JUDGMENT : RAMACHANDRA D. HUDDAR, J. 1. The appellant herein being the accused before the Prl. District and Sessions Judge, Chitradurga in Sessions case No. 53/2009 has questioned the judgment of his conviction and order of sentence dated 31.01.2011 by filing this appeal. 2. The parties are referred to as per their rank before the trial Court for the sake of convenience. PROCEEDINGS BEFORE THE TRIAL COURT: 3. That victim lady resident of Muttigarahally, Mysarahatty Village in Molakalmuru, as shown in the complaint, lodged a complaint at 7.00 p.m. on 10.09.2008 by appearing before the Molakalmuru Police Station stating that she is the housemaker residing with her husband and three children at the address stated in the complaint, and she is also an agriculturist. Her elder daughter Manjamma, who has delivered a child, is residing in her house. Her husband’s whereabouts were not known for the last one month prior to she filing complaint. 4. It is stated by the complainant that, at about 10.00-11.00 p.m. on 09.09.2008, when she was in her house, accused Bosaiah S/o. Sakre Mallaiah came on a motor cycle and told her that her husband was at a forest place and asked her to bring the dinner for him. The victim lady, believing the version of the accused, prepared the dinner, carried it in a tiffin box, and went along with the accused on his motorcycle. The accused took her towards Muttigarahally, Kamaralavalu, near Ballary Nursery in the forest area. Thereafter, he got down from the motorcycle and took her inside the forest, stating that her husband was in the said forest area. At about 11.30 p.m., by taking her inside the forest, He told the complainant that her husband was not there. By saying so, he dragged her and committed rape on her. He also gave a threat, stating that if she informs this fact, he will take her life. Thereafter, he ran away. As it was night time, she was unable to understand the road leading to her house. Because of that, she moved here and there and reached her house at 2 a.m. on 10.09.2008. As she was tired. Her son-in-law by name Gopala examined as PW-5, and her husband’s sister Gangamma examined as PW-4. enquired her. Thereafter, he ran away. As it was night time, she was unable to understand the road leading to her house. Because of that, she moved here and there and reached her house at 2 a.m. on 10.09.2008. As she was tired. Her son-in-law by name Gopala examined as PW-5, and her husband’s sister Gangamma examined as PW-4. enquired her. She revealed the fact of rape on her by the accused under the guise of taking dinner to her husband when she went along with the accused. This fact was also made known to her brothers. Her brothers took her to her father-in-law. She explained the aforesaid fact to him. As she is illiterate, she was informed to lodge a complaint. Accordingly, she lodged a complaint before the Molakalmuru Police Station, which was registered in Crime No. 110/2008 for the offence under Section 376 of IPC and criminal law was set in motion. 5. The Investigation Officer-Dr.M.Ashwini examined as PW-15, on taking up the investigation, went to the scene of the offence on 11.09.2008 and conducted the spot panchanama between 9.50 a.m. and 10 a.m. in the presence of panchas. She deputed her staff for the purpose of tracing the accused, who was caught in the government hospital by her staff. They produced him before her. PW-15, after the completion of the investigation, filed a charge sheet against the accused for the aforesaid offences. 6. Before the learned trial Court, to prove the case of the prosecution, in all, it examined 16 witnesses and got marked Exs.P1 to P15 with respective signatures and also MOs Nos. 1 to 4 and closed its evidence. Cognizance before the trial Court: 7. During the recording of the statement of the accused under Section 313 of the Cr.P.C. the accused has produced certain documents along with his statement. The same was taken on record by the trial Court. 8. On hearing the arguments and on evaluation of the evidence placed on record by the prosecution, the trial Court found the accused guilty of committing the aforesaid offences and sentenced him as under: “The accused is sentenced to undergo Rigorous Imprisonment for a period of ten years and also to pay fine of Rs.50,000/- in respect of the offence punishable under section 376 of IPC. In default to pay the fine amount, he shall undergo Simple Imprisonment for a further period of two and half years. In default to pay the fine amount, he shall undergo Simple Imprisonment for a further period of two and half years. The accused is sentenced to undergo Simple Imprisonment for a period of one year and also to pay fine of Rs.2,000/- in respect of the offence punishable under section 506 of IPC. In default to pay the fine amount, he shall undergo Simple Imprisonment for a further period of three months.” 