JUDGMENT : Assailing the judgment and order dated 09.01.2018 passed by the Court of the III Additional District and Sessions Judge, Kodagu, at Madikeri, in S.C.No.37/2014 convicting and sentencing the accused/appellant for offences punishable under Sections 506 and 376 of IPC and Section 3 read with Section 25(1B) of the Arms Act, 1959, the accused has preferred this appeal. 2. I have heard the learned counsel for appellant, the learned High Court Government Pleader for respondent/State and perused the material on record. 3. Brief facts of the prosecution case are as under: The victim/first informant (PW-1) is a resident of Garwale village in Somwarpet taluk, Kodagu district. Accused was sending messages from his mobile phone to the mobile phone of the victim. Initially, he used to send decent messages to her. Thereafter, he started sending vulgar messages. He got deleted the messages sent by him and preserved the messages received from the victim and started threatening her saying that if she did not listen to him, he will inform the matter to her husband and also kill her. On 30.07.2013 at about 9.30 p.m., when the victim was in her house along with her son (PW-8), accused entered her house from the back door, holding a gun. He threatened her showing the gun and dragged her to the front room of the house and pushed her on the cot and committed forcible sexual intercourse with her. 4. Complaint was lodged by the victim as per Ex.P.1. The PSI of Somwarpet police station, (PW13) registered the case and issued FIR/Ex.P.13 to the jurisdictional Magistrate. Accused was arrested and produced before the CPI/PW-14. The voluntary statement of the accused was recorded as per Ex.P.15. Spot mahazar and rough sketch were prepared as per Ex.P.2 and Ex.P.16. The gun (M.O.2) was seized at the instance of the accused under Ex.P.3. The mobile phone (M.O.1) belonging to the victim/PW-1 to which the accused was sending messages was seized under Ex.P.5. The victim was referred for medical examination and she was examined by PW-11, who collected the specimens which were sent for chemical analysis. After receipt of the RFSL report marked as Ex.P.11, PW-11 gave opinion as per Ex.P.12. Further investigation was taken over by CPI/PW-15. After receipt of the report/Ex.P.11 and opinion from the doctor marked as Ex.P.12, he filed charge-sheet. 5. After receipt of the RFSL report marked as Ex.P.11, PW-11 gave opinion as per Ex.P.12. Further investigation was taken over by CPI/PW-15. After receipt of the report/Ex.P.11 and opinion from the doctor marked as Ex.P.12, he filed charge-sheet. 5. Charges were framed against the accused for offences punishable under Sections 506 and 376 of IPC and Sections 3 and 27 of the Arms Act. 6. To establish the guilt of the accused, prosecution got examined PWs-1 to 15 and got marked Ex.P.1 to Ex.P.16 and M.Os.1 and 2. 7. The accused denied the incriminating evidence appeared against him, while recording his statement under Section 313 of Cr.P.C. However, he did not lead any evidence on his behalf. 8. The learned Sessions Judge convicted the accused for the offences punishable under Sections 506 and 376 of IPC and Section 3 read with Section 25(1B) of the Arms Act. The accused was acquitted of the offence punishable under Section 27 of the Arms Act, 1959. 9. Amongst the prosecution witnesses, PWs3, 4 and 9 have completely turned hostile and PWs-2 and 5 are treated partly hostile. The prosecution has mainly relied on the evidence of PW-1 (victim), PWs-7, 8 and 10 to prove the charges leveled against the accused. 10. It is the specific case of the prosecution that the accused was sending messages to PW-1 from his mobile phone to her mobile phone and initially, he was sending decent messages and thereafter, started sending vulgar messages. He retained the messages sent by the victim and started threatening her saying that he will inform the matter to her husband, if she did not listen to him. On 30.07.2013 at about 9.30 p.m., he went to the house of victim holding a gun belonging to his father and entered the house from the back door and by showing the gun to the victim, threatened her and dragged her into the front room of the house and committed rape on her. 11. PW-1 has deposed in her evidence that on 30.07.2013 at about 9.30 p.m., when she was preparing food in the kitchen, accused entered the house through back door. On seeing the accused holding a gun, she cried. 