JUDGMENT : This appeal is filed by the sole accused against the Judgment of conviction dated 30.07.2014 and order of sentence dated 31.07.2014 passed by the District and Sessions Judge, Uttara Kannada, Karwar (for short ‘Sessions Judge’), in Sessions Case No.43/2009 convicting him for the offences punishable under Section 376 of IPC and sentencing him to undergo rigorous imprisonment for seven years and to pay fine of Rs.50,000/-. 2. The case of the prosecution is that, the complainant/victim i.e. P.W.13 aged about 29 years and her husband i.e. P.W.14 are from Brisbrain, Australia and the couple were on tour to India and they had come to Gokarna and staying in a cottage at Paradise Beach, belonging to P.W.9 Muralidhar Kamat. It is the further case of prosecution that, on 07.03.2009 in the midnight while the victim was asleep in the cottage, the accused entered into the cottage and removed her panty and committed rape on her. Hence, she lodged a complaint before the Gokarna Police on 07.03.2009 at about 10.30 p.m. Based on the said complaint, Gokarna Police registered a case in Crime No.10/2009 dated 07.03.2009 as per Ex.P.19 and investigated the case by conducting spot panchanama and arresting the accused on the same day i.e. on 07.03.2009. After investigation, charge-sheet came to be filed against the accused for the offence punishable under Section 376 of IPC. On committal of the case to the Sessions Court, the appellant/accused pleaded not guilty for the charges leveled against him and claimed to be tried. 3. In order to bring home the guilt of the accused for the charges leveled against him, the prosecution examined 19 witnesses i.e. P.W.1 to P.W.19 and reliance placed documentary evidence at Ex.P.1 to Ex.P.22. Apart from denying all the incriminating circumstances appeared against the accused in the evidence of the prosecution witnesses, the accused by way of defence got marked two documents i.e. Ex.D.1 and Ex.D.1(a). The defence of the accused was one of the total denial and that of false implication in the case. 4. After hearing the learned counsels from both sides, the Sessions Judge by considering the materials and the evidence available on record has passed the Judgment holding that, the accused has committed rape on P.W.13 by entering the cottage. In that view of the matter, the learned Sessions Judge convicted the appellant/accused for the aforesaid offence. 4. After hearing the learned counsels from both sides, the Sessions Judge by considering the materials and the evidence available on record has passed the Judgment holding that, the accused has committed rape on P.W.13 by entering the cottage. In that view of the matter, the learned Sessions Judge convicted the appellant/accused for the aforesaid offence. Aggrieved by the said Judgment of conviction and order of sentence, the accused is in appeal before this Court. 5. Heard Sri S.S.Patil, learned counsel for the appellant and Sri. V.S.Kalasurmath, learned HCGP for the respondent-State. 6. Learned counsel for the appellant vehemently contended that, the Judgment under appeal suffers from perversity and illegality inasmuch as the learned Sessions Judge has failed to notice that, the evidence of P.W.13 and 14 does not inspire the confidence of the Court as it is highly inconsistent and discrepant. He further contended that, except P.W.13 and her husband P.W.14, all other witnesses have turned hostile to the prosecution case. Even otherwise by perusal of the evidence of P.W.13, her evidence cannot be believed at any stretch of imagination for the reason that without her consent and knowledge while she was asleep, the accused had sexual act with her and she was under the impression that, her husband has committed the sexual act on her. Hence, according to the learned counsel, her version does not inspire confidence to rely and the learned Sessions Judge wrongly convicted the accused for the offence punishable under Section 376 of IPC. 7. Learned counsel would further contend that, P.W.14, her husband though supported the case of the prosecution, nevertheless, he is a hearsay witness to the incident. According to him, after the incident by hearing the hue and cry of his wife he came to the spot and at that time, the accused was already escaped from the spot. As such, much evidentiary value cannot be attached to the evidence of P.W.14. 