JUDGMENT : A.S. Chandurkar, J. The appellant in this appeal filed under Section 374(2) of the Criminal Procedure Code, 1973 takes exception to his conviction in Sessions Trial No.10/2013 vide judgment dated 07/08/2014 whereby he has been convicted for the offence punishable under Section 394 read with Section 397 and Section 376 of the Indian Penal Code. For the offence punishable under Section 394 read with Section 397 of the Penal Code he has been sentenced to suffer rigorous imprisonment for a period of ten years and to pay fine of Rs.5000/-. For the offence punishable under Section 376 of the Penal Code, he has been sentenced to suffer imprisonment for life and to pay fine of Rs.15,000/-. 2. It is the case of the prosecution that one Kalyan Raut on 05/12/2012 he received information from his cousin brother that two unknown persons had robbed the gold ornaments belonging to their cousin sister Vandana Waghmare by causing hurt. The said informant Kalyan Raut complainant has stated that said Vandana had informed him that when she was going to fetch medicines for her daughter, two unknown persons proceeding on motorcycle had given her a lift. They had dropped her at village Mundipar Sadak after which she proceeded towards village Miregaon by foot. Said two persons had followed her and after suddenly assaulting her, caused her injuries. She became unconscious and after regaining consciousness, she noticed that her gold earrings were snatched. She also noticed that her gold chain having beads as well as a gold necklace worth Rs.34,000/- were stolen. Said victim was thereafter given primary treatment and then referred to Government Hospital. On that basis, crime was registered for the offence punishable under Section 394 read with Section 34 of the Penal Code. During the course of investigation, the victim further disclosed that the appellant had forcible sexual intercourse with her on the basis of which offence under Section 376 of the Penal Code was further added. After completion of investigation, a chargesheet was filed against the appellant and two others accused persons. The accused did not plead guilty and at the conclusion of trial, the appellant was convicted in the manner stated herein above. After completion of investigation, a chargesheet was filed against the appellant and two others accused persons. The accused did not plead guilty and at the conclusion of trial, the appellant was convicted in the manner stated herein above. Accused No.2 Pravin was convicted for the offence punishable under Section 202 of the Penal Code and was sentenced to suffer imprisonment for the period for which he was in police as well as judicial custody. Accused No.3 Chandrakant came to be acquitted. The appellant being aggrieved by the aforesaid conviction has challenged the same. 3. Shri Amit S. Band, learned counsel for the appellant submitted that the learned Judge of the Sessions Court was not justified in convicting the appellant. He submitted that as per the initial report at Exhibit-53 lodged at the instance of PW1 Kalyan Raut, there is no reference whatsoever of any sexual offence being committed on the victim. As per said report, the victim has stated that two unknown persons had forcibly removed her gold ornaments and on account of injuries suffered by her she had fallen unconscious. According to the learned counsel this fact was further evident from the document dated 06/12/2012 at Exhibit-166 by which the Investigating Officer had sought the opinion of the Medical Officer as to whether any sexual offence had been committed on the victim when she was unconscious. It is submitted that the offence under Section 376 of the Penal Code came to be added subsequently and if the entire evidence is taken into consideration, it is clear that conviction of the appellant for said offence cannot be sustained. In so far as conviction for the offence punishable under Section 394 read with Section 397 of the Penal Code is concerned, it was submitted that the evidence brought on record by the prosecution was not sufficient to sustain the same. The appellant had been implicated merely on the basis of suspicion. The seizures effected are not in accordance with law and therefore the appellant is entitled for acquittal. 4. Shri A.D. Sonak, learned Additional Public Prosecutor supported the conviction of the appellant. He submitted that the medical evidence brought on record by the prosecution substantiated the charge made against the appellant. The DNA report at Exhibit-69 indicated the complicity of the appellant and there was no reason whatsoever to disbelieve the said evidence. 4. Shri A.D. Sonak, learned Additional Public Prosecutor supported the conviction of the appellant. He submitted that the medical evidence brought on record by the prosecution substantiated the charge made against the appellant. The DNA report at Exhibit-69 indicated the complicity of the appellant and there was no reason whatsoever to disbelieve the said evidence. The injuries sustained by the victim were duly proved in deposition of PW14 at Exhibit-165. As regards the offence punishable under Section 394 read with Section 397 of the Penal Code is concerned, it was submitted that the stolen ornaments were recovered at the instance of the appellant and as per the version of PW8 and 11 the appellant was in custody of these stolen ornaments. The appellant had been identified in the test identification parade and hence there was no reason to interfere with the order of conviction. 