11. PW-1 has deposed in her evidence that on 30.07.2013 at about 9.30 p.m., when she was preparing food in the kitchen, accused entered the house through back door. On seeing the accused holding a gun, she cried. The accused showed the gun and threatened her with dire consequences and then caught hold of her hand and dragged her to the front room and he kept the gun near the wall adjacent to the cot and committed forcible intercourse on her. She has further deposed that her son (PW-8) was present in the house and he has witnessed the incident. While going, the accused threatened to kill her and her children and because of the criminal intimidation, she did not inform the incident to her husband. 12. It is pertinent to see that in the complaint at Ex.P.1, she has alleged that accused was sexually abusing her since July by threatening her and when her husband was in Mangalore, he came to her house in the night, when she was alone and showing the gun committed rape on her. Since she was scared, she did not inform the incident to others. She has stated that the accused was initially sending formal messages and on 11th August, the message sent by him mistakenly gone to the mobile phone of B.A.Shivakumar (PW-10), which came to the knowledge of her husband. 13. In the chief examination, PW-1 has stated that in the second week of July 2013, the accused sent message as “can I come to do intercourse” and further the message “husband gone back” gone to the mobile phone of her neighbour, B.A.Shivakumar (PW-10). On 02.09.2013, her husband had gone to the fair at Somwarpet. PW-10 who met her husband there, informed him regarding the message and showed the filthy message sent by the accused to him. Thereafter, her husband enquired with her about the message and she narrated the incident to him. On 04.09.2013, she along with her husband went to Somwarpet police station and she narrated the incident to the Sub-Inspector. They were sent back without receiving the complaint. Then they prepared a typed complaint and approached the Superintendent of Police and as per the instructions of Superintendent of Police, they went back to Somwarpet police station, wherein the CPI asked her to give another complaint. As per her instruction, her husband wrote the complaint. They were sent back without receiving the complaint. Then they prepared a typed complaint and approached the Superintendent of Police and as per the instructions of Superintendent of Police, they went back to Somwarpet police station, wherein the CPI asked her to give another complaint. As per her instruction, her husband wrote the complaint. The said complaint was lodged on 10.09.2013. 14. The learned counsel for appellant has contended that the entire allegations are false and accused is innocent of the offences alleged against him. It is contended that even according to the victim, the accused was having sexual intercourse with her since July and he was sending obscene messages. He contends that there was ample opportunity for the victim to inform the incident to others including her husband. He contends that only when the message sent by the accused was received by PW-10, who informed the matter to victim’s husband, due to ill-will, a false case has been registered against the accused. It is his further contention that there is no material to show that the accused was sending obscene messages to the victim. He would contend that the mobile phones of the accused and PW-10 are not seized to prove the same and there is no incriminating material found in the mobile phone of the victim which was seized. 15. The learned counsel for appellant has further contended, in the FIR it is not averred that victim’s son (PW-8) is an eyewitness to the incident. It is his contention that the statement which is marked by the defence as per Ex.D.1, shows that he was sleeping in the house and therefore, he being an eyewitness is unbelievable and it is a concocted story. 16. The learned counsel for appellant has also drawn the attention of the Court to the cross-examination of PW-1, wherein she has admitted that both her husband and accused knew each other very well since they belong to the same family and both of them used to visit the house of accused whenever there was any function. It is elicited in the cross-examination of PW-1 that the accused is a Member of Garwale Gram Panchayat from JDS party and PW-1 and her husband support BJP Party. The learned counsel would therefore contend that in order to remove accused from the post of President of Gram Panchayat, a false complaint was lodged. 17. It is elicited in the cross-examination of PW-1 that the accused is a Member of Garwale Gram Panchayat from JDS party and PW-1 and her husband support BJP Party. The learned counsel would therefore contend that in order to remove accused from the post of President of Gram Panchayat, a false complaint was lodged. 