8. Learned counsel would contend that, since the victim was aged about 28 years and the Doctor who examined the victim P.W.5 categorically admitted in her evidence that, there was no sign of recent sexual intercourse on the victim as per Ex.P.6 certificate. As such, the version of P.W.13 has not corroborated with the evidence of the Doctor and the certificate at Ex.P.6. Hence, learned Sessions Judge has totally erred in convicting the accused. As such, the version of P.W.13 has not corroborated with the evidence of the Doctor and the certificate at Ex.P.6. Hence, learned Sessions Judge has totally erred in convicting the accused. Hence, learned counsel prays to set aside the Judgment passed by the learned Sessions Judge and prays to acquit the accused. 9. Per contra, learned HCGP sought to justify the Judgment under appeal and contended that, the Judgment does not suffer from any perversity or illegality since the learned Sessions Judge on proper appreciation of oral and documentary evidence has recorded the findings which are sound and reasonable regard being heard to the evidence on record, therefore, it does not call for interference by this Court. He would further contend that, P.W.13 the victim has categorically stated the alleged incident of rape committed by the accused on her on 07.03.2009 and to that effect, the victim immediately lodged the complaint which came to be registered by the said police in Crime No.601/2009. According to the learned HCGP, her version was supported by the evidence of P.W.14 who is none other than her husband. P.W.14 immediately visited the spot by hearing the hue and cry of his wife. While he so reached to the spot, the accused ran away from the spot. As such, according to the learned HCGP, there is no reason to disbelieve the version of P.W.13 and P.W.14. He would further contend that, though the medical evidence not supported the version of P.W.13, nevertheless, the evidence of the victim cannot be discarded as per the settled position of law by the Hon’ble Apex Court. As such, the Sessions Judge has justified in convicting the appellant, therefore, he sought for dismissal of the appeal. 10. In the facts of the case and in the light of the submissions made on both sides, the points that would arise for my consideration are : (i) Whether the Judgment under appeal suffers from any perversity or illegality, warranting interference by this Court ? (ii) Whether the learned Sessions Judge has justified in convicting the appellant/accused for the offence punishable under Section 376 of IPC ? 11. I have bestowed my anxious consideration to the submission made by the learned counsel appearing on both sides and carefully perused the records secured from the trial Court and also the reasoning adopted by the learned Sessions Judge. 12. 11. I have bestowed my anxious consideration to the submission made by the learned counsel appearing on both sides and carefully perused the records secured from the trial Court and also the reasoning adopted by the learned Sessions Judge. 12. This Court being the appellate Court, reappreciation of entire evidence on record is very much required. On a cursory glance of the evidence deposed before the trial Court, P.W.1 – Narayan is the witness for Ex.P.1 the spot panchanama. The said witness identified his signature on Ex.P.1, however denied the contents of Ex.P.1, as such, he has been treated as hostile witness to the prosecution case. P.W.2 is the witness for the spot mahazar as per Ex.P.1 and recovery mahazar i.e. Ex.P.2. Though this witness identified his signature on Ex.P.1 and Ex.P.2 respectively, but he denied the contents of Ex.P.1 and E.x.P.2. As such, he treated as hostile to the prosecution case. P.W.3 is the Doctor who examined the accused in this case, and issued certificate as per Ex.P.3. According to him, the accused is capable of performing sexual Act. P.W.4 Dr. Anand who initially examined the victim and issued certificate as per Ex.P.4 and thereafter she referred the victim to P.W.5 for further examination. P.W.5 Dr. Asha Bhat who examined the victim and issued certificate as per Ex.P.6. According to her there was no sign of recent sexual intercourse on the victim. P.W.6, P.W.7 and P.W.8 are the circumstantial witnesses in respect of the incident all are turned hostile to the prosecution case. All the above witnesses have accommodated the victim and P.W.14 at Gokarna Beach. P.W.9 i.e. Muralidhar is the owner of the Hotel namely Kaplay Paradise at Paradise Beach. He is a hearsay witness in respect of the alleged incident and also a witness for Ex.P.1 the spot mahazar. P.W.10 is a circumstantial witness, who turned hostile to the prosecution case. P.W.11 is a hearsay witness and stated that, he came to know about