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2025 DIGILAW 10 (KAR)

Mansoor @ Ismail v. State of Karnataka

2025-05-02

H.P.SANDESH

body2025
JUDGMENT : H.P. SANDESH, J. Heard learned counsel for the appellant and learned Additional SPP for the respondent-State. 2. The factual matrix of the case of the prosecution is that the victim girl is daughter of P.Ws.2 and 3 and this appellant is known to family of the victim and residing in nearby locality. The victim was studying in 9 th standard and is a minor. On 09.07.2011 at 1.30 p.m., victim returned to her house after the school and her parents and brothers were not in the house and she was alone. At about 1.45 p.m., the appellant came to her house and knocked the door and when she opened the door, accused returned the machete which he had taken from her father and came inside the house and embraced and kissed her and then he caught hold her hand and took her to bed room and gagged her mouth by putting cloth and made her to lie on the ground and committed forcible sexual intercourse against her will and without her consent. On 21.07.2011 night, victim was weeping and later, the parents of the victim came to know about the incident and on the next day, they lodged the complaint. The police registered the case in Crime No.155/2011, investigated the matter and filed the charge-sheet for the offence under Sections 376 and 506 IPC. 3. The accused was arrested and he was remanded to judicial custody and subsequently, he was released on bail. The accused did not plead guilty. Hence, the prosecution examined the witnesses as P.Ws.1 to 21 and got marked the documents as Exs.P1 to P18 and M.Os.1 to 6. On behalf of the defence also, four witnesses were examined as D.Ws.1 to 4 and got marked the documents as Exs.D1 to D7. 4. The Trial Court having considered the material available on record, convicted the accused and sentenced the accused for a period of ten years with fine of Rs.15,000/- for the offence under Section 376 IPC and sentenced to undergo imprisonment for a period of one year for the offence under Section 506 IPC. Being aggrieved by the judgment of conviction and sentence, the present criminal appeal is filed before this Court. 5. Being aggrieved by the judgment of conviction and sentence, the present criminal appeal is filed before this Court. 5. The main contention of learned counsel for the appellant is that Trial Court failed to consider the material on record and there are serious material irregularities and illegalities in appreciating the material evidence available on record. It is contended that evidence placed on record by the prosecution suffers from contradictions, improvements and omissions and the Trial Court ought to have given benefit of doubt in favour of the appellant. It is also contended that the Trial Court has failed to consider that there was ill-will between the parties of the victim and some of the muslim people with regard to the place where the victim and her parents were residing. It is contended that it is a sexual act, but no injuries was caused to her and no injuries on the accused and medical evidence is also very clear that no sign of subjecting her for sexual act and inspite of it, the Trial Court committed an error in convicting the accused. It is also contended that on the date of the alleged incident, he was attending the work and also produced Ex.D6-certificate issued by Offshore Infrastructure, wherein the appellant was working and plea of alibi was taken and examined the witness and the Trial Court committed an error in convicting the accused solely on the evidence of prosecutrix, her mother and brother, when other material on record clearly shows that appellant is an innocent. It is further contended that prosecution has failed to prove the age of the victim, though examined the Head Mistress and the same has not been proved and the deposition of the victim is very clear that victim was not studying in Pejavara High School. From the evidence of Doctor, it is very clear that the victim was aged about 16 to 17 years at the time of examination. 6. The counsel also contend that the evidence of prosecution is very clear that accused was arrested and present in the police station when P.W.1 and her mother had gone to the police station on 22.07.2011 to give complaint. The defence theory that the entire episode was a creation of Louis Corea and a false complaint has been filed at his instance is probabalised, considering the evidence of P.Ws.1 and 2. The defence theory that the entire episode was a creation of Louis Corea and a false complaint has been filed at his instance is probabalised, considering the evidence of P.Ws.1 and 2. D.W.3 also stated that he had seen the accused in the police station on 22.07.2011. It is contended that date of incident was on 09.07.2011 and upto 22.07.2011, the victim girl has not informed about the incident either to her mother or anybody else. From the deposition of P.W.1 also, it could be said that she had not resisted the appellant’s act and that she was normal after the incident also. Learned counsel also reiterated the grounds which have been urged in the appeal memo in the oral arguments. Learned counsel would contend that except the interested witnesses, all