came there and caught the accused. 9. Hazari (PW 7) has supported the prosecution story and the statement of the prosecutrix. He has stated that on hearing the shout of the prosecutrix, he came to the spot, found the accused/appellant and caught him. His father Prema, mother Halke Bai and his wife Gangu Bai all came to the spot. The accused was begging for pardon. When Hulashi (PW 6) came to the spot, the accused ran away. Hulashi (PW 6) in his cross-examination has stated that it was during the period of Rakshya Bandhan, he heard the shouts of Hazari (PW 6) and came to the spot. He saw the accused. Premlal, his wife Gangu Bai were present there. On seeing him the accused Premlal ran away from the spot. Prema, father-in-law of the prosecutrix narrated the story to him that the accused had come and had sexual intercourse with his daughter-in-law (the prosecutrix). On the following day, along with prosecutrix and Hazari, he accompanied to lodge report. These statements ought to be minutely examined to ascertain the truthfulness of these statements. It is true that on the basis of sole testimony of the prosecutrix, conviction can be based but the evidence must be reliable and of the nature that inspires confidence. The prosecutrix is a married woman of 25 years old and has two children. Generally, the married woman would not make false allegation by putting her own reputation at the stake, but her evidence cannot be relied upon when, she intends to implicate the accused having motive against him. Specially when, there is no corroborative medical evidence. The prosecutrix is a married woman of 25 years old and has two children. Generally, the married woman would not make false allegation by putting her own reputation at the stake, but her evidence cannot be relied upon when, she intends to implicate the accused having motive against him. Specially when, there is no corroborative medical evidence. The prosecutrix has also stated that her bangles were broken during the incident. But no pieces of bangle has been seized by the police. Dr. Pushpa Dwivedi (PW 10) examined the prosecutrix on 23-7-1997 and written that the patient said that she was subjected to sexual intercourse. But there was no mark of injury external or internal. Therefore, she opined that no opinion can be given that the prosecutrix was subjected to intercourse. Her report is (Ex. P/11). 10. The presence or absence of injury on the body of the rape victim is relevant to decide whether the coitus was consensual or not. It may be recalled that in view of the section 114-A of the Evidence Act inserted by the amendment in 1983, if the rape victim contends in her evidence that she did not consent to the sexual intercourse, the onus to prove consent lies on the accused. The facts of sexual intercourse, however, is required to be established by the prosecution at any rate. In doing so the presence or absence of injury on the body of the woman concerned is material. There was no imminent threat to her life or to the life of her children at the time of incident. Had she resisted, presuming that there was forcible sexual intercourse, there could be some injuries on the body of the prosecturix. 11. It is admitted by the prosecturix (PW 3), Hazari (PW 6) that earlier to this incident similar report was lodged by the wife of Hazari (PW 6) against the appellant. But after verification, the same report was found false. The prosecutrix (PW 3) and Hazari (PW 6) are the residents of Village Sonmau, Police Station Raipura. Earlier report lodged by them was at Police Station Raipura. But, the present report has been lodged at Police Station AJK, Panna which is at a distance of 102 Kms and create suspicion on the prosecution story. 12. The prosecutrix (PW 3) and Hazari (PW 6) are the residents of Village Sonmau, Police Station Raipura. Earlier report lodged by them was at Police Station Raipura. But, the present report has been lodged at Police Station AJK, Panna which is at a distance of 102 Kms and create suspicion on the prosecution story. 12. The prosecutrix also admits that the accused Premlal called a village Panchayat when report was lodged against him, by wife of the witness Hazari. Hulashi (PW 6) is a close friend of Hazari (PW 7) Hulashi and the prosecutrix belongs to the same community. House of Hulashi is at a distance of 1 furlong from the house of the prosecutrix. At the shout of Premal, Hulashi (PW 6) entered into the scene. But neighbours Raghuveer, Chanda and Jogoli were residing nearer to the prosecutrix house but did not arrive at the spot whereas Hazari (PW 7) went to the house of the prosecturix. Hazari (PW 7) also admits that the neighbours of the prosecutrix are Raghuveer, Chanda and Jagoli but Raghuveer and Chanda did not come even after the hue and cry. 13. It is also admitted by Prema (PW 8) that Hulashi (PW 7) is living at his in-law’s house. Hulashi’s father-in-law had a land dispute against the accused Premlal. 14. Therefore, the statement of Hulashi (PW 6) as the after incident the independent witness does not create confidence (sic). 