the alleged sexual act by the accused to the victim through somebody. P.W.12 Dr. Gajanan Hosbanna Nayak issued Ex.P.11 certificate by examining the accused. P.W.13 is the victim in this case. She has stated that, she along with her husband/C.W.13 was on a tour from October, 2008 till March 2009 to India. P.W.12 Dr. Gajanan Hosbanna Nayak issued Ex.P.11 certificate by examining the accused. P.W.13 is the victim in this case. She has stated that, she along with her husband/C.W.13 was on a tour from October, 2008 till March 2009 to India. On 01.03.2009 in the evening she along with her husband had been to Gorkarna and stayed in Café Paradise Hotel, Hut No.9, Paradise Beach, Gokarn. On 7th March, at about 1.00 a.m. in the early morning the incident has occurred. On that day she was alone in the hut and her husband was sleeping outside the hut about a meter away. She states that, she has seen the accused before the Court along with his two friends on Paradise Beach on 06.03.2009 in the afternoon. When she was sleeping in the hut on 07.03.20098 at about 1.00 in the morning, she saw the accused on her and without her consent he penetrated his organ in her vagina. When she awaken and put her hands on his head, the said person had short hairs, as her husband’s hairs were long and she came to know that, the person who is having sex with her, is not her husband. On that day, as there were two candles lit in the hut, and a camp lamp in the hut and there were lights by the side of the hut, she could not recognize the accused during the incident. Immediately, when she came to know that, he is not her husband, she pushed him aside and screamed for help. She states that, she woken up, saw her private part having semen and it was wet, the accused has removed her underwear and her vaginal area was swollen due to the impact. She states that, the accused had removed her underwear before penetration. When she screamed for help the accused ran away and at that time, he jumped over her husband who was out side the hut. She states that, the accused was wearing a blue shirt having collar. Thereafter, her husband came inside the hut. She told that, the accused raped her forcibly. He has also seen her private part. Her husband went outside in search of the accused and informed said incident to the owner of the hut. In front of their hut, a Russian person along with his girl friend was staying. Thereafter, her husband came inside the hut. She told that, the accused raped her forcibly. He has also seen her private part. Her husband went outside in search of the accused and informed said incident to the owner of the hut. In front of their hut, a Russian person along with his girl friend was staying. The police had been to the scene early in the morning after the sunrise. She lodged a police complaint at about 10.00 a.m. in the morning. P.W.14 is the husband of the victim (P.W.13). He married the victim in the year 2005 at London. From October 2008 till the end of March, 2009 he along with his wife (victim) were on tour to India. During traveling, both had been to Gokarn on 1st of March, 2009. On 01.03.2009 he along with his wife had been to Gokarn and stayed in Café Paradise Hotel, Hut No.9, Paradise Beach, Gokarna. On 7th of March at about 1.00 in the morning the incident occurred. When his wife was sleeping in side the hut, on a mattresses, whereas, he was sleeping outside the hut about a meter away from the hut. On that day at 1.00 a.m. in the morning he heard his wife screaming, meanwhile a man jumped over him and ran away. He noticed that, the said person was wearing a blue color collar shirt. When he went inside the hut, his wife told that, she has been raped. He noticed semen on inner part of her both thighs. He stated that, his wife was frightened by the said incident. He went outside the hut. By the side of their hut, a Russian person along with his girl friend was staying there. He states that, his neighbours were also awakened by hearing the screaming voice and the owner of the said Hotel was also awaken by the incident. P.W.15 Dayanand R. Naik is the Assistant Executive Engineer of P.W.D, who prepared sketch of the spot as per Ex.P.16. P.W.16 Ganesh Krishna Gouda is the Police Constable, who carried FSL items from the Dy. Superintendent of Police office to FSL office. P.W.17 is the Police Constable who has also carried out FSL articles. P.W.15 Dayanand R. Naik is the Assistant Executive Engineer of P.W.D, who prepared sketch of the spot as per Ex.P.16. P.W.16 Ganesh Krishna Gouda is the Police Constable, who carried FSL items from the Dy. Superintendent of Police office to FSL office. P.W.17 is the Police Constable who has also carried out FSL articles. P.W.18 Kirankumar Naik is the then PSI of the Gokarna Police Station who received the complaint from the complainant and registered the case in Crime No.10/2009 on 07.03.2009 and thereafter arrested the accused and conducted the investigation in this case. P.W.19 is the Police Inspector i.e. Investigating Officer in this case, who completed the investigation and laid the charge-sheet before the jurisdictional Court. 