other witnesses have turned hostile. The evidence of P.Ws.15 and 16 is also very clear that no case was made out. The evidence of Doctor is also very clear that no injury and no sign of forcible sexual act. It is also brought to notice of this Court that one Louis Corea was having grudge against the accused hence, the appellant is falsely implicated in the case and there is a delay of 13 days and there was dispute between the community leader and mother was also working with the community leader Louis Corea and all these material creates doubt in the case of the prosecution. The accused was arrested on 22.07.2011, but the Investigating Officer says that the accused was arrested on 24.07.2011. Hence, the case of the prosecution is doubtful and it requires interference of this Court. 7. Learned counsel for the appellant in support of his argument, relied upon the judgment of the Apex Court in RAHIM BEG VS. THE STATE OF U.P. reported in AIR 1973 SC 343 and brought to notice of this Court discussion made in paragraph No.26 that rape alleged to have been committed by a fully developed man on a girl of 10 or 12 years who was virgin and whose hymen was intact and absence of injuries on the male organ of accused would point to his innocence. 8. The counsel also relied upon the judgment of the Apex Court in SUNIL VS. 8. The counsel also relied upon the judgment of the Apex Court in SUNIL VS. STATE OF HARYANA reported in (2010) 1 SCC 742 and brought to notice of this Court paragraph Nos.25, 26 and 27, wherein discussion was made with regard to School Leaving Certificate and not proved the same and P.W.8, the father of the prosecutrix has also not been able to give correct date of birth of the prosecutrix. In his statement he clearly stated that he is giving an approximate date without any basis or record. In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date and criminal prosecution cannot be based on appropriate date which is not supported by any record, when there are so many infirmities, holes and lacunae in the prosecution version and appellant is entitled to benefit of doubt. 9. The counsel also relied upon the judgment of the Apex Court in BHAGWAN CHARAN MATE VS. STATE OF MAHARASHTRA reported in 2006 CRI.L.J. 579, wherein the Apex Court held that in a case of rape, medical evidence, no injuries on private parts, Doctor’s opinion that no sexual intercourse committed and further Chemical Analyser’s report not corroborative, conviction is liable to be set aside. Learned counsel referring this judgment would contend that this principle is applicable to the case on hand, as there is no such material. 10. The counsel also relied upon the judgment in JOGI DAN AND OTHERS VS. STATE OF RAJASTHAN reported in 2004 CRI.L.J. 1726, wherein it is held that in the case of rape, in the absence of injuries on person of prosecutrix, how an inference has to be drawn is stated. The absence of injuries either on the accused or on the prosecutrix shows that the prosecutrix did not resist but absence of injuries is not by itself sufficient to hold that the prosecutrix was a consenting party. Non production of witnesses gathered after hearing cries of prosecutrix, conviction cannot be based on unreliable solitary statement of prosecutrix. 11. The counsel also relied upon the judgment of the Apex Court in RAMDHAN VS. Non production of witnesses gathered after hearing cries of prosecutrix, conviction cannot be based on unreliable solitary statement of prosecutrix. 11. The counsel also relied upon the judgment of the Apex Court in RAMDHAN VS. STATE OF RAJASTHAN reported in 2010 CRI.L.J. 2652, wherein the Apex Court held that when the charge of rape is alleged, testimony of prosecutrix and statements of prosecutrix not found to be trustworthy and worthy of credence, presence of witnesses is also found to be doubtful on scene of occurrence, conviction of accused solely on evidence of prosecutrix is not proper. 12. Per contra, learned Additional SPP for the respondent-State would vehemently contend that nothing is elicited in the cross-examination of witnesses that there was an enmity between the complainant’s family and the accused and plea of alibi is also not proved. She would contend that Ex.D6 which is marked in the evidence of D.W.4 is very clear that they only take signature while entering the office and also while returning from the office and in between, they can go and come back. She would vehemently contend that no material that there is land dispute between the community leader and the accused family. She would further contend that no mother will spoil the life of a daughter and at the instance of Louis Corea, the complaint was not given. The medical report is very clear that hymen is intact and complaint was given after 13 days, since the accused had caused life threat and injury might have healed in between long gap of incident and examination of victim. She would contend that the evidence of victim clearly states the manner in which she was subjected to sexual act and to prove the fact that mother of the victim was an employee of Louis Corea, no material is placed before the Court. 