9. Now, being aggrieved by the said judgment of conviction and order of sentence, the appellant-accused is before this Court challenging the same. Proceedings before this Court: (i) Submission on behalf of the Appellant/accused: 10. The learned counsel for the appellant-accused, taking the Court through various documentary evidence as well as oral evidence, submits that the whole case of the prosecution is denied by the accused. According to his submission, it is the defence of the accused that, the husband of the victim lady was involved in so many criminal cases and he was wanted by the Police. He was away from his house for the last two years. The family of the complainant was under the impression that it was the accused who gave information to the Police about the whereabouts of the complainant’s husband. Therefore, there was an assault on the person of the accused by the family members of the complainant on 10.09.2008. Because of that assault, he was admitted to the hospital. Just to overcome the said incident of assault committed on him by the complainant’s family members, a false complaint is designed by the complainant. According to his submission, no such incident of sexual assault was committed by the accused and the wound certificate issued by the doctors shows that he was injured because of the assault on him. As per his submission, no proper evidence has been lead by the prosecution so as to connect the accused to the commission of the alleged crime. In support of his submission, he has relied upon the contradictions, omissions, and discrepancies brought on record in the cross- examination, as well as improvements in the chief examination of witnesses. According to him, the accused was in the hospital, but he was not discharged. It was the police who brought him from the hospital and arrested him. In support of his submission, he has relied upon the contradictions, omissions, and discrepancies brought on record in the cross- examination, as well as improvements in the chief examination of witnesses. According to him, the accused was in the hospital, but he was not discharged. It was the police who brought him from the hospital and arrested him. The prosecution has not summoned the MLC register, which would have thrown light in the case of the prosecution, and the said MLC register would have falsified the case of the prosecution. In a hurried manner, the investigation officer has filed the charge sheet without any proper investigation. According to his submission, the trial Court has committed a grave and palpable error in finding the accused guilty based upon the self- serving evidence of the victim, which is not supported by any of the medical evidence. Relying on the various evidence of the witnesses, it is prayed to allow the appeal and acquit the accused. (ii) Submission on behalf of the Respondent/complainant: 11. As against this submission, the learned High Court Government Pleader refuting the entire submission of the learned counsel for the appellant-accused with all vehemence submits that, in a case of present nature, the evidence of the victim lady itself is sufficient and unless the defence disproves the case of the prosecution, the story now set up by the accused to get rid of the said offence cannot be accepted. In support of his submission, he relies on the evidence placed on record, both oral and documentary, by the prosecution. As per his submission, the learned trial Court, on evaluation of the evidence, has rightly come to the conclusion that the accused has committed the heinous offence of rape on the victim lady. He submits to dismiss the appeal. Analysis: 12. I have given my anxious consideration to the arguments on both sides. Perused the records, including the judgment of conviction and order of sentence of the trial Court. 13. In view of the rival submissions of both sides and the evidence placed on record, the following point arises for my consideration: “Whether the trial Court, without proper appreciating the evidence placed on record by the prosecution and by discarding the concrete defence set up by the accused, has wrongly convicted and sentenced the accused and whether such a judgment require interference?” 