17. The learned counsel for appellant has also contended that evidence of the prosecutrix is not trustworthy and believable and her evidence is not corroborated by any other acceptable evidence including the medical evidence. He, therefore, contends that the learned Sessions Judge was not justified in convicting the accused, placing reliance on the untrustworthy and highly interested testimony of the prosecution witnesses. 18. The learned High Court Government Pleader, on the other hand, has contended that the evidence of prosecutrix inspires confidence and appears to be natural and truthful and in the case on hand, her evidence is further corroborated by the evidence of her son/PW-8, who is an eyewitness. He contends that the discrepancy, if any, does not go to the root of the prosecution case so as to disbelieve the entire incident and the learned Sessions Judge after appreciating the entire evidence and material on record has rightly convicted the accused. Therefore, he contends that there is no illegality committed by the learned Sessions Judge and accordingly, he has sought to dismiss the appeal. 19. The learned Sessions Judge was of the view that the evidence of PW-1 is fully corroborated with the evidence of PW-8, who is her minor son and the delay in lodging First Information Report is explained by the prosecution. It is observed that the evidence of PWs-1 and 8 has not been diluted during their cross-examination with regard to the incident, and material on record show that there are no houses around the house of PW-1. Both PWs-1 and 8 have stated that they have shouted for help when the accused was dragging PW-1 into the front room. The house of PW-1 is situated in interior place in a village and therefore, nobody can make out if somebody enters her house. Both PWs-1 and 8 have stated that they have shouted for help when the accused was dragging PW-1 into the front room. The house of PW-1 is situated in interior place in a village and therefore, nobody can make out if somebody enters her house. It is further observed that many aspects stated by PWs-1, 7 and 8 are not forthcoming in the First Information Report, but the FIR is not an Encyclopedia and merely because the evidence of prosecutrix is not fully contained in Ex.P.1, it cannot be said that there are improvements or contradictions with regard to material particulars. 20. It is pertinent to see that in Ex.P.1, the prosecutrix has not stated that at the time of incident, either her son was present in the house or he too witnessed the incident. On the other hand, in Ex.P.1, she has stated that when her husband was away in Mangalore and when she was alone in the house, accused entered the house holding a gun and committed forcible sexual intercourse. It is pertinent to see that PW-1 in her evidence has deposed that on 02.09.2013 when PW-10 met her husband, he informed him about the message received by him and thereafter, her husband enquired with her and they went to the police station on 04.09.2013 and narrated the incident to the police. They were sent back without receiving the complaint and thereafter, they met the Superintendent of Police, Madikeri, on 10.09.2013 and as per his instruction went to the police station and lodged the complaint. Therefore, if really her son had witnessed the incident, there was ample time for the complainant to inform the police or to mention in the complaint that the incident was witnessed by her son. When the prosecution has projected her son (PW-8) as an eyewitness to the incident to establish its case, then the same has to be established without giving any room for doubt regarding the genuineness of the prosecution case. 21. PW-8, was aged about 8 years at the time of incident in question. He has deposed that on 30.07.2013 at about 9.30 p.m., he was doing his homework by sitting in the middle room of his house and his mother was cooking food in the kitchen. 21. PW-8, was aged about 8 years at the time of incident in question. He has deposed that on 30.07.2013 at about 9.30 p.m., he was doing his homework by sitting in the middle room of his house and his mother was cooking food in the kitchen. The accused came from the back door holding a gun and his mother shouted for help and he saw the accused holding a gun in his hand and pulling his mother forcibly and taking her to the front room of the house and committing forcible sexual intercourse. He has stated that since he was scared, he went and sat in the middle room of the house. In the cross-examination, it is elicited that his father was staying in Mangaluru and his sisters were studying at Madikeri. His father used to visit the house once in a month. He has stated that since he was scared, he pretended to have slept. 