JUDGMENT : Chander Bhusan Barowalia, J. The present appeal arises from the judgment passed by the Court of learned Additional Sessions Judge-II, Kangra at Dharamshala, District Kangra, H.P., in Sessions Trial No. 243/of 2013, dated 30.7.2015, acquitting the accused of the charge under Section 376 of the Indian Penal Code. 2. Brief facts of the prosecution story are that on 9.8.2012, an application was forwarded to the Police Station, Jawalamukhi by the Pradhan, Gram Panchayat, Dhanot, on the basis of which FIR No.137/2012 dated 9.8.2012 under Section 376 of the Indian Penal Code, was registered against the accused. This application was moved by the villagers of Villages Panjiara, Jatehar and Adhwani to Gram Panchayat on the allegations that on 3.8.2012, accused Suman Kumar under the influence of liquor committed rape with a mentally ill woman in the broad day light in a field abutting to the road and the same was witnessed by the School going children. The application was forwarded by the Gram Panchayat, Dhanot to Police Station, Jawalamukhi and on its basis, formal F.I.R. was registered against the accused and the investigation was taken up by Sub Inspector Shankar Singh. During the investigation, eye witnesses Ankush Sharma, Nishant Sharma and Sukesh Thakur gave demarcation of the spot in the presence of Nirmala Devi, the Pradhan Gram Panchayat, Dhanot, prosecutrix and her husband Janak, the spot was photographed and videographed. The prosecutrix was got medically examined at Zonal Hospital, Dharamshala and her Medico Legal Certificate was procured with the observation that final opinion will be given after F.S.L. report, gynecological opinion and psychiatric evaluation, as such, the prosecutrix was admitted in the Psychiatric Ward at Dr. R.P.G.M.C. Tanda. Vide Psychiatric report, the prosecutrix was found to be suffering from schizophrenia. The accused was arrested on 10.8.2012 and during investigation, he got recovered his Trousers and T-shirt, which were preserved for chemical examination. The blood of the prosecutrix and accused was also preserved for DNA Profiling and was sent to F.S.L., Junga. On receipt of F.S.L. reports, final opinion was sought from the Medical Officer on the Medico Legal Certificate of the prosecutrix. The Investigating Officer prepared the site plan and recorded the statements of the witnesses. 3. We have heard the learned counsel for the parties and have gone through the record in detail. 4. On receipt of F.S.L. reports, final opinion was sought from the Medical Officer on the Medico Legal Certificate of the prosecutrix. The Investigating Officer prepared the site plan and recorded the statements of the witnesses. 3. We have heard the learned counsel for the parties and have gone through the record in detail. 4. To prove its case, the prosecution examined as many as 22 witnesses and the statement of accused was recorded under Section 313 Cr.P.C., wherein the accused denied the prosecution case and claimed innocence. No defense was led by the accused. 5. PW1 Smt. Nirmala Devi stated that she is Pradhan Gram Panchayat Dhanot. On 9.8.2012, there was meeting quorum of the Panchayat. On the same day, Ward Member Kuljeet handed over to her an application signed by the villagers of Jatehar and Panjiara. The said application/complaint was against Suman Kumar that he had sexually assaulted a woman. She has further stated that the application was not within the jurisdiction of the Panchayat, she put her signatures and stamp of the Panchayat on the application Ex.PW1/A and sent the same to Police Station, Jawalamukhi through Panchayat Chowkidar, Joginder. On the next day, the police had come to village Panjiara and recorded the statements of the signatories of the application Ex.PW1/A. She further stated that no other investigation was conducted by the police in her presence. In cross-examination she has admitted that the police recorded her statement on 10.8.2012. She was declared hostile and in cross examination by the learned A.P.P., she has denied that on 10.8.2012, in her presence Nishant Sharma, Sukesh Thakur and Ankush Sharma had identified the prosecutrix as the same woman, who was sexually assaulted by the accused Suman Kumar. She further denied that the photographs of the spot were taken and spot map was prepared in her presence. In cross-examination by the learned defence counsel, she also admitted that the prosecutrix had been taken by the Punjab Police and denied that he knows who had written the application Ex.PW1/A. She further denied that she cannot say as to what statement was given to the police by the other persons. 6. PW2 Joginder Kumar is the Chowkidar of Gram Panchayat Dhanot. He deposed that Nirmala Devi handed over to him an application Ext.PW1/A, who handed over the same to the Police at Police Station, Jawalamukhi on the same day. 7. 