14. So far as offence of rape is concerned, it is defined under Section 375 of Indian Penal Code (‘IPC’ for short). To prove the said offence, it is the obligation of the prosecution to prove the ingredients of the said offence. In all, there are six circumstances that have been narrated in the definition clause of the offence of rape. Section 376 of the IPC speaks of punishment for rape. 15. As per the House of Lords decision in (1991) 4 All England Reporter 481 HL. It is stated that: “(i) it is an offence for a man to rape woman or another man. (ii) A man commits rape if: (a) He has sexual intercourse with a person (whether vaginal or anal) who at the time of the intercourse does not consent to it. (b) At the time, he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it.” 16. In a case of present nature, the presence or absence of injury on the body of the rape victim is relevant to decide, whether the coitus was consensual or not. It may be recalled that, in view of Section 114-A of the Indian Evidence Act inserted by the Criminal Law (Amendment), 1983, if the rape victim says in her evidence that, she did not consent to the sexual intercourse, the onus to prove the consent lies on the accused. The fact of sexual intercourse, however, is required to be established by the prosecution at any rate. In doing so, the presence or absence of injury on the body of the woman concerned is material. 17. To ascertain the commission of such crimes, it indeed differs from place to place, from age to age, from varying lifestyles and behavioral complexes. Inferences from a given set of facts, oral and circumstantial, may have to be drawn not with dead uniformity but with realistic diversity, lest rigidity in the shape of the rule of law in this area be introduced through a new type of precedential tyranny. It is a settled principle that absence of injury on any part of the body of the victim sometimes probabalises absence of any coitus. 18. PW-1, being the victim lady, reiterates the contents of the complaint in her evidence on oath. It is a settled principle that absence of injury on any part of the body of the victim sometimes probabalises absence of any coitus. 18. PW-1, being the victim lady, reiterates the contents of the complaint in her evidence on oath. It is her evidence that, one month prior to 09.09.2008, her husband had not come to the house. On 09.09.2008, 2008, the accused came to her house and informed her that her husband wanted to tell her something and asked her to accompany him. Accordingly, she went on the motorbike of the accused, who took her to the forest area. It is her further evidence that, when the accused came to her house, it was about 10 or 11 p.m. and she was sleeping. She states that, in the house, her daughter and one Gangamma-her husband’s sister-were there. The accused informed them about the information sent by her husband, and accordingly, both Manjamma, her daughter, and Gangamma, her husband’s sister, forced the victim lady to accompany the accused. Accordingly, she went with him. On that day, they celebrated the Maramma festival. She admits that, because the festival was celebrated in the village, the people in the village moved with lights (fire) and even dance. But she states that the people go to sleep at 10 p.m. itself. In unequivocal terms, she admits that, when the accused took her on that day, the entire village was celebrating the Maramma festival. 19. As per her evidence, when the accused committed sexual assault on her, it was midnight. She is telling the time by guesswork. She further states that, when she returned to the house, her children and Gangamma were in the house. Her son-in-law is residing separately at Kadabanakatte. On account of the festival, he came to her house. She further states that, when the accused called her, her son-in-law, Gopalakrishna, was not in the house. When she returned to the house at 2 a.m. on the day of the incident, her son-in-law was not in the house, and she did not take a bath on that day. In the morning hours, her brothers caught hold of the accused and bet him. No panchayath was conducted in the village. She further states that, the factum of sexual assault on her was not informed to the elderly members of the village. Her father-in-law is working at Kadabanakatte. In the morning hours, her brothers caught hold of the accused and bet him. No panchayath was conducted in the village. She further states that, the factum of sexual assault on her was not informed to the elderly members of the village. Her father-in-law is working at Kadabanakatte. He was called by her village by calling him on telephone. She further states that, they came to Chitradurga. It was Ashwini M i.e., Investigation Officer, who took all of them to Molakalmuru Village. At that time, her father-in-law was at Molakalmuru Village. He wrote the complaint. As she is unable to read, she does not know the contents of the same. Even police also did not read over the contents of the complaint to her. According to her evidence, she has stated all the aforesaid facts in her complaint-Ex.P.1. But the aforesaid improvement so brought on record in the cross-examination is not found in Ex.P.1 complaint. 