13. In reply to the argument of learned Additional SPP for the respondent-State, learned counsel for the appellant would vehemently contend that in the absence of any documentary evidence that victim was subjected to sexual act, since there is no medical evidence and FSL report is also negative, question of convicting the accused does not arise. The Trial Court committed an error in relying only upon the evidence of prosecutrix i.e., mother, brother and interested witnesses. 14. The Trial Court committed an error in relying only upon the evidence of prosecutrix i.e., mother, brother and interested witnesses. 14. Having heard learned counsel for the appellant, learned Additional SPP for the respondent-State and also principles laid down in the judgments referred (supra) by learned counsel for the appellant, this Court has to re-analyze the material on record and having re-analyzed the same, the points that would arise for consideration of this Court are: (1) Whether the Trial Court committed an error in convicting the accused for the offence under Sections 376 and 506 IPC and whether this Court can exercise appellate jurisdiction and extend benefit of doubt in favour of the appellant/accused? (2) What order? Point No.(1) 15. Having heard learned counsel for the appellant and learned Additional SPP for the respondent-State and also principles laid down in the judgments referred (supra) by learned counsel for the appellant, this Court has to re-appreciate the material on record. The very documentary evidence which sets the law in motion is Ex.P1, wherein it is stated that victim was subjected to sexual act on 09.07.2011 and it was a forceful rape on her and the accused has also caused life threat not to disclose the same. However, on 21.07.2011, when she was weeping, mother has enquired and then she revealed the incident and took her to the police station and lodged the complaint and case was registered, spot mahazar was conducted in terms of Ex.P2 and seizure mahazar was conducted in terms of Ex.P3. The prosecution also relied upon wound certificate Ex.P9, wherein the Doctor has opined that radiological evidence of age of victim is 16 to 17 years and there is no external injuries, but hymen is not intact and there is no injuries over genital area and presence of seminal stain was not detected in FSL report. The accused was also subjected to examination and certificate was issued in terms of Ex.P11 which examination shows that no external injuries seen over the genitals or nearby and no definite evidence regarding rape and there is nothing to suggest that he is not fit for sexual act. 16. Having considered these documentary evidence, this Court has to consider oral evidence. 16. Having considered these documentary evidence, this Court has to consider oral evidence. No doubt, P.W.1 reiterates the contents of complaint in her chief evidence that she was subjected to sexual act and caused life threat and complaint is also marked as Ex.P1 and M.Os.1 to 4 are identified by her. This witness was subjected to cross-examination. In the cross- examination, she admits that Louis Corea was leader of the community and it is also elicited that in the compound of her father, there are 8 tenements and also on the left side of her house, there is a road and on the left and right of said road, there are 5 houses and there is also a mud road on the left side and there were 5 houses in the said road and there are number of houses belonging to the muslims. It is submitted that on the date of incident, there was a mehendi programme in the houe of in respect of Nazeer i.e., C.W.10. It is suggested that she went to said mehendi by wearing M.Os.1 and 2 and the same was denied. But she admits that her younger brother Clefon attended the same. It is elicited in the cross-examination regarding incident is concerned and she did not made any attempt to assault the accused when machete was given to her by the accused. While taking her climbing the steps from bedroom, she did not scream and after making her to lie on the ground, she started screaming and told she was made to lie on the ground, her clothes were in the same position and claims that accused himself removed the clothes and she resisted the incident. But she has not sustained any injuries and she resisted for about two minutes and she did not get any pain in her private part and nothing is discharged in penis. It is also elicited that first her mother came to house and after arrival of her mother also, she was not crying and she also says that on the next day also, she went to church alone and she went to school on 21.07.2011 after the incident. But she claims that she disclosed the same to her friend one Shameena, who is her neighbourer. But she claims that she disclosed the same to her friend one Shameena, who is her neighbourer. It is elicited that that when they went to police station, at that time, C.W.11 Louis Corea was present in the police station and accused was in the police station and he was sitting on the cement bench and also Louis Corea, who is in the police station took her signature. She also says that after her arrival, accused was not secured. It is suggested that she was not subjected to any sexual act and the same was denied. It is elicited that visit made to police station along with her mother was not known to her brother and mother and they