6. PW2 Joginder Kumar is the Chowkidar of Gram Panchayat Dhanot. He deposed that Nirmala Devi handed over to him an application Ext.PW1/A, who handed over the same to the Police at Police Station, Jawalamukhi on the same day. 7. PW3 Nishant Sharma is 15 years old boy. As per his statement, it is clear that when he was studying in 10th standard in the School, Adhbani in the year, 2012, he was coming to home alongwith Ankush, Sukesh and Vikas from the School at about 3.00 PM. He saw that some persons were scuffling near the Panjiara Temple. Thereafter, he stated that he does not know those persons and nothing has happened in his presence. He was cross-examined by the learned APP. He denied the suggestion with regard to the fact that he had seen the accused sexually assaulting a woman in the field near to the road. He also denied that the said woman was wife of Janak Raj. He denied that he has given the statement to the police as recorded by the police. He has also denied that he narrated the incident to his parents. He also denied his association with the police on 10.8.2012 alongwith Ankush Sharma, Sukesh Thakur and Pardhan, Gram Panchayat Dhanot. He also denied that he identified the woman assaulted by the accused. He also denied that the said woman disclosed her name, who is the prosecutrix. He has further denied the suggestion that he identified the spot to the police and the police had taken the photographs and prepared the spot map. 8. PW4 Ankush Sharma is also the so called eye witness. He has also deposed in the same manner as has been deposed by PW3. He was also declared hostile and his statement is the verbatim of PW3. 9. PW5 is Sukesh Thakur, who is the third eye witness. He has stated that nothing has happened in his presence neither he know anything about this case. He was also cross-examined at length by the learned APP, but nothing favourable to the prosecution has come. 10. PW6 Vikas Chauhan is also stated to be the so called eye witness. He was also studying in the school alongwith PWs 3 to 5 and his statement is also the verbatim as that of PW3. He was also cross-examined at length by the learned APP, but nothing favourable to the prosecution has come. 10. PW6 Vikas Chauhan is also stated to be the so called eye witness. He was also studying in the school alongwith PWs 3 to 5 and his statement is also the verbatim as that of PW3. He also stated that nothing has happened in his presence and he does not know anything about this case. He also denied that his statement was recorded by the police. He has specifically denied the suggestions that on 3.8.2012, he along with Ankush, Sukesh and Nishant while coming back from the School at about 3.15 PM, near Panjiara Temple, saw that accused Suman Kumar was committing sexual act with a woman. He denied that woman was the wife of Janak Raj. He also denied that he narrated any incidence to his parents. 11. PW 7 is Swaroop Kumar, who is also the resident of the same place i.e. village Panjiara, Post Office Adhbani, Tehsil Jawalamukhi, District Kangra, H.P. He stated that in the month of August, 2012, he came to know that Suman Kumar accused raped a woman and the villagers had gathered and Suman Kumar was called, but he did not turn up and therefore, an application Ext.PW1/A, was moved to Pradhan, Gram Panchayat, Dhanot to take action against the accused. He has stated that the application Ext. PW1/A bears his signatures at point ‘A’, besides other villagers. He has stated that in his presence after 4-5 days, the accused handed-over his Pants and T-Shirt to the police, which were sealed in a parcel by the Police. He deposed that he did not remember that what was the seal impression upon the said parcel. But he admitted that recovery memo. Ext.PW7/A was prepared in his presence and he has signed the same along with Mr. Partap Singh. He has stated that Pants and T-Shirt are the same, which were recovered from the accused, when the sealed parcel were opened and clothes were put to him. He admitted his signatures on memo of identification Ext.PW7/C, prepared by the police at that time in the presence of PW7. 12. PW 8, Prem Chand was the Up Pradhan of Gram Panchayat, Adhbani. He also deposed that on 3.8.2012, he came to know that accused Suman Kumar has raped a woman of unsounded mind at Panjiara. He admitted his signatures on memo of identification Ext.PW7/C, prepared by the police at that time in the presence of PW7. 12. PW 8, Prem Chand was the Up Pradhan of Gram Panchayat, Adhbani. He also deposed that on 3.8.2012, he came to know that accused Suman Kumar has raped a woman of unsounded mind at Panjiara. He also deposed that during the year 2001 to 2005, he also remained Pradhan of Gram Panchayat Adhbani. He deposed that in the year 2003, a woman (other than prosecutrix) named Sula Devi had made a verbal complaint to him that Suman Kumar had teased her. In cross-examination he deposed that no written complaint was moved against the accused by that woman. 