20. It is her further evidence that, when she was taken to the hospital by police, she showed the injury sustained by her to the doctor. The doctor did not read the said injuries, as they were not big injuries. She has sustained only abrasions. She gave all her clothes during the seizure of the same to the police and gave them to them when she lodged a complaint. It has come to her attention that her husband has not visited her house for the last two years. 21. On reading the entire text of cross-examination directed to this PW-1, it shows that she has stated so many improvements in her evidence on oath. In paragraph 7 of the cross-examination, she states as follows: 22. This evidence, as spoken to by this PW-1, is quite contrary to the allegations of the so-called sexual assault alleged in the complaint. Therefore, if such evidence is placed on record by the prosecution, it requires some corroborative evidence to substantiate the allegations made in the charge leveled against the accused. 23. PW-2 Mallikarjunappa is the scene of offence pancha. According to his evidence, as shown by PW-1 the panchanama was conducted. The scene of offence is about 4 kms away from Muttigarahally. One Nagesh was present when the panchanama was conducted. 24. 23. PW-2 Mallikarjunappa is the scene of offence pancha. According to his evidence, as shown by PW-1 the panchanama was conducted. The scene of offence is about 4 kms away from Muttigarahally. One Nagesh was present when the panchanama was conducted. 24. In the cross-examination, he states that it was Dy.S.P. who called him to the scene of offence and there she noticed the presence of the victim lady and her son-in- law Gopalakrishna. He admits that, on the way to the forest, there are stones, thorn trees, and other shrubs. He admits that, because of the Maramma festival in the village, the villagers were celebrating the festival throughout the night. He states that there were no symptoms of committing any sexual assault at the scene of the offence. If the evidence of this PW-2 is compared with the contents of Panchanama, it shows that the scene of offence is situated in a forest area where the thorned big trees, Nilgiri trees, are grown, and at the said place there exist small shrubs. The said place is a place nobody could see the same. At the scene of the offence there was a Kare fruit tree that was growing, and there was the spreading of the sand. As the cattle had moved into the said place, there were no symptoms. The contents of Ex.P2 are quite contrary to the evidence of PW2. 25. In a case of present nature, it is the bounden duty of the prosecution to prove the exact scene of the offence with its location, situation, and features, as well as other available symptoms, etc. But evidence of PW2 is silent, to that effect. Thus, the evidence of PW2 can be accepted as evidence of his putting the signature on the panchanama. 26. PW-3 P. Palaiah is the seizure pancha to Ex.P3, as is PW-11 Manjamma. This PW-11 is also pancha to Ex.P2. Unfortunately, this PW-3 has turned hostile. Therefore, his evidence would not help the case of the prosecution, whereas PW-11 Manjamma speaks about the seizure of samples as per MO Nos. 2 and 3 in the hospital, and she is a female police constable at the relevant time. The evidence of PW-1 can be believed to the extent of the seizure of MO Nos. 2 and 3. According to her evidence, she wrote the panchanama Ex.P2 at the dictation of Dy. 2 and 3 in the hospital, and she is a female police constable at the relevant time. The evidence of PW-1 can be believed to the extent of the seizure of MO Nos. 2 and 3. According to her evidence, she wrote the panchanama Ex.P2 at the dictation of Dy. S.P. i.e. the Investigating Officer. According to her, the scene of the offence is situated in a forest area where trees were grown. There is a small stream that is flowing. To the extent of her scribing the said panchanama, her evidence is to be accepted. 27. PW-4 Gangamma is the sister of the husband of the complainant victim. According to her evidence, on September 9th, 2008, at about 10 p.m. the accused came to her house of her brother, and because of the festival, she also came to the brother’s house. The accused came to the house on his motorbike and inquired about the presence of PW-1. She called PW-1, and accordingly, on the request of the accused, she sent PW-1 with him by force, though PW-1 did not agree with the request of the accused. According to her, it was she who asked PW-1 to accompany the accused to meet her husband. Therefore, PW1 went with the accused on his motorbike at 10 p.m. but returned to the house at 1 a.m. It is her evidence that, PW-1 did not returned to the house, Therefore, she and Gopalakrishna went in search of her. As they could not get her, they came back, and by that time, PW-1 was found in the house. When asked, PW-1 started weeping and was informed about the sexual assault on her by the accused. 