came to know about the same on the next date and she also visited the police station on the next day also. It is suggested that there was dispute between Muslims and Christian community in connection with church area and the same was denied that says that she is not aware of the same. It is suggested that complaint was given at the instance of Louis Corea and the same was denied and it was not thought to her mind not to disclose the same either to Mary or her daughter Shanthi or to any other person. But, she claims that often she was crying and having witnessed the same, her parents enquired her, but she did not disclose the same from 09.07.2011 to 22.07.2011, except stating the same to her mother on 21.07.2011. But, she did not sustain any injury to her private part, but she was having pain and she did not disclose the same to her mother also. It is suggested that Ex.P1 was prepared by Louis Corea and she put her signature and the same was denied. 17. The other witness is P.W.2-mother and she reiterates the evidence of P.W.1 as to how the incident has occurred. The said incident was first informed to Louis Corea and then complaint was given to police and before informing the same to Louis Corea, she brought the same to her husband’s notice. After lodging the complaint, she was taken to hospital. On the date of the incident also, there was a function near her house. The said incident was first informed to Louis Corea and then complaint was given to police and before informing the same to Louis Corea, she brought the same to her husband’s notice. After lodging the complaint, she was taken to hospital. On the date of the incident also, there was a function near her house. On that day, she came to house at around 4.00 p.m. and husband also came at around 5.00 p.m. and her son had been to work after attending the college and another son had been to her mother’s house. She was subjected to cross-examination. In the cross- examination, she says that on 21.07.2011, before her arrival to house at 4.00 p.m. on 21.07.2011, her children were there in house and her daughter disclosed the incident at 10.00 p.m. and the same was brought to her husband’s notice and police took her signature and also daughter’s signature and on the next day morning at 10.00 a.m., they went to police station. But before going to police station, she went to house of Louis Corea and Louis Corea was not there in the police station and she says that for the first time, she is deposing before the Court that before going to police station, she had been to house of Louis Corea and admits that, she did not make any statement that accused came to return the machete which was confronted and marked as Ex.D1. It is admitted that house of neighbourer Mary and their house are adjacent to each other and if anyone bells the house of Mary or their house, they used to go and see and if anything happens in the house, they also come to know about the same. It is suggested that she also attended school on 22.07.2011 and complaint was lodged at the instance of Louis Corea and the same was denied. She admits that there are 8 tenements in their house and also admits in connection with rentals, talks were held between her husband and there was no quarrel. 18. The other witness is P.W.3, the father of the victim girl. He also reiterated about the incident and states that he came to know about the incident when her daughter revealed him about the same. 18. The other witness is P.W.3, the father of the victim girl. He also reiterated about the incident and states that he came to know about the incident when her daughter revealed him about the same. In the cross-examination, he admits as to how the incident was revealed to him by his wife and he reveaed the same before the Court. It is suggested that he is deposing before the Court at the instance of Louis Corea and the same was denied. But, he admits that on 21.07.2011, her daughter P.W.1 was not crying and she was not in bad mood. 19. P.W.4 is the neighbourer. She says that P.W.2 is a maid servant of P.W.7-Louis Corea. But, she says accused went to the house of victim at 2.00 p.m. and P.W.2 came and informed about the rape. This witness is a hearsay witness. In the cross-examination, she admits that this information was not informed to anybody else, except before the Court and also admits that in between her house and also house of P.Ws.1 to 3, there are 20 to 25 tenanted premises and she did not enquire with P.W.1 that accused came to her house and also she did not go to house of P.W.1 on 09.07.2011 and she admits that on 09.07.2011, she was alone in the house was not stated before the police in terms of Ex.D3 and also has not stated that when she went to shop and came back, she did not make any statement before the police in terms of Exs.D4 about the information given by P.W.1 before the police. 