JUDGMENT : 1. This appeal is directed against the judgment dated 20.7.1999 passed by the Additional Sessions Judge, Balod, District Durg in Sessions Trial No.90 of 1999 convicting and sentencing the Appellant as under: Conviction Sentence Under Section 376(1) of the Indian Penal Code Rigorous Imprisonment for 10 years Under Section 450 of the Indian Penal Code Rigorous Imprisonment for 10 years The sentences are directed to run concurrently 2. Facts of the case, in brief, are that the prosecutrix (PW1), a girl aged about 16 years, was alone at her house. She was residing with her elder sister Vimlabai (PW2) and Vimlabai's husband Udhoram (PW3). On 24.11.1998, Vimlabai had gone to the field and Udhoram had gone to Balod to purchase some articles. At that time, the prosecutrix was alone at the house. At that time, the Appellant was distributing slips to the voters regarding election. Allegedly, the Appellant came to the house of the prosecutrix and gave her a slip. Thereafter, he caught her hand, took her inside the room and threw her down on a cot. She tried to shout, but he inserted a bed-sheet in her mouth and threatened her. Thereafter, he committed forcible sexual intercourse with her. She received injuries on her person and blood also oozed out. Thereafter, the Appellant fled from there. Later on, Vimlabai and Udhoram returned home. She told them about the incident. Udhoram went to the house of the Appellant and complained about the incident to the father of the Appellant. Allegedly, at that time, the Appellant accepted his guilt. First Information Report (Ex.P1) was lodged by the prosecutrix. Her sameez and skirt were seized vide Ex.P2. She was medically examined by Dr. Shashi Cladius (PW9). Her report is Ex.P10A in which she did not find any bodily injury. She found that hymen of the prosecutrix was old ruptured. Her vagina was admitting 2 fingers easily. She was habitual to sexual intercourse. No definite opinion could be given regarding recent sexual intercourse with her. Full-pant and underwear of the Appellant were seized vide Ex.P7. The Appellant was examined by Dr. L.L. Markande (PW5). His report is Ex.P8 in which he found that the Appellant was capable to perform sexual intercourse. He also found a lacerated wound on the private part of the Appellant. 2 abrasions were also found on the penis of the Appellant. Full-pant and underwear of the Appellant were seized vide Ex.P7. The Appellant was examined by Dr. L.L. Markande (PW5). His report is Ex.P8 in which he found that the Appellant was capable to perform sexual intercourse. He also found a lacerated wound on the private part of the Appellant. 2 abrasions were also found on the penis of the Appellant. Stains of blood were also present there. He also examined the underwear and full-pant of the Appellant. His report in this regard is Ex.P9 in which he found blood like stains on those 2 clothes. From the room in which the alleged incident had taken place, a cover of kathari (bed-sheet) was seized vide Ex.P5. The kathari, the sameez and skirt were examined by Dr. Shashi Cladius (PW9). Her reports in this regard are Ex.P11A and P12A in which she found blood like stains on those clothes. The seized articles were sent to the Forensic Science Laboratory for chemical examination. The FSL report is Ex.P13. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure. On completion of the investigation, a charge-sheet was filed against the Appellant for offence punishable under Sections 450 and 376 of the Indian Penal Code. Charges were framed against him under Sections 450 and 376(1) of the Indian Penal Code. 3. To rope in the Appellant, the prosecution examined as many as 9 witnesses. Statement of the Appellant was also recorded under Section 313 Cr.P.C. in which he denied the guilt and pleaded innocence. No witness has been examined in his defence. 4. The Trial Court convicted and sentenced the Appellant as mentioned in the first paragraph of this judgment. Hence, this appeal. 