5. With the assistance of learned counsel for the parties we have perused the records of the case and we have given due consideration to their respective submissions. In so far as the charge for the offence punishable under Section 394 read with Section 397 of the Penal Code is concerned, report in that regard dated 05/12/2012 (Exhibit-53) was lodged by PW1 Kalyan Raut (Exhibit-52). The informant is the cousin of Vandana and he had received a phone call from his cousin brother informing him about Vandana being injured and robbed of her gold ornaments by two unknown persons. The FIR (Exhibit-54) has been lodged on the same day of the incident under Section 394 read with Section 34 of the Penal code. As per deposition of PW2 Dr Sudha Meshram (Exhibit-60) she was working at the General Hospital Bhandara as a Dental Surgeon. She had found a fracture on the mouth of said Vandana and as further treatment was not possible there, she referred the patient to Nagpur. She has further stated that she found two teeth of Vandana to have fallen. As per deposition of PW15 Dr Abhinav Deshmukh (Exhibit-171) who was serving as Assistant Police Superintendent, he recorded the statement of the victim on 07/12/2012. He received secret information that two boys of village Mohaghata were having some ornaments and were in search of a Goldsmith for disposing off the same. On the basis of suspicion, the appellant and accused No.2 Pravin were taken in custody and thereafter arrested. He received secret information that two boys of village Mohaghata were having some ornaments and were in search of a Goldsmith for disposing off the same. On the basis of suspicion, the appellant and accused No.2 Pravin were taken in custody and thereafter arrested. The statement on Memorandum under Section 27 of the Indian Evidence Act of the appellant was recorded on 09/12/2012 (Exhibit-103). PW8 Ravindra Gadhe (Exhibit-117) has stated that he was acquainted with the appellant and that on 07/12/2012 the appellant had been to his workshop and had shown him a gold necklace. He had made an inquiry about such Goldsmith who would purchase the ornaments. Thereafter this witness and the appellants had gone to the shop of accused No.3 Chandrakant. At the shop of Chandrakant, the appellant told him that the gold necklace could be placed on pledge after providing an amount of Rs.10,000/-. This witness identified the photograph of gold necklace. Seizure of the money purse as well as gold earrings has been proved by PW9 as panch witness (Exhibit-118). PW11 Bharat Raut (Exhibit-133) who was working as a Manager at the credit society has stated that the gold necklace was pledged at his society by accused No.3. The victim Vandana identified these ornaments and received the same on supratnama. 6. As the offence was registered against the unknown persons, a test identification parade was held on 08/01/2013. As per PW12 Gopal Pindke (Exhibit-144) he was working as a Naib Tahsildar and he has deposed that the appellant as well as accused No.2 were identified by Vandana as per his report at Exhibit-150. From the aforesaid evidence it can be seen that the prosecution has succeeded in proving the offence punishable under Section 394 read with Section 397 of the Penal Code against the appellant. Though the victim Vandana has initially stated that she was given a lift by two unknown persons and thereafter which while proceeding on foot towards Miregaon she was assaulted and her gold ornaments were removed, she has identified the appellant and accused No.2 in the test identification parade. The gold ornaments have been recovered at the instance of the appellant and the attempt made by the appellant to dispose off the stolen property belonging to the victim by pledging the same is also been proved by the prosecution. The gold ornaments have been recovered at the instance of the appellant and the attempt made by the appellant to dispose off the stolen property belonging to the victim by pledging the same is also been proved by the prosecution. The injuries suffered by Vandana as per medical certificate at Exhibit-109 indicate hurt caused to her while committing said offence. In the circumstances we find that the learned Judge of the Sessions Court was justified in convicting the appellant for the offence punishable under Section 394 read with Section 397 of the Penal Code. 7. In so far as the charge under Section 376 of the Penal Code is concerned, there is no mention of any such act constituting offence under Section 376 of the Penal Code in the report dated 05/12/2012 (Exhibit-53). The first informant – Kalyan Raut has deposed that on 05/12/2012, he had received a phone call from his cousin that two unknown persons had injured Vandana and had forcibly taken her gold ornaments. The report lodged on that basis, therefore, refers only to the incident of robbery under Section 394 of the Penal Code, on the basis of which the First Information Report (Exhibit-54) came to be