13. PW9 Dr. Sitender Verma, conducted the medical examination of the accused on 10.8.2012 and observed as under: (1) Beard clean shaven with fully developed thick and black in colour. (2) Moustache fully developed, black in colour. (3) Adam’s apple fully developed. (4) Auxiliary hair fully grown, thick and black in colour. (5) Only few hair on chest and around both nipples. (6) Clean shaved thick black pubic hair present. (7) Testises fully developed, both present in scrotal sack. (8) Penis fully developed, prepuce retractable smegma absent. 14. No sign of any scratch, abrasion on the body and also not on the private part. There was nothing to suggest that the accused was unable to perform sexual act. He identified the accused in the Court, who was examined by him and stated that he handed-over to the police; (i) underwear/half pants of Suman Kumar and (ii) two foreign hair found in the underwear. Both these articles were sealed and handed-over to the police and he issued MLC Ex.PW9/B, duly signed by him. In cross-examination, he mentioned alleged history in the MLC Ex.PW9/B and has mentioned on the basis of information supplied by the police. 15. PW 10 is Kuljeet Singh, who was the Ward Panch of Ward No.3 of Gram Panchayat, Dhanot. He stated that on 4.8.2012, villagers had gathered as an old lady of the village had expired where he came to know that the accused Suman Kumar had committed sexual act with a woman of unsound mind namely; prosecutrix. 15. PW 10 is Kuljeet Singh, who was the Ward Panch of Ward No.3 of Gram Panchayat, Dhanot. He stated that on 4.8.2012, villagers had gathered as an old lady of the village had expired where he came to know that the accused Suman Kumar had committed sexual act with a woman of unsound mind namely; prosecutrix. On 9.8.2012, an application Ext.PW1/A, was moved by the villagers of village Jatehar and Panjiara and that the applications bears his signature at Point No. B, as the matter was not within the jurisdiction of Gram Panchayat, the application Ex.PW1/A was forwarded to the Police Station, Jawalamukhi by the Pradhan Smt. Nirmala Devi. He also identified the accused Suman Kumar in the Court. In cross-examination, he admitted that he has no knowledge, who has written the application Ex.PW1/A. He also deposed that he cannot tell the name of the person who had divulged the fact that Suman Kumar had sexually assaulted the woman. 16. PW 11 Ashwani Kumar is a Photographer by profession and took photographs Ext.PW11/A-1 to Ext. PW11/A-13. The CDs Ext. PW11/B and Ext.PW11/C were also prepared by him and handed over to the police. In cross-examination, he has admitted that he has taken the photographs and prepared the CDs on the directions of the police. 17. PW 12 Mamata Kumari is a lady constable, who has taken the prosecutrix for medical examination and obtained four parcels sealed with seal Z. H., Dharmshala alongwith MLC and also the forms 25/39 from the Zonal Hospital and handed over the same to S.I. Shankar Singh. 18. PW 13 is HC Paramjeet Singh. He was officiating MHC on 10.8.2012 and stated that S.I. Shankar Singh deposited with him four parcels sealed with seal impression ‘ZH’ Dharmshala and one envelope and seal impression ‘K’. He handed-over the same to MHC Kuldip Kumar on 11.8.2012 and kept them in safe custody till then. 19. PW 14 is Kuldeep Kumar, who is the MHC in P.S. Jawalamukhi since December, 2010 till the date of deposition i.e. 18.12.2013. He admitted that on 12.8.2012 at about 6.00 PM, Addl. SHO/SI Shankar Singh deposited with him one parcel sealed with seal ‘K’ containing Pants and T-shirt of the accused Suman Kumar along with sample seal. On 13.8.2012, the Investigating Officer deposited with him one envelope sealed seal impression S alongwith sample seal and also one opened envelope. He admitted that on 12.8.2012 at about 6.00 PM, Addl. SHO/SI Shankar Singh deposited with him one parcel sealed with seal ‘K’ containing Pants and T-shirt of the accused Suman Kumar along with sample seal. On 13.8.2012, the Investigating Officer deposited with him one envelope sealed seal impression S alongwith sample seal and also one opened envelope. On 8.9.2012, S.K. Shankar Singh deposited with him one sealed envelope sealed with seal ‘RPGMC’ and that he entered the same in Malkhana register. On 11.8.2012, HC Paramjeet handed-over with him four sealed parcels sealed with seal impression ‘ZH’ and ‘K’ alongwith sample seal. He entered all the articles in Malkhana register Ex.PW14/A. On 11.9.2012, he sent four parcels, envelopes through Constable Rakesh Kumar No.491 to FSL Junga, Shimla, vide RC No.140/21 Ex.PW14/B and on return, he handed-over the same back to PW14. As long as the case property remained in his possession neither he nor by any one it was tampered with. He also deposed that he prepared CIPA certificates under Section 65-B of the Evidence Act Ex.PW14/C and Ex.PW14/D. On 12.8.2012, he also got the videography of the spot done and also recorded the statement under Section 161 Cr.P.C. He also deposed that he took the photographs of the spot with the digital camera. The photographs are Ex.PW11/A-1 to A-13 and CD of videography is Ex.PW11/B to Ex.PW11/C and original CD Ex PW14/E. Ex.PW14/A and Ex.PW14/B are stated to be correct as per original record brought by him in the Court. In cross-examination, he has stated that his statement was recorded after two months. 