15 As regarding the FSL report dated 11-9-1997, it would be pertinent to mention that the same has not been marked as Exhibit. Allegedly, there was human semen on Article A petticoat of the prosecutrix and Article B the slide prepared by medical officer. However, Article A was insufficient for test. Without any DNA examination, it cannot be said that the said semen found on the Articles A and B belong to the appellant/accused. Moreso, when the prosecutrix is a married woman and chance of having had sexual intercourse with her husband cannot be ruled out. The incident allegedly took place at 10:30 p.m. on 22nd of July. After the whole night, the report was lodged in the next morning on 23rd of July, the prosecutrix was medically examined. Therefore, the FSL report dated 11-9-1997 is also of no help to the prosecutrix. 16 The defence version is that the accused (Premlal) was given certain land by his father-in-law. After the whole night, the report was lodged in the next morning on 23rd of July, the prosecutrix was medically examined. Therefore, the FSL report dated 11-9-1997 is also of no help to the prosecutrix. 16 The defence version is that the accused (Premlal) was given certain land by his father-in-law. The same was taken away by Hulashi (PW 6), therefore, there was enmity between them. The earlier report was lodged against the appellant by Hulashi (PW 6) through Hazari (PW 7) but after the verification, the same was found false. A village Panchayat was called by appellant/accused Premlal. In the Panchayat also, it was accepted that report lodged by Hazari (PW 7) is also false against appellant/accused. 17. Chanda (DW 2) is the neighbour of prosecutrix (PW 3). She has also stated that earlier appellant was implicated by Hulashi through the report of Hazari (PW 7). Police had come for investigation but the same was found false. The appellant, therefore, organized a Panchayat in which Deshram and others were present. Hulashi (PW 6) is the husband of sister-in-law of the prosecutrix, therefore, they become annoyed with the appellant. 18. This being so, in such cases where the statement of the prosecutrix suffers from basic infirmities and probabilities factor does not support the allegation of rape, then only relying on the statement of the prosecutrix, conviction cannot be based. Applying the above test to the facts of the incident, the statement of the prosecutrix itself suffers from numerous infirmities and even does not find corroboration by medical evidence. In the case of Bharwada Bhogin Bhai vs. State of Gujarat, AIR 1983 SC 753 the Hon’ble Apex Court has expressed the opinion that “corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is likelihood of her having levelled such an accusation on account of the instinct is self preservation or when the probabilities factor is found to be out of tune.” The ratio in the case (supra), therefore, does not apply. 19. In the present case, the prosecutrix is definitely a major woman and mother of two children. What she has stated against the appellant does not find corroborative from any corner to level the charge as alleged by the prosecution against the appellant. 20. 19. In the present case, the prosecutrix is definitely a major woman and mother of two children. What she has stated against the appellant does not find corroborative from any corner to level the charge as alleged by the prosecution against the appellant. 20. Hon’ble the Supreme Court in the case of Bharwada Bhogin Bhai vs. State of Gujarat (supra) observed that “we are, therefore, of the opinion that if the evidence of the victim does not suffer from basic infirmity and the probabilities factor does not render it unworthy of credence as a general rule, there is no reason to insist corroboration except from the medical evidence.” 21. In the case of State of Rajasthan vs. Kishan Lal, AIR 2002 SC 225, the victim did not raise the alarm when the accused came to her and started having sexual intercourse with her, the evidence shows that she was consenting party and the conviction was set aside. 22. Besides, though the investigation was conducted by an officer of the rank of Deputy Superintendent of Police yet no caste certificate has been produced. In the case of Bharat Singh vs. State of M.P., 2006(4) M.P.L.J 171 , it is held that “though the appellants admitted that the complainant belong to scheduled caste community, but that itself is not sufficient to establish that the complainant belongs to the Scheduled Caste community. Caste certificate from the Competent Authority not filed. The conviction and the sentence of the appellant is not sustainable.” 23 Considering from all the angles, the facts of the present case, in the light of the above citations, the prosecution has failed to prove beyond all the reasonable doubts that the appellant (Premlal) has committed the offence of sexual intercourse without the consent of the prosecutrix (PW 3) and committed any act of insult or humiliation towards the complainant (PW 3) who is a member of Scheduled Caste. Therefore, the prosecution failed to bring home the charges punishable under section 376(1), Indian Penal Code and section 3(1)(xii) of Act, 1989. Therefore, the appeal preferred by the appellant succeeds and is allowed. Appellant is acquitted from the charges. He is on bail. His bail bonds are discharged.