lodged. After the attack on Vandana, she was first taken for medical aid at Miregaon and thereafter was admitted in a hospital at Sakoli. Exh.109 is the Medicolegal Certificate issued by the Medical Superintendent, Subdistrict Hospital, Sakoli, dated 05/12/2012. As per the opinion of the concerned doctor, the injuries on her face were likely to have been caused by a sharpedged weapon and she was, therefore, referred to Government Hospital, Bhandara. Exhibit-166 is the communication issued by the Investigating Officer to the Medical Officer, General Hospital, Bhandara, dated 06/12/2012, in which it is stated that Vandana had been robbed of her gold ornaments after which she had become unconscious. So as to ascertain as to whether any sexual assault was committed on her by taking advantage of her unconsciousness, medical opinion was sought. Accordingly, the Medical Officer referred Vandana to the Gynaecologist for necessary investigation. PW14 Dr Rutuja Fukey (Exhibit-165) has deposed that when Vandana was being medically examined, she had given a history of an attack by two unknown persons on her, due to which, she became unconscious and that she was not aware whether any sexual assault was made on her. Accordingly, the Medical Officer referred Vandana to the Gynaecologist for necessary investigation. PW14 Dr Rutuja Fukey (Exhibit-165) has deposed that when Vandana was being medically examined, she had given a history of an attack by two unknown persons on her, due to which, she became unconscious and that she was not aware whether any sexual assault was made on her. This witness further stated that it was difficult to opine whether the victim had sexual intercourse in the recent past. She issued such Certificate at Exhibit-170. Thus, till 06/12/2012, even according to the Medical Officer, Vandana, while narrating the history, had not referred to any sexual assault being made on her, at least when she was conscious. 8. PW3 Vandana (Exhibit-71) in her deposition has stated that after she along with the appellant and accused No.2 was near Miregaon, the appellant suddenly caught hold of her right wrist and had taken her in the forest. After falling her down on the earth, the appellant forcibly removed her clothes and had sexual intercourse with her against her consent. Thereafter, the appellant and Vandana wore their clothes, after which the appellant forcefully pressed her neck, due to which she became unconscious. After she regained consciousness, she found the appellant and accused No.2 were not there and her gold ornaments were missing. She had some bleeding injuries. From the aforesaid version of the victim, it can be seen that the appellant had first forcibly committed sexual intercourse with her and thereafter had pressed her neck, due to which she fell unconscious. If forcible sexual intercourse was committed on Vandana before she became unconscious, this fact would have been definitely narrated by her to Omeshwar, her cousin, who, in turn, had intimated the incident to the informant – Kalyan Raut. Similarly, said fact would have been narrated by Vandana to Dr. Rutuja Fukey who had examined her medically on 08/12/2012 and had noted the medical history. Vandana merely narrated about the attack on her due to which she became unconscious and was not aware whether any sexual assault was committed on her. This fact stands fortified by the observations in the communication dated 06/02/2012 (Exhibit-166) issued by the Investigating Officer. 9. Rutuja Fukey who had examined her medically on 08/12/2012 and had noted the medical history. Vandana merely narrated about the attack on her due to which she became unconscious and was not aware whether any sexual assault was committed on her. This fact stands fortified by the observations in the communication dated 06/02/2012 (Exhibit-166) issued by the Investigating Officer. 9. From the aforesaid material brought on record by the prosecution, there is a grave doubt created as to whether any forcible sexual intercourse had been committed on Vandana by the appellant especially when the same was not been mentioned by her for almost two days after the incident. Conspicuously, this incident has not been narrated to the Medical Officer by Vandana while stating the medical history, while in her deposition, it is stated otherwise. Though it is true that the statement of the prosecutrix is entitled to its own weightage, but when the same is considered along with other attending circumstances and the material on record, we do not find it safe to rely on her testimony in so far as commission of offence under Section 376 of the Code is concerned. The appellant's conviction on said count is, therefore, liable to be set aside. 10. In the result, the following order is passed:- ORDER (i) Criminal Appeal is partly allowed. (ii) The conviction for the offences punishable under Section 394 read with Section 397 of the Indian Penal Code and the sentence of R.I. for ten years and fine of Rs.5,00000/- are maintained. (iii) The conviction and sentence awarded to the appellant for the offence punishable under Section 376 of Indian Penal Code are set aside and the appellant is acquitted of the offence charged under Section 376 of the Indian Penal Code.