13. By perusal of the above evidence, except the evidence of P.W.13 and P.W.14, there is no reliable evidence placed by the prosecution before the Sessions Court. Although P.W.13 is the victim in this case and deposed before the Court that, when she was asleep at about 1.00 a.m. in the morning she saw the accused penetrated her and when she was awakened and put her hands on his head, she felt that, the hairs of the said person was short, but her husband’s heirs were long. She came to know that, the person who was having sex with her is not her husband, as such, she screamed and at that time, her husband came and accused ran away from the spot. Though the said version of P.W.13 supported by P.W.14 i.e. her husband, admittedly the P.W.14 is a hearsay witness. He came to know about the incident through P.W.13. In the cross-examination, P.W.13 categorically admitted that, there are lot of huts around her hut during the time of incident and workers are engaged in the hotels. She further stated that, she has no idea whether there was electricity supply during the night in the said hotel and the police have not asked about the source of light. Further, she stated that she had worn MO1 to MO3 dresses. The accused had removed all those clothes at the time of committing sexual act on her. However, she did not woke up when he removed those clothes and after having penetration by the accused she was awaken and she did not had any injuries on her private part. Further, she stated that she had worn MO1 to MO3 dresses. The accused had removed all those clothes at the time of committing sexual act on her. However, she did not woke up when he removed those clothes and after having penetration by the accused she was awaken and she did not had any injuries on her private part. Further except her husband nobody came to the scene of occurrence on hearing her hue and cry. By perusal of this evidence of P.W.13, the same does not inspire confidence on this Court that the accused has committed forcible sexual act with her as deposed by her. There are not only material contradictions in her evidence, but also the manner in which the alleged incident has taken place as per the version of the prosecutrix, is not believable. 14. The Hon’ble Apex Court in the catena of Judgments has held that, though the sole testimony of the victim can be relied in a rape case, but in the same time her version must be trustworthy and unblemished and her evidence must be sterling quality i.e. should be of a very high quality, the same should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the person involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. My view is fortified by the Judgment rendered by the Hon’ble Apex Court in Rai Sandeep alisas Deepu Vs. State (NCT of Delhi), reported in (2012) 8 SCC 21 . On evaluating the evidence of P.W.13, it cannot be said that the evidence of the said witnesses reached the touch stone of the law laid down by the Apex Court in the above Judgment. Though P.W.14, reiterated the version of the victim P.W.13, he is none other than her husband and nevertheless, he is a hearsay witness. Hence, much evidentiary value cannot be attached to his version. None of the other witnesses supported the case of the prosecution either circumstantial witnesses or the witnesses for recovery of material objects and the spot panchanama in respect of their investigation. Hence, in that view of the matter, in my considered opinion, the trial Court has erred in convicting the appellant for the charges leveled against him. Accordingly, I answered the above points. Therefore, I proceed to pass the following: ORDER (i) The appeal filed by the appellant is allowed; (ii) The Judgment of conviction dated 30.07.2014 and order of sentence dated 31.07.2014 passed in Sessions Case No.43/2009 by the District and Sessions Judge, Uttara Kannada, Karwar is hereby set aside; (iii) The fine amount if any paid by the accused shall be returned to him, on proper identification.