20. P.W.5 is the witness, who has turned hostile. P.W.6 is mahazar witness and not a relevant witness and he only speaks about drawing of mahazar. P.W.7 also turned hostile. P.W.8 says that police only called to house of P.W.3 and also to police station and turned hostile. P.W.9 is FSL witness, who speaks about subjecting the seized articles for examination and states that he did not find any seminal stains in the articles. P.W.10 is the Head Mistress for marking of document Ex.P5. This witness was cross-examined and suggestion was made that Date of Birth was got typed at the instance of the complainant and the same was denied. P.W.11 is the witness, who has given Ex.P6 regarding the document maintained in the panchayath. P.W.10 is the Head Mistress for marking of document Ex.P5. This witness was cross-examined and suggestion was made that Date of Birth was got typed at the instance of the complainant and the same was denied. P.W.11 is the witness, who has given Ex.P6 regarding the document maintained in the panchayath. P.W.12 is the person, who prepared the spot sketch in terms of Ex.P7. P.W.13 speaks about the mehendi programme. P.W.14 speaks that there was a mehendri programme and also they kept the generator. 21. P.W.15 is the Doctor, who conducted the medical examination and says that as per x-ray, the age of the victim is about 16 to 17 years and no injuries were found and hymen was not intact and not found any seminal stains and no injuries on the private part and issued certificate in terms of Ex.P9. In the cross-examination, it is suggested that in terms of Ex.P9, there were no injuries and she was matured and also answer is elicited that if a girl raids the cycle and plays football, there is a chance of tearing hymen. It is elicited that if a woman and men involves in sexual act, it may take 5 to 10 minutes for discharge. It is also elicited that, if private part of a girl is smaller in size, if a person, who is grown indulges in sexual act, there are chances of injuries to the private part of a woman and male also get injuries and there are chances of sustaining injuries, if it is a forcible act and the woman will get injuries on the back portion and also injuries to her body and the same was not found on examination of P.W.1. 22. The other witness is P.W.16 Senior Specialist, Government Hospital Wenlock, Mangaluru, who conducted medical examination of the accused and he says that no injuries were found and also not found any sign of subjecting the victim for sexual act and gives the certificate in terms of Ex.P11 and serological test is also marked as Exs.P13 to P15. 23. P.W.17 is the Police Constable, who took FIR to the office of the Court. P.W.18 is Women Police Constable, who took the vaginal slab. 23. P.W.17 is the Police Constable, who took FIR to the office of the Court. P.W.18 is Women Police Constable, who took the vaginal slab. P.W.19 is the official who took seized article to FSL and P.W.20 is the Sub-inspector of Police, who received the complaint, registered the case and issued FIR in terms of Ex.P16 and accused was arrested and given to custody of Investigating Officer. P.W.21 is the Police Circle Inspector, who conducted further investigation in the matter and seizure of clothes and he states that accused was produced before him and he recorded his statement in terms of Ex.P17 and also did other formalities of sending the seized articles to FSL and obtained the report. In the cross-examination, he admits that he secured the document of Ex.P18 from the staff of Head Mistress and he cannot tell whether they have used printed form or Xerox and obtained the same after filing of the charge-sheet. It is suggested that P.W.1 is aged more than 17 years and the same was denied. He admits that in terms of Ex.P9 to P15, the documentary evidence discloses that she was not subjected to any sexual act. 24. Having heard learned counsel for the appellant and learned Additional SPP for the respondent-State and also on re- analyzing the material on record, though P.W.1 reiterated the contents of the complaint Ex.P1, the Court has to take note of the material on record. P.W.1 categorically admits that Louis Corea belongs to their community and leader of their community and says that he was there in the police station and obtained her signature in the police station. Though, she claims that she screamed at the spot, when incident took place while taking her to bedroom, she did not scream, but when she was made to lie down on the ground, she started screaming and she has not sustained any scratch marks and though she claims that she was having pain in her private part, the same was not found in the medical evidence and she has got no injuries. However the Court has to take note of conduct of P.W.1 and though she says that she was subjected to sexual act, when her mother first visited the house, she did not complain about the same and on the next day, the victim also attended the church and school and from the date of incident till 21.07.2011, she did not disclose the same to anyone, except her friend i.e., neighbourer one Sameena and the said neighbourer is not examined before the Court. Though P.W.1 says that Louis Corea and accused was also there in the police station, according to the police, he was arrested on 24.07.2011, but she went to police station on 22.07.2011 itself. But, after she went to police station, the police did not secure the accused and prior to that the accused was there in the police and he was sitting on the cement bench. 