20. PW15 is retired Inspector Sarwan Kumar, who prepared the challans and presented the same before the Court. 21. PW16 is HHC Rakesh Kumar, who has taken the parcel with seal impression ZH, two envelopes sealed with seal impression ZH, one parcel containing underwear of accused sealed with seal impression K, one parcel containing pants and shirt of accused sealed with seal impression K, five envelopes sealed with seal impression K, one another parcel sealed with seal impression DR RPGMC, one another envelope sealed with seal impression DR RPGMC one another envelope containing identification forms of accused and prosecutrix for depositing the same vide RC 140/21 in FSL, Junga. He deposited the case property aforesaid on 12.9.2012 and receipt thereof handed-over to MHC, P.S. Jawalamukhi. He deposited the case property aforesaid on 12.9.2012 and receipt thereof handed-over to MHC, P.S. Jawalamukhi. He further deposed that the case property remained in his possession and neither he nor anyone tampered with the same. 22. PW17 Janak is the husband of prosecutrix. He deposed that about 10-12 years ago, his wife died and he married the prosecutrix about five years ago. He was working as a labourer at Adhe-Di-Hatiyaan, P.S. Jawalamukhi. He also deposed that the prosecutrix often use to leave the house in order to roam here and there and at times she used to return in the night. He stated that during the rainy season of year 2012, the police came to him alongwith Pradhan of Gram Panchayat and informed him that accused did bad act with the prosecutrix and also torned her clothes and the school children witnessed the occurrence of the accused doing bad act with the prosecutrix. Pradhan, Gram Panchayat advised him to keep the prosecutrix carefully in the house else as she may be exploited. Thereafter, he stated that the accused has committed forcible intercourse with the prosecutrix and that his statement has been recorded by the police as per his version. In cross-examination, he does not remember the year of his marriage with the prosecutrix. He further denied the fact that the Pradhan, Gram Panchayat advised him to keep the prosecutrix carefully in the house was not disclosed by him to the police. 23. PW18 deposed that he was posted as SI/Addl. SHO at P.S. Jawalamukhi. An application was moved by the villagers of village Adhwani and Pjyara on 09.8.2012, which is Ext. PW1/A on the basis of which FIR Ext.PW18/A had been registered against the accused Suman Kumar, who was present in the Court. He alongwith police officials had gone to the spot and had prepared the site plan Ex.PW18/B and also took photographs of spot Ext.A1 to Ext. A13 and prepared the CD Ext. PW1/B. On 10.08.2012, the accused was arrested and produced before the Court of Ld. JMIC and obtained the police remand. On 12.8.2012, accused had identified the spot and to this effect memo. Ext.PW1/C was prepared and spot map was also prepared. A13 and prepared the CD Ext. PW1/B. On 10.08.2012, the accused was arrested and produced before the Court of Ld. JMIC and obtained the police remand. On 12.8.2012, accused had identified the spot and to this effect memo. Ext.PW1/C was prepared and spot map was also prepared. He also deposed that the accused produced one Pent Ext.P2 and T-Shirt Ext.P3, which were put in a parcel Ext.P1 and sealed with seal impression KL six in numbers and parcel Ext.P1 took in possession vide seizure memo. Ext.PW7/A. Sample seal taken in separate piece of cloth Ext. PW7/B. Application Ext.PW18/D had been addressed to M.O. FRU, Dehra for the medical examination of prosecutrix. Lady doctor was not present at FRU, Dehra and the prosecutrix had been referred to ZH, Dharamshala for her medical examination. At ZH, Dharamshala medical examination of prosecutrix was got conducted and MLC of prosecturix mark ‘S’ was obtained. The opinion of medical board mark SA regarding mental status of prosecutrix was obtained. Application Ext.PW9/A moved to MO, CHC Jawalamukhi for the medical examination of accused and MLC of accused. Ext. PW9/B was obtained. He also deposed that forms of DNA Ext. PC to Ext. PF were filled in by him and on his transfer on 20.10.2012 and handed-over the file for further investigation to MHC P.S. Jawalamukhi. In