28. This PW-4 was directed at severe cross-examination. It has come to her attention that, when the accused went to the house of her brother, even the husband of PW-1 was present, as was Gopalakrishna. It is her evidence that the accused did not speak to her, and he was sleeping, her husband did not wake up. The accused spoke to her and asked to send PW-1 with him. At that time, PW-1 was sleeping. She slept at about 8 p.m. on that day. When she requested PW-1 to accompany the accused and give him dinner, initially PW-1 did not agree to the same. The accused spoke to her and asked to send PW-1 with him. At that time, PW-1 was sleeping. She slept at about 8 p.m. on that day. When she requested PW-1 to accompany the accused and give him dinner, initially PW-1 did not agree to the same. According to her, she told PW-1 that her husband left the house about a month ago and he wanted to tell her something; therefore, she was forced to meet him. She also states that, as the Maramma festival was being celebrated in the village, people were moving in the night hours. She states that PW-1 requested that PW-4 come along with her, but she did not agree. 29. This is altogether different evidence spoken to by PW-4 if compared to the evidence of PW-1. According to her evidence, she searched for PW-1 near Muttigarahally Kamarakavalu Bellary Nursery. She went in search of PW-1 by leaving her small children in the house. She tried to inform her brother, who was residing in the neighborhood, but he did not wake up. According to her, after one or two hours, she returned to the house. PW-1 came to the house alone. She has sustained injuries to her body as well as her legs and hands, and she was weeping. There was a small abrasion on her body. This evidence spoken to by PW-4 with regard to her reaching the house after one or two hours of reaching PW-4; it is not stated by PW-1. 30. PW-5 Gopalakrishna is the son-in-law of PW-1, and according to him, on 09.09.2008 at 11 p.m., when PW-1 was sleeping in the house, the accused came to the house of PW-1 by walk. He told PW-1 that her husband was in the forest area and asked her to bring dinner for him. Though PW-1 did not agree, PW-4 forced her to take dinner to her husband. Accordingly, PW-1 went with the accused on his motorcycle. As per the evidence of PW-1, when the accused came to the house, this PW-5 was not in the house. But PW-5 states that he was in the house, and this fact was informed to him by his wife, Manjamma. As PW-1 did not return, he went in search of her and returned to the house at 1.30 a.m. By that time, PW-1 had already arrived at the house and was sitting and weeping. But PW-5 states that he was in the house, and this fact was informed to him by his wife, Manjamma. As PW-1 did not return, he went in search of her and returned to the house at 1.30 a.m. By that time, PW-1 had already arrived at the house and was sitting and weeping. She was informed about the sexual assault by the accused. 31. He further states that, on the following day, he informed his brother that there was a galata in the village. His wife, PW-4, and neighbors by the name Vijayamma, Nagamani, enquired about the about the accused. By that time, the brother of PW5, Ajjanna, was also invited. The said Ajanna slapped the accused twice on the cheek. The accused told him that he would lodge a complaint against him. Thereafter, all of them went to the office of the D.S.P. to lodge a complaint. Partly, he was declared a hostile witness. 32. This PW-5 was cross-examined by the counsel for the accused. In the cross-examination, he corroborates the answers spoken to by PW-4 with regard to the movement of people throughout the night because of the festival. Even he states that he did not enquire any of the villagers with regard to the whereabouts of the PW-1. In the examination-in-chief, he states that he searched PW-1 in the forest area, and in the cross-examination, he states that he had not searched PW-1 near the steam. According to him, it was Thimmaiah who wrote the complaint. Evidently, he was sleeping when the accused came to the house of PW- 1. With regard to the taking of PW-1 on his motor cycle by the accused, he is a hearsay witness. Therefore, evidence of PWs. 4 and 5 would not help the prosecution to prove their presence, and taking of PW- 1 by the accused with him. Though PW-4 states so many facts in her examination-in-chief, her evidence and the evidence of PW-5, if compared, both are contradictory in nature. 