5. Learned Counsel appearing for the Appellant argued that the Appellant has been falsely implicated in the case due to political rivalry. The incident took place on 24.11.1998 at about 12 noon. FIR was lodged on the same day at 4:15 p.m. Delay in lodging the FIR has not been properly explained. As stated by the prosecutrix, she had suffered excessive bleeding. Blood had also fallen on her clothes and the kathari. But, on medical examination, no injury was found on any part of her body and she was found habitual to sexual intercourse and her hymen was old ruptured. The statement of the prosecutrix is not natural. There are material contradictions and omissions in her statement. Blood had also fallen on her clothes and the kathari. But, on medical examination, no injury was found on any part of her body and she was found habitual to sexual intercourse and her hymen was old ruptured. The statement of the prosecutrix is not natural. There are material contradictions and omissions in her statement. Therefore, her statement is not reliable. Even if the statement of the prosecutrix is taken as it is, she seems to be a consenting party. There was a love relation between her and the Appellant. Her age is not proved to be below 16 years. Therefore, no offence is made out against the Appellant and he deserves to be acquitted of the charges framed against him. 6. On the contrary, Learned Counsel appearing for the State supported the impugned judgment of conviction and sentence. He submitted that the FIR was promptly lodged and there was no delay in lodging thereof. The prosecutrix has remained firm during her cross-examination about the incident. Immediately after the incident, she told about it to her sister. No previous enmity has been proved. Immediately after the incident when Udhoram (PW3) went to the house of the Appellant, the Appellant, at that time, had admitted his guilt. It has not been explained by the Appellant that if the prosecutrix was a consenting party then why did she report the matter. Injuries were also suffered by the Appellant on his penis, but he has not explained the same that how those injuries were suffered by him. Thus, the offence alleged against the Appellant has duly been proved by the prosecution. 7. I have heard Learned Counsel appearing for the parties and perused the record minutely. 8. With regard to the age of the prosecutrix, the prosecutrix (PW1), in her Court statement, has stated that she born in the year 1984 and thus, she has stated her age to be 14 years. As stated by Udhoram (PW3), her age was 15 years. The prosecutrix has admitted that she has stated her age on the basis of the date of birth mentioned in her school mark-sheet. K.R. Kanwar (PW7), Headmaster of the school has stated on the basis of the school admission register (Pravesh Panji) that on 12.7.1996, the prosecutrix was admitted in the school in 7th Standard. The prosecutrix has admitted that she has stated her age on the basis of the date of birth mentioned in her school mark-sheet. K.R. Kanwar (PW7), Headmaster of the school has stated on the basis of the school admission register (Pravesh Panji) that on 12.7.1996, the prosecutrix was admitted in the school in 7th Standard. Earlier she was admitted in the school situated at Karhi Bhadar and on the basis of the transfer certificate issued by that school, they had admitted her in their school and her date of birth was entered as 7.2.1984. In paragraph 3 of his cross-examination, he has admitted that he did not know on what basis the date of birth of the prosecutrix was recorded in the school where she was admitted in 1st Standard. 9. Dr. Shashi Cladius (PW9), who medically examined the prosecutrix, has stated that in her report (Ex.P10A), she had opined that the age of the prosecutrix was 15 to 17 years, however she had advised for ossification test of the prosecutrix. But, no ossification test of the prosecutrix was conducted by the prosecution. From the above, it is clear that apart from the marksheet, no other document regarding age or date of birth is available. Parents of the prosecutrix have also not been examined. Vimlabai (PW2), sister of the prosecutrix has also not stated date of birth of the prosecutrix. On what basis the date of birth of the prosecutrix was recorded in the school at the time of admission of the prosecutrix has also not been established and who made the entry of date of birth of the prosecutrix has also not been examined by the prosecution. As opined by Dr. Shashi Cladius (PW9), age of the prosecutrix was 15 to 17 years. Even after her advice, no ossification test of the prosecutrix was conducted by the prosecution. Therefore, from the evidence adduced by the prosecution, age of the prosecutrix was below 16 years is not established. 10. With regard to the alleged incident, the case of the prosecution is based on the statements of the prosecutrix (PW1), Vimlabai (PW2), sister of the prosecutrix and Udhoram (PW3), jija (brother-in-law) of the prosecutrix. 