cross-examination, he stated that no blood and semen detected in samples sent for chemical analysis to FSL and also that PW Janak Raj alias Lambu son of Lal Chand is not the husband of the prosecutrix. He also denied that who had written the application. He admitted that it has not come in his investigation that who had written Ext.PW1/A. He denied that PWs Nishant Sharma, Ankush, Sukesh Thakur, Vikas Chauhan had never made any statement under Section 161 Cr.P.C. before him. He also denied that the statements of witnesses aforesaid were recorded at his own and with his suitability. He denied the suggestion that Ext.PW1/A was falsely prepared and a false FIR was got registered against the accused and that accused never identified the spot. He also denied that the accused was arrested in a false case. He also denied the suggestion that Pants Ext.P2 and T-Shirt Ext.P3 were planted against the accused just to create false evidence. He admitted that accused is married and is having children. He also denied that the accused was arrested in a false case. He also denied the suggestion that Pants Ext.P2 and T-Shirt Ext.P3 were planted against the accused just to create false evidence. He admitted that accused is married and is having children. He also denied that all the formalities were conducted at Police Station just to create a false case against the accused and that he is deposing falsely being police official. 24. PW18(A) with the help of an interpreter, who is the previous husband of the prosecutrix deposed that the prosecutrix was deaf and dumb and was unable to speak. The first question put to her was whether she was given a Samosa to eat and the prosecutrix nodded her head up and down and it was interpreted by interpreter that she has stated that she was given Samosa to eat. Thereafter, second question was put whether after giving Samosa a person took her to the fields and after nodded her head left and right so, the interpreter interpreted that she has said Yes. When third question was asked that whether in the fields, some bad act was done with her on that she nodded her head left & right to convey ‘No’ and the interpreter also interpreted that she is saying ‘No’. When fourth question was asked whether that person is present in the Court, who gave her Samosa, on that the prosecutrix looked around the Court and the interpreter interpreted that the prosecutrix is unable to identify the person, who gave her Samosa and took her to the fields. The next question was when the bad act was being done whether school children came on the spot and the gesture of the prosecutrix was that she nodded her head up and down to convey Yes and the Interpreter interpreted that the prosecturix conveyed through her gesture when the bad act was done school children came on the spot. The next question was that whether after doing bad act the said person fled away. She made a gesture and interpreter interpreted that she says Yes. The next question was regarding name of the person who did bad act with the prosecutrix. In gesture prosecutrix nodded her head up and down to convey Yes and also whispered ‘Hun’. The second question of prosecutrix could not convey in ‘Hun’. She made a gesture and interpreter interpreted that she says Yes. The next question was regarding name of the person who did bad act with the prosecutrix. In gesture prosecutrix nodded her head up and down to convey Yes and also whispered ‘Hun’. The second question of prosecutrix could not convey in ‘Hun’. The third question whether no bad act was done with her, to this, the prosecutrix nodded her head left and right and the interpreter interpreted it as No. The next question was whether she cannot identify that person, she nodded her head up and down and the Interpreter interpreted it that she could not convey anything about the identity of the person. To the question that children did not come on the spot, she said that she conveyed that they too. To the question that any bad act was done with her. In gesture of the prosecutrix, the Interpreter interpreted that bad act was done to her. 25. PW19 Dr. Kavita was working as M.O. at ZH, Dharamshala. She deposed that prosecturix was brought by the police at about 5.00 p.m. for her medical examination in sexual assault case on 03.8.2012 by the accused. She also deposed that prosecutrix was conscious in unhygienic condition and not obeying commands. On examination of clothes of the prosecutrix, it was found that the shirt was in normal condition, there was no cut or any kind of stain was found on it. Salwar was in torn over multiple sites. There were small cuts above Poncha. Salwar was dirty having multiple stains. Kurta, Salwar and Dupatta were preserved for FSL examination. Colour of clothes: Dupatta was of green colour, Salwar was of Lemon and Kurta was of Mustered colour. There were no blood stains over