33. PW-6 Vijayamma, PW-7 Umadevi, and PW-8 Palaiah are the so-called neighbours residing in the village of PW-1. As per the case of the prosecution, it was these three witnesses who enquired the accused regarding the sexual assault on the person of PW-1. But all these three witnesses have turned hostile. Therefore, their evidence would not help the prosecution. 34. 33. PW-6 Vijayamma, PW-7 Umadevi, and PW-8 Palaiah are the so-called neighbours residing in the village of PW-1. As per the case of the prosecution, it was these three witnesses who enquired the accused regarding the sexual assault on the person of PW-1. But all these three witnesses have turned hostile. Therefore, their evidence would not help the prosecution. 34. PW-9 Sri Shashidhara medically examined the accused at 11.00 p.m. on 09.09.2008 and noticed the following injuries on person: “1. One congestion of the left eye present. 2. Abrasion present in the left shoulder measuring about 2’ x 1’ and right shoulder measuring about 1’ x 1’. 3. Contusion present on the left scapula measuring about 3’ x 1’ and right scapula measuring about 4’ x 1’. 4. Contusion present on the right side of the lower part of the back measuring about 5’ x 1’. 5. Abrasion present in the left lateral side of the back measuring about 1’ x 1’ cm. 6. Multiple abrasion 5 in number present in the Pinna of the right ear measuring about 1’ x 1/2’ cm. 7. No injuries present in the external genitalia.” 35. He is also of the opinion that this accused is capable of performing sexual intercourse. Through out the evidence, this PW-9 has not stated whether he enquired the accused about the cause of injuries. Even he has not mentioned the age of injuries. It is the defense of the accused that, because of the assault on him by the family members of PW-1, he sustained injuries and went to the hospital for treatment. With regard to the assault on the person of the accused, the evidence in PW-5 shows that Thimmanna assaulted the accused by slapping on the cheek of the accused. With regard to the injuries being sustained by the accused, as shown in Ex.P9, the prosecution is not disputing. It has examined the doctor who medically examined the accused. 36. PW-10 Ajjanna is the brother of PW-1, and he is a hearsay witness to the so-called sexual assault on the person of PW-1 by the accused. As per his cross- examination, no panchayath was conducted regarding the sexual assault in the village. As he is a hearsay witness, his testimony would not help the prosecution. 37. 36. PW-10 Ajjanna is the brother of PW-1, and he is a hearsay witness to the so-called sexual assault on the person of PW-1 by the accused. As per his cross- examination, no panchayath was conducted regarding the sexual assault in the village. As he is a hearsay witness, his testimony would not help the prosecution. 37. PW-12 Zakir Hussain was the police constable at Molakalmuru police station at the relevant time, and at the direction of the superior officers, he was collecting information about the whereabouts of the accused. It was revealed that the accused was taking treatment at the Government Hospital in Molakalmuru. Accordingly, PW-12 and ASI went to the said hospital and apprehended the accused when he was returning from the hospital. This PW-12 also carried the FIR to the Court. To the extent of apprehending the accused at Molakalmuru Government Hospital and carrying an FIR, the accused is not disputing. His case is that, when he was an inpatient in the hospital because of his assault by the family members of PW-1, he was taking treatment. At that time, police came and apprehended him. It is his defense that, the husband of PW-1, was involved in so many criminal cases and was absconding. Therefore, the police were in search of him. The family members of PW-1 were under the impression that it was the accused who gave information regarding the whereabouts of the husband of PW-1; therefore, they assaulted him. 38. PW-13 T. Basappa was the PSI who seized the motorbike bearing Reg. No. KA16 Q 2482 under Ex.P3 Panchanama, which is marked as MO No. 1. In the cross- examination, he states that a written direction was given to him by the D.S.P. without mentioning the registration number of the vehicle. It was told to him that the said vehicle belonged to the Bajaj CK100 company. He had not inquired to whom the said vehicle belonged. 39. PW-14 Sannanna, is none other than the owner of the said motor bike. He states that, he has not given the vehicle to anybody and even to the accused. He was declared as hostile witness by the prosecution but nothing worth was elicited though intensive cross-examination is directed against this witness. 