11. The prosecutrix (PW1) has deposed that on the date of incident at about 12 noon, when she was alone at her house, the Appellant came there and knocked the door of the house. 11. The prosecutrix (PW1) has deposed that on the date of incident at about 12 noon, when she was alone at her house, the Appellant came there and knocked the door of the house. She opened the door. He asked her who is present at the house. She told him that she was alone. He had come to give voter-slip for the election. After giving her the voter-slip, he took her inside the room. He caused her to fall down on a cot. He gagged her mouth with a bed-sheet. He removed her underwear. When she tried to shout, he told her that he will press her neck. Therefore, due to fear, she did not shout. She has further stated that he forcibly committed sexual intercourse with her. She smeared with blood. The clothes were also tainted with blood. Thereafter, the Appellant went way from there. At about 1:00 p.m., her jija Udhoram (PW3) came there. She, weeping, opened the door of the house. At that time, she did not tell him anything about the incident. Thereafter, Udhoram returned. At about 1:30 p.m., her sister Vimlalbai (PW2) reached home. She told her about the incident. In cross-examination, she has stated that she was smeared with blood, therefore, she did not come out and told about the incident to anyone. She also did not tell about the incident to the wife of her neighbour Khilawan. In paragraph 21, she has stated that due to election, the police party had come to the village, but she did not tell them anything about the incident. In paragraph 17, she has stated that no sexual intercourse was done with her before the incident. 12. Vimlabai (PW2), sister of the prosecutrix has stated that she had gone to the agricultural field. When she returned home at about 1:30 p.m., the prosecutrix told her about the incident. She saw that bed was smeared with blood. Sameez and skirt of the prosecutrix were also smeared with blood. She has further stated that she had told about the incident to her husband Udhoram (PW3). Her husband, searching for the Appellant, went out of the house. The Appellant was found at the house of Domar. The Appellant admitted his guilt in front of all the persons present there. 13. She has further stated that she had told about the incident to her husband Udhoram (PW3). Her husband, searching for the Appellant, went out of the house. The Appellant was found at the house of Domar. The Appellant admitted his guilt in front of all the persons present there. 13. Udhoram (PW3), jija (brother-in-law) of the prosecutrix has stated that when he returned home at about 1:15 p.m., his wife Vimlabai (PW2) told him that the Appellant had entered the house and committed rape with the prosecutrix. Then he went to the parents of the Appellant to tell them about the incident. He told the parents of the Appellant about the incident. The Appellant admitted his guilt and apologised for the guilt by touching his feet. 14. Head Constable Kapishwar Singh (PW6) is the witness who lodged the FIR (Ex.P1) and seized sameez and skirt of the prosecutrix vide Ex.P2 in which blood stains were present. 15. Kotwar Mayaram (PW4) has stated that in his presence vide seizure memo (Ex.P2), sameez and skirt of the prosecutrix, which were smeared with blood stains, were seized and kathari, which was also smeared with blood stains, was seized vide Ex.P5. 16. The seized sameez, skirt and kathari were examined by Dr. Shashi Cladius (PW9). She found 11 blood like spots on the skirt, 24 blood like spots on the sameez and 6-7 blood like spots on the kathari. Her reports are Ex.P11A and P12A. She has admitted the fact that trace of the blood stains could be determined whether they were of human blood or of any animal blood by FSL examination. The FSL report (Ex.P13) is positive in respect of sameez of the prosecutrix, but with regard to other clothes, the report is negative. 17. Dr. Shashi Cladius (PW9) also examined the prosecutrix on 25.11.1998. She has stated that her report is Ex.P10A in which she found that the prosecutrix had not suffered any injury on her body nor on her private part. No swelling or injury or redness was present on the private parts labia majora or labia minora. Hymen was old ruptured. 