clothes. There were no injuries over face, breasts, lips and abdomen. No local injury over vulval region. Public hair normal. No stain, matting or blood in pubic hair. There was no discharge per vaginam. There were no injury or struggle marks were observed on thighs, labia majora or mons pubis. Pubic hair cut and preserved. Vaginal swabs and smears were taken. Hymen was torn, no fresh bleeding on hymen walls found and it allowed two fingers smoothly. No stain was found over peri vulval area. Urine for pregnancy test was sent and done by strip method and was negative. She was advised for Gynecologist and Psychiatrist opinion. Pubic hair cut and preserved. Vaginal swabs and smears were taken. Hymen was torn, no fresh bleeding on hymen walls found and it allowed two fingers smoothly. No stain was found over peri vulval area. Urine for pregnancy test was sent and done by strip method and was negative. She was advised for Gynecologist and Psychiatrist opinion. The opinion of Gynecologist was same. She deposed that samples i.e. pubic hair, vaginal swabs, vaginal smear and clothes were preserved and sent for FSL examination. Parcel Ex. P4 containing pubic hair, vaginal swabs and smear Ext.P1, Ext.P2 and Ext. P3, respectively have been seen by her in the Court which were sealed by her in the said parcel. Based on physical examination, she deposed that the possibility of sexual assault cannot be ruled out. She deposed that she had issued the MLC of prosecutrix, which is Ext.:W19/A and bears thumb impression of the prosecutrix and of her husband, which was also signed by her. In cross-examination she admitted that hymen can also be torn due to heavy physical work and denied that the prosecutrix was not sexually assaulted. 26. PW 20 Dr. Major Sukhjit Singh, Associate Professor, who after conducting the examination of the prosecutrix alongwith others, came to the conclusion that the prosecutrix was suffering from psychiatric illness and she was observed to be not taking care of herself; her talks were irrelevant and incoherent. She was un-cooperative and was not able to comprehend anything, she was lacking social and test judgment and insight into her illness, she was suffering schizophrenia unspecified (ICD-10F20.9). Hence, medical Board was of the opinion that the prosecturix is suffering from psychiatric illness and she was not capable of making out her defense. The opinion Ext.PW20/A was signed by him and by doctors, namely Binod Pandey and Abhijit Rozatkar, respectively of RPGMC, Tanda. OPD slip is Ext.PW20/B. In cross-examination, he admitted that this disease is curable with regular treatment and social support as well as depending upon the numbers of episodes of the illness and any other co existing illness. 27. Learned Additional Advocate General argued that the prosecution has proved the guilt of the accused beyond reasonable doubt and the Court below has failed to take into consideration the statements of the witnesses to its true prospective. 27. Learned Additional Advocate General argued that the prosecution has proved the guilt of the accused beyond reasonable doubt and the Court below has failed to take into consideration the statements of the witnesses to its true prospective. On the other hand, learned defence counsel argued that the prosecution has not proved its case at all and no conviction can be based as it is a case of no evidence. 28. The application was moved by the villagers of village Panjiara, Jatehar and Adhwani to Gram Panchayat, Dhanot on 9.8.2012. It was disclosed in the said application that the accused had raped the prosecutrix. This application was moved by the aforesaid villagers on the basis of disclosure of the fact regarding rape of the prosecutrix by the accused by some School going children who were passing by. PW1 Smt. Nirmala Devi, Pradhan, Gram Panchayat, Dhanot, forwarded the application to the Police Station, Jwalamukhi on the basis of application, FIR was registered against the accused. Now, coming to the eye witnesses. None of the School going children though examined in the Court has supported the prosecution case while appearing as PWs 3 to 6, neither identified the prosecutrix to be the same lady to whom they had seen to be raped by the accused. When PW 3 to PW6 have not said so in the Court the statement of PW1 being hearsay cannot be taken into consideration at all. 29. As per prosecution, the residents of village Panjiara, Jatehar and Adhwani moved application Ext. PW1/A to Gram Panchayat, Dhanot only on the basis of disclosure made by the aforesaid school children. This fact has specifically been mentioned in the application Ext.PW1/A. Meaning thereby, the source of information on the basis of which prosecution machinery swung into action was the disclosure made by the aforesaid school children who have been examined by the prosecution as PW3 to PW6. Since