22. The further statement of PW-1 was recorded on the next day of lodging the complaint i.e., on 11.09.2013. In the said statement, though she has stated that her son was present in the house, however, the defence has got marked Ex.D.1, wherein she has categorically stated that her son was sleeping in the middle room of the house. The statement of PW-8 has been marked as Ex.D.2. wherein, he has stated that the incident was narrated to him by his mother. He has not stated about witnessing the accused committing the offence. From the above material, a reasonable doubt arises in the mind of the Court about PW-8 being an eyewitness to the incident. 23. The gun/M.O.1 alleged to have been used by the accused has been seized under a mahazar, Ex.P.3. Admittedly, the said gun belong to father of the accused. He has been examined as PW-2. PWs-4 and 5 are the recovery panchas. PW-2 has stated that the police seized his gun under Ex.P.3 and the said gun stands in his name. He has denied the statement given to the police and therefore, he was treated hostile. He has denied that the accused was present at the time of seizure of gun from his house. He has stated that the accused never used his gun and he never permitted him to use the gun. He has denied the statement given to the police and therefore, he was treated hostile. He has denied that the accused was present at the time of seizure of gun from his house. He has stated that the accused never used his gun and he never permitted him to use the gun. He has stated that he was in Army and served for 15 years and he uses his gun for his security and not for hunting. In the cross-examination by the defence, he has stated that there is enmity between himself and CW-7 (PW-7) and he had lodged a complaint against him and in the said case, the gun belonging to PW-7 was also seized. 24. PWs-4 and 5 are the panch witnesses to the seizure of gun. PW-4 has turned hostile, PW-5 has stated that police called him to come to the house of Ramappa and therefore, he went there and signed the document (Ex.P.3). He has stated, accused was sitting in the police Jeep. 25. In the case on hand, the prosecutrix was examined by the doctor, PW-11 on 11.09.2013. He has given his opinion as per Ex.P.12 after receiving the RFSL report as per Ex.P.11. According to the said opinion, Ex.P.12, there is no evidence to suggest that recent sexual intercourse has taken place. The presence of seminal stain was not detected in the items sent for chemical analysis. PW-11 has opined that it is not possible to say medically whether there was sexual intercourse two months’ back except pregnancy, since she is a multiparous woman. According to prosecution, the incident took place on 30.07.2013. The prosecutrix was examined by the doctor on 11.09.2013. The learned Sessions Judge is right in observing that since there is a time gap of about two months, it is quite natural that the medical evidence does not support the case of prosecution. However, the learned Sessions Judge has proceeded to hold that the reliable and corroborative evidence of PWs-1, 7, 8 and 10 cannot be discarded. 26. Having carefully examined the evidence on record, it is seen that the evidence of PW-8, minor son of the victim is not trustworthy and this Court finds that his evidence cannot be acted upon and hence, it cannot be said that the evidence of PW-1 is corroborated by the evidence of PW-8. 26. Having carefully examined the evidence on record, it is seen that the evidence of PW-8, minor son of the victim is not trustworthy and this Court finds that his evidence cannot be acted upon and hence, it cannot be said that the evidence of PW-1 is corroborated by the evidence of PW-8. The evidence of PWs-7 and 10 is not helpful for the prosecution to establish that the accused has committed forcible intercourse on PW-1 on the night of 30.07.2013. The medical evidence does not support the case of prosecution and therefore, the only evidence which is available with regard to incident of rape is that of the prosecutrix, PW-1. 