40. PW-15 Dr. Ashwini M. was Investigating Officer who conducted the investigation and filed charge sheet against him. He states that, he has not given the vehicle to anybody and even to the accused. He was declared as hostile witness by the prosecution but nothing worth was elicited though intensive cross-examination is directed against this witness. 40. PW-15 Dr. Ashwini M. was Investigating Officer who conducted the investigation and filed charge sheet against him. To the extent of filing charge sheet her evidence is to be accepted. 41. PW-16 Dr. Padmavathi is the doctor who medically examined the victim PW-1 and issued Ex.P.14. She speaks with regard to the medical examination of PW-1, who was brought by Manjamma at 10.30 p.m. on 10.9.2008, who came to the hospital with a history of sexual assault. She did not find any external injuries on the body of PW-1. She collected a vaginal swab, a vaginal swab slide, pubic hairs, and stained clothes. She also collected a saree, blouse, and petticoat. She submitted a report as per Ex.P.15. As per her evidence, she noticed the presence of a seminal stain on item No. 6 as per the FSL report but not in other items. She was of the opinion that PW-1 was subjected to rape. She identifies the report as Ex.P.14. 42. PW-16 was thoroughly cross-examined by the defence. According to her, on her examination, she noticed that PW-1 was physically well built and that she had the capacity to resist any sexual assault on her. She admits that, if there is any such fight or resistance, there should be some external injuries to the bodies of both the victim and aggressor. She did not enquire as to whether PW-1 had taken a bath or not. When she enquired she was in the same dress that was worn by her at the time of the sexual assault on her. She has not mentioned the enquiring about clothes in her report. There is no problem mentioning it. According to her, because of the presence of semen, it was opined that it was an attempt at rape, but it was a commission of rape. She admits that, to opine as to the commission of rape, the semen must be detected from the samples that have to be collected from the body of the victim. She further admits that, the sample collected from the body of the victim did not show the presence of semen as per the FSL report. She admits that, to opine as to the commission of rape, the semen must be detected from the samples that have to be collected from the body of the victim. She further admits that, the sample collected from the body of the victim did not show the presence of semen as per the FSL report. She admits that only the semen was present on her petticoat. One cannot say that it was an attempted rape or a completed rape. She admits that, the seminal stain found on the petticoat is not mentioned in the FSL report. 43. If the evidence of PW-16, the doctor, is read in its entirety, she has altogether given different evidence from that of PW-1. No doubt the evidence of the prosecutrix need not be corroborated, as the woman who is a victim of sexual assault is not an accomplice to the crime. Her evidence cannot be tested with the same suspicion as that of accomplice. It is laid down in catena of judgments that, the evidence of the prosecutrix is similar to the evidence of the injured complainant or witness. Even the law says that evidence of the prosecutrix alone may sustain the conviction. 44. When medical evidence is placed on record by the prosecution under Section 45 of the Indian Evidence Act, an expert opinion is not binding on the Court. It is advisory in nature. So as to say, Court has to form its own opinion considering the materials rendered by the expert. It is held by Hon’ble Apex Court in Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204 , Para 34 of the said judgment held as under: “34. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert’s opinion because once the expert’s opinion is accepted, it is not the opinion of the medical officer but of the Court.” 45. In a case of present nature, under the provision of the Indian Evidence Act as held by the Hon’ble Supreme Court in a catena of judgments, the evidence may be turned as wholly reliable or wholly unreliable, so also either wholly reliable or wholly unreliable. It is argued by the counsel for the appellant accused that, on reading the evidence of PW-16 doctor and the evidence of PW-1, there was a delay in lodging the FIR, and as such, the chances of false implication by the accused could not be ruled out. 46. In this case, though the incident has taken place on 09.09.2008 the complaint was lodged at 11.00 p.m. on 10.09.2008. According to the trial Court, the prosecution was able to prove its case. It has appreciated the evidence of PW-1 only, and as per the say of the