all these witnesses have not supported the prosecution case, as such, contents of application Ext.PW1/A itself become doubtful. The prosecution has also examined some of the signatories to this application. Such witnesses are PW Swaroop Kumar and PW10 Kuljeet Singh. Though PW7 Swaroop Kumar has deposed that application Ext.PW1/A signed by him and other villagers was moved to Pradhan Gram Panchayat, Dhanot but during cross-examination by the ld. The prosecution has also examined some of the signatories to this application. Such witnesses are PW Swaroop Kumar and PW10 Kuljeet Singh. Though PW7 Swaroop Kumar has deposed that application Ext.PW1/A signed by him and other villagers was moved to Pradhan Gram Panchayat, Dhanot but during cross-examination by the ld. Counsel for the accused, he could not tell as to what has been written in the application Ext.PW1/A. PW7 is also a witness to memo. Ext. PW7/A vide which Jeans Ext.P1 and T-Shirt Ext. P2 handed over by the accused were taken into possession by the police. This witness is also a signatory to memo. Ext. PW7/C, vide which accused gave demarcation of the spot. Similarly, PW10 Kuljeet Singh has deposed that application Ext.PW1/A signed by him and other villagers was moved to Pardhan, Gram Panchayat, Dhanot. During cross-examination by the ld. Counsel for the accused, he admitted that he does not know who had written the application Ext.PW1/A. He also could not tell the name of the person, who had divulged the fact that the accused had assaulted the prosecutrix. It is very strange that the PW7 being a signatory to application could not tell as to what has been written in the application. Be it stated that neither prosecutrix nor her husband Janak ever reported the matter to the police. A shadow of doubt also casts on the application Ext.PW1/A. 30. The Medical Officer observed that there were no blood stains over the clothes of the prosecutirx and no injuries over face, breasts, lips and abdomen of the prosecutrix were found. After local examination, the Medical Officer observed as under: “No. local injury over vulval region. Pubic hair normal. No stain, matting or blood in pubic hair. There was no discharge per vaginam. There were no injury or struggle marks were observed on thighs, labia majora or mons pubis. Pubic hair cut and preserved. Vaginal swabs and smears were taken. Hymen was torn, no fresh bleeding on hymen walls found and it allowed two fingers smoothly. No stain was found over peri vulval area. Urine for pregnancy test was sent and done by strip method and was negative. She was advised for Gynecologist and Psychiatrist opinion. The opinion of Gynecologist was same.” 31. After perusal of the forensic report Ext. Hymen was torn, no fresh bleeding on hymen walls found and it allowed two fingers smoothly. No stain was found over peri vulval area. Urine for pregnancy test was sent and done by strip method and was negative. She was advised for Gynecologist and Psychiatrist opinion. The opinion of Gynecologist was same.” 31. After perusal of the forensic report Ext. PA, the Medical Officer opined that no blood or semen was detected in the samples sent for chemical analysis to FSL and also that on the basis of physical examination the possibility of sexual assault cannot be ruled out. The statement of Medical Officer no where suggests that there was sexual assault. 32. For scrutinizing the testimony of the prosecutrix, this Court refers to Section 118 of the Indian Evidence Act, which reads as under: “118. Who may testify. —All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Explanation.— A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.” 33. Only incompetency that Section highlights is incompetency from premature or defective intellect, owing to various reasons. The competency of witnesses is the rule and their incompetency is an exception. Thus, the sole test whether the witness has sufficient intelligence to depose or whether he can appreciate the duty of speaking truth. 34. The statement of prosecutrix was not recorded by the police under Section 161 Cr.P.C. or under Section 164 Cr.P.C. In the Court, the prosecutrix has failed to identify the accused and the Interpreter said that the prosecutrix is unable to identify the accused when she was put a question who gave her Samosa and took her to the fields. In cross examination also to the answer to the query that she could not identify the person/ accused, she nodded her head up and down. Meaning thereby that on two occasions, the prosecutrix failed to identify the accused. 35. Even when the prosecutrix made a gesture that she was given Samosa by the accused again there was nothing to suggest that the accused took her to the fields. Meaning thereby that on two occasions, the prosecutrix failed to identify the accused. 