27. The specific case of the prosecution is that the accused was sending obscene messages to the prosecutrix and he retained the messages sent by PW-1 and he was threatening her with dire consequences, saying that he will inform her husband etc., It is also the case of prosecution that the message sent by accused to PW-1, was sent to the mobile phone of PW-10 by mistake. However, for the best reasons known, the mobile phones of the accused or PW-10 are not seized in this case. The mobile phone (M.O.1) of the prosecutrix was seized but there is no incriminating material found. Therefore, there is no cogent material placed to show that the accused was sending messages to the prosecutrix, except the oral evidence. Even if the said evidence is accepted, the same is not sufficient to show that on the date of incident, accused barged into the house of PW-1 holding a gun and committed forcible sexual intercourse on her. 28. It is well settled that conviction can be based on the sole testimony of prosecutrix, provided that the evidence of prosecutrix inspires confidence and appears to be natural and truthful. In case of any doubt arises regarding the version of the prosecutrix, the Court can look for corroboration of her version. The Court has to be convinced about the truthfulness of the prosecutrix and there should not exist any circumstance which casts a shadow of doubt over her veracity. 29. In the instant case, the incident has taken place on 30.07.2013 at about 9.30 p.m. in the house of the prosecutrix. Complaint is lodged on 10.09.2013. In Ex.P.1, the victim has stated that since July, the accused used her sexually. 29. In the instant case, the incident has taken place on 30.07.2013 at about 9.30 p.m. in the house of the prosecutrix. Complaint is lodged on 10.09.2013. In Ex.P.1, the victim has stated that since July, the accused used her sexually. According to her, message sent to her by the accused went to the mobile phone PW-10 by mistake and thereafter, he informed the matter to her husband. Only after her husband enquired with her, she narrated the incident to him. Though, she has stated that the accused used to threaten her saying that he will inform the matter to her husband as he had retained her messages in his mobile phone but mobile phone of the accused or mobile phone of PW-10 are not seized. There is no incriminating material found in the mobile phone of PW-1. In her evidence, she has deposed that complaint was given to the police on 04.09.2013 but the said complaint was not received. Thereafter, they visited the office of Superintendent of Police on many occasions. Further, PW-7 and herself met the Superintendent of Police on 10.09.2013 and she gave a complaint, which was referred to Somwarpet police station, with an instruction to register the FIR. The said complaint was a typed complaint. So from her evidence, it can be seen that only after her husband enquired about the message received by PW-10 and after he enquired with her, she narrated the incident and subsequently, the complaint came to be lodged. 30. In the cross-examination, it is elicited from PW-1 that there are about 22 houses situated in and around her house. She has admitted that accused is related to her husband and she knows him. Her husband is working as Gunman in Mangalore and he used to visit the house during summer and he was coming rarely during rainy season. She has also stated that the accused and her husband belong to different political party. Though, she has denied that the relationship between her husband and accused was strained, she has admitted that the accused was removed from the post of president of Gram Panchayat after she lodged the complaint against him. She has admitted that even after the accused had forcible sexual intercourse with her on 30.07.2013, he continued to send messages on her phone and she used to reply to him. 31. She has admitted that even after the accused had forcible sexual intercourse with her on 30.07.2013, he continued to send messages on her phone and she used to reply to him. 31. Having carefully examined the entire evidence and material on record, I am of the considered view that evidence of PW-1 that accused committed forcible sexual intercourse by threatening her, does not inspire confidence and does not appear to be natural and truthful. The prosecution has therefore, failed to establish beyond reasonable doubt that the accused has committed forcible sexual intercourse on PW-1 by showing the gun and by criminally intimidating her. The evidence and material on record is not sufficient to hold the accused guilty of the charged offences. The impugned judgment and order passed by the learned Sessions Judge is therefore not sustainable in law and the same is liable to be set aside. 32. Accordingly, the following: ORDER (i) Appeal is allowed. (ii) The judgment and order dated 09.01.2018 passed in Sessions Case No.37/2014 by the III Addl. District and Sessions Judge, Kodagu at Madikeri, is hereby set aside, (iii) The accused/appellant is acquitted of the offences punishable under Sections 506 and 376 of IPC and Section 3 read with Section 25 (1B) of the Arms Act, (iv) He shall be set at liberty, if not required in any other case, (v) The registry shall communicate the operative portion of the judgment to the concerned jail authority.