witnesses so examined, on the following day of the incident, brothers of PW-1 met the accused, enquired about him, and even one Thimmanna assaulted him. On due deliberation, a complaint was lodged. This conduct of PW-1 in making a delay in filing the complaint may render the matter doubtful. No doubt, under Section 118 of the Indian Evidence Act, 1872, the prosecutrix is a competent witness, but the overall evidence led by the prosecution does establish that she voluntarily accompanied the accused on that night. There were no injuries sustained by her, though she resisted the sexual assault on her. The portion of the cross-examination so incorporated herein above falsifies the forcible sexual intercourse on her by the accused. 47. There were no injuries sustained by her, though she resisted the sexual assault on her. The portion of the cross-examination so incorporated herein above falsifies the forcible sexual intercourse on her by the accused. 47. When PW-1 was about 35 years old when the so-called alleged incident of sexual assault was committed on her, was it necessary for her to accompany the accused during the night hours alone? Though it has come to light in the evidence of PW-4 that she forced PW-1 to accompany the accused on that day, she remained in the house on the ground that small children were there in the house. But subsequently, she went in search of PW-1 and returned to the house at midnight itself, and by that time, PW-1 was in the house. The evidence of PW-5 is quite contrary. When a grown up woman was permitted to accompany the accused on that day, it gave some room to suspect the contents of the complaint. Evidently, as per the evidence of the witnesses, the Maramma festival was celebrated in the village, and throughout the night, people were moving in the streets with light. As per the evidence of PW-1, no villagers saw her moving with the accused. No injuries have been sustained by her. Initial resistance was there, as per her evidence. She kept mum. Thereafter, the accused went away, leaving the victim at the scene of offence. She did not know the road to her house. By searching the road, she reached the house at 2 a.m. She was strained. When the inmates of the house enquired she started weeping and narrated about the incident. PW-4 never says that when PW-1 came to the house at 2 a.m., she was in the house. This PW-4 returned to the house after two hours of arriving of PW-1. Even the husband of PW-4 was in the house. PW-5 was not in the house as per the evidence of PW-1. But PW-5 states that he was sleeping at the time in the house. So on an overall reading of the entire evidence placed on record by the prosecution and also the evidence of the doctor the material witness, the so-called sexual assault alleged by the prosecution is not duly proved in accordance with the law. The panchas have not supported the case of the prosecution in material particulars. Recovery panchas have turned hostile. So on an overall reading of the entire evidence placed on record by the prosecution and also the evidence of the doctor the material witness, the so-called sexual assault alleged by the prosecution is not duly proved in accordance with the law. The panchas have not supported the case of the prosecution in material particulars. Recovery panchas have turned hostile. The neighbours also not supported. Therefore, the clear connecting links in the commission of the crime alleged by the prosecution are missing in the case. If such evidence is placed on record by the prosecution, doubt arises in the case of prosecution, and that benefit of doubt has to be extended to the accused. 48. Thus, in view of the discussion made herein above, the case of the prosecution is full of contradictions, omissions and discrepancies that are not properly explained by it. In view of the evidence brought on record, it can be termed as consensual sex. 49. In view of the discussion made herein above, the appeal succeeds. 50. Resultantly, I pass the following: ORDER: (i) Appeal is allowed. (ii) Judgment of conviction and order of sentence passed in S.C. No. 53/2009 dated 31.01.2011 by the Principal District & Sessions Judge, Chitradurga is set aside. (iii) Consequentially, appellant-accused is acquitted of the charges punishable under Sections 376 and 506 of IPC. (iv) His bail bonds stands cancelled. He is set at liberty. (v) Trial Court is directed to refund the fine amount digitally to the appellant-accused after collecting necessary documents. (vi) Order regarding custody of MO No. 1 motor cycle bearing registration No. KA16 Q 2482 is made absolute. MO Nos. 2 to 4 being worthless ordered to be destroyed. (vii) Send back the trail Court records along with copy of this judgment forthwith.