35. Even when the prosecutrix made a gesture that she was given Samosa by the accused again there was nothing to suggest that the accused took her to the fields. In these circumstances, when the prosecutrix has first denied, it will not be safe to accept the statement of the prosecutrix, which she made for the second time. Though, in the last version of her cross-examination, the prosecutrix identified the accused but it does not establish that he was the same person, who gave her Samosa to eat and took her to the fields and committed rape on her to support the prosecution story. 36. As per opinion of the medical board, Department of Psychiatry, the prosecutrix was not able to comprehend anything and was lacking social and test judgment and was suffering from Schizophrenia. As apparent from order dated 13.6.2014, Ext.DX, on oral examination of the prosecutrix, she refused to identify the accused who was present in the Court. On such oral examination, the prosecutrix further disclosed that nothing had been done with her by the accused. The prosecutrix has given different versions about the identity of the accused and as such, it is not safe to rely upon her statement especially when the corroborative evidence is absolutely missing. 37. The Hon’ble Apex Court in State of Rajasthan Vs. Banu Meena (2013) 4 SCC 206 , has classified the oral testimony into three categories, namely; (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. In case of wholly reliable testimony of a single witness, conviction can be founded without corroboration. This principle applies with greater vigor in case the nature of offence is such that it is committed in seclusion. The Hon’ble Apex Court has held that in case prosecution is based on wholly unreliable testimony of a single witness, the Court has no option than to acquit the accused. 38. In view of the back ground of aforesaid legal position, the statement of prosecutrix is not at all reliable or wholly unreliable. No other evidence has been led to support the allegation of rape. The offence was not committed in seclusion. A number of school going children alleged to have witnessed the incident but as discussed above, they have not at all supported the prosecution case to have witnessed so. No other evidence has been led to support the allegation of rape. The offence was not committed in seclusion. A number of school going children alleged to have witnessed the incident but as discussed above, they have not at all supported the prosecution case to have witnessed so. Hence, it shall be unsafe to base conviction on the sole testimony of the prosecutrix especially when her testimony does not find support from the evidence of PW3 to PW6. Neither the prosecutrix not her husband ever reported the matter to the police about the alleged incident at any point of time. It could be beyond belief that if such incident takes place with a married woman she will not inform her husband. The prosecutrix did not raise any hue and cry despite the fact that as per prosecution story, the spot is near the road and a number of school going children came there. Had the prosecutrix been raped then at least she would have disclosed this fact to her husband and thereafter to the police but as discussed above, neither the prosecutrix nor her husband ever reported the matter to the police at any point of time and prosecution machinery swung into action only on the basis of application Ext.PW1/A, which is also not worthy of credence. As per Medico Legal Certificate, as discussed above, no injury was found on the body or private parts of the prosecutrix. Had the prosecutrix been raped in the field, there would have been struggle marks on her back. The Medical Officer did not observe any such struggle marks on the back of the prosecutrix. No blood or semen stains were noticed on the person and clothes of the prosecutrix, which she was wearing at the time of alleged incident, as per forensic report Ex.PA, as well as, opinion of PW 19 Dr. Kavita Thakur, who examined the prosecutrix. Thus, the corroborative evidence is absolutely missing in the present case to come to the conclusion that in fact the accused committed rape on the prosecutrix. 39. In view of what has been discussed/observed hereinabove, it is ample clear that the prosecution has failed to prove its case and the guilt of the accused conclusively and so the findings of the acquittal arrived at by the learned Court below, needs no interference. 40. Accordingly, the appeal being devoid of merit is dismissed. 39. In view of what has been discussed/observed hereinabove, it is ample clear that the prosecution has failed to prove its case and the guilt of the accused conclusively and so the findings of the acquittal arrived at by the learned Court below, needs no interference. 40. Accordingly, the appeal being devoid of merit is dismissed. All the pending applications, if any, stands disposed of accordingly.