2 fingers were easily being inserted into the vagina of the prosecutrix. The prosecutrix was found to be habitual to sexual intercourse. No definite opinion could be given regarding recent sexual intercourse with her. No swelling or injury or redness was present on the private parts labia majora or labia minora. Hymen was old ruptured. 2 fingers were easily being inserted into the vagina of the prosecutrix. The prosecutrix was found to be habitual to sexual intercourse. No definite opinion could be given regarding recent sexual intercourse with her. In paragraph 8, she has categorically stated that the prosecutrix was habitual to sexual intercourse and she had already undergone sexual intercourse many times. No injury was found on her private part, either internal or external. 18. Station House Officer T.R. Kanwar (PW8) was the Investigating Officer of the offence in question. He has stated that he investigated into the offence and during the investigation, he seized kathari and mark-sheet vide Ex.P5. He prepared spot-map (Ex.P3). He also seized pant and underwear of the Appellant vide Ex.P7 and recorded statements of witnesses under Section 161 of the Code of Criminal Procedure. 19. On minute examination of the above evidence, it is clear that though the prosecutrix has stated that the Appellant had committed rape with her after entering her house, her statement does not inspire confidence of this Court because as stated by her, she did not know the Appellant from before. The Appellant had come to her house for giving voter-slip in respect of election. The incident took place at about 12 noon. In these circumstances, an unknown person would enter the house of the prosecutrix and commit rape with her appears to be suspicious. Furthermore, as stated by the prosecutrix, no sexual intercourse was done with her before the incident. When the Appellant committed rape with her, she suffered excessive bleeding and blood smeared over the kathari spread over the bed as also over her sameez and skirt. The sister and brother-in-law of the prosecutrix have also supported the version of the prosecutrix. Dr. Shashi Cladius (PW9), who examined the skirt, sameez and kathari and gave her reports Ex.P11A and P12A, found 11 blood like spots on the skirt, 24 blood like spots on the sameez and 6-7 blood like spots on the kathari. But, as stated by Dr. Shashi Cladius (PW9), in her report Ex.P10A, she found the prosecutrix to be habitual to sexual intercourse. But, as stated by Dr. Shashi Cladius (PW9), in her report Ex.P10A, she found the prosecutrix to be habitual to sexual intercourse. She did not find any injury over the private part of the prosecutrix either internal or external nor did she find any injury over any other part of her body. In these circumstances, if blood stains were found on the kathari, skirt and sameez, it does not appear to be natural. There is possibility that the prosecutrix and her sister and brother-in- law, with an intent to falsely implicate the Appellant, would have smeared the said 3 clothes with blood stains. 20. With regard to extra judicial confession of the Appellant, though Vimlabai (PW2), sister of the prosecutrix and Udhoram (PW3), brother-in-law of the prosecutrix have stated that when Udhoram had gone to the house of the Appellant, at that time, the Appellant, in presence of his parents and other villagers, had told that ^^gka eSaus xyrh dh gS** and he had apologised by falling down on the feet of Udhoram, who were the villagers present at that time, their names have not been disclosed by Udhoram nor has the prosecution examined them. Merely because the Appellant admitted that he had committed mistake, it cannot be treated to be his extra judicial confession admitting commission of rape by him with the prosecutrix. Therefore, this confessional statement also does not support the case of the prosecution. From the above discussion, it is clear that the prosecution has not been able to prove its case beyond reasonable doubt. Therefore, the Appellant is entitled to get benefit of doubt. 21. Consequently, the appeal is allowed. The impugned judgment of conviction and sentence is set aside. The Appellant is acquitted of the charges framed against him. 22. It is reported that the Appellant is on bail. His bail bonds shall continue for a further period of six months from today in terms of the provisions contained in Section 437A of the Code of Criminal Procedure. 23. Record of the Court below be sent back along with a copy of this judgment forthwith for information and necessary compliance.