25. It is also important to note that she admits that when she went to police station, same was not known to her father and brother, but evidence of P.W.2 is contrary and she states that the same was brought to the notice of her husband immediately. But, according to P.W.1, father and brother were not aware and they came to know about the same through P.W.2 on the next day. But, P.W.2 says that before coming to police station, she went to house of Louis Corea and there is a material contradiction in the evidence of P.Ws.1 and 2 for having lodged the complaint and about the presence of Louis Corea. It is the case of the accused also that Louis Corea was having grudge against him and complaint was given at the instance of Louis Corea. But evidence of P.Ws.1 and 2 is not consistent regarding presence of Louis Corea. P.W.1 says that before she went to the police station, he was already there in the police station. But, P.W.2 says that she only went to house of Louis Corea prior to lodging of complaint, but P.W.2 says immediately after P.W.1 revealed the incident, she brought the same to the notice of her husband P.W.3. But P.W.1 says her father and brother came to know about lodging of the complaint on the next day. But, P.W.2 says that she only went to house of Louis Corea prior to lodging of complaint, but P.W.2 says immediately after P.W.1 revealed the incident, she brought the same to the notice of her husband P.W.3. But P.W.1 says her father and brother came to know about lodging of the complaint on the next day. But, it is the specific case of P.W.2 that Louis Corea was not there in the police station when they went to police station and also confronted the statement of P.W.2 as Exs.D1 and D2 and also it is the specific case of the prosecution witness that there were tenanted premises surrounding the house of P.W.1 and P.W.1 house is also located near the house of P.W.4-shanthi and if anything happens in both the houses, the same is audible to both the houses. But, it is the case of P.W.1 that she screamed at the spot, but none heard anything. P.W.4 neighbourer says that she came to know about the incident only through P.W.2- mother, but she claims that she saw the accused going to the house of P.W.1. But, the same is not stated before the police and also she did not go and question P.W.1 that why accused came to her house and the statement also confronted to this witness in terms of Exs.D3 and D4 and she categorically says that she did not make such statement in terms of the same. 26. Having considered the evidence of P.Ws.1 to 4, relevant witnesses are P.Ws.1 to 3. P.Ws.3 and 4 depose that based on the information revealed by P.W.2, they came to know about the incident. But the very conduct of P.W.1 is doubtful and she says that she attended the school and church next day after the incident and only on the night of 21.07.2011, when she was weeping, the same came to the knowledge of her mother. But from 09.07.2011 to 21.07.2011, she was normal and attended the church and school and this creates doubt in the mind of the Court. Apart from that the FSL report is also not positive and witnesses have clearly deposed that they have taken seminal stains. But from 09.07.2011 to 21.07.2011, she was normal and attended the church and school and this creates doubt in the mind of the Court. Apart from that the FSL report is also not positive and witnesses have clearly deposed that they have taken seminal stains. The evidence of P.W.9 is very clear and also P.W.15, Doctor, who conducted examination of P.W.1 says that victim would be aged about 16 to 17 years, but in the complaint, age is mentioned as 13 years and evidence of the Doctor is based on x- ray examination and she was matured and not found any sign of subjecting her for sexual act. The very contention of learned Additional SPP is that that there was long gap between the incident and medical examination and the wound would have been healed and nothing is spoken about the same by the Doctor and the evidence of P.W.15 is very clear, if any men who is aged 35 years subjects a girl, who is aged below 12 years or above 12 years, if any such act is committed forcibly, there will be an injury on both of them and no such injuries found and P.W.16 is the Doctor, who examined the accused and states that there is no sign of sexual act on examination of accused. Having considered the entire evidence available on record, the same does not inspire the confidence of the Court, to come to a conclusion that P.W.1 was subjected to sexual act. 27. The principles laid down in the judgment relied upon by the learned counsel for the appellant is aptly applicable to the case on hand. No doubt, if prosecutrix evidence is consistent and the same alone is sufficient to convict the accused for the offence under Section 376 IPC, but the evidence of prosecutrix is not credible and doubtful with regard to the very scene of occurrence. The Court has to take note of conduct of P.W.1 and immediately after the incident, nothing is revealed and apart from that, no injuries are found on the victim. In the judgment of JOGI DAN’s case, it is held that, in case of rape, in the absence of injuries either on the accused or on the prosecutrix shows that the prosecutrix did not resist but absence of injuries is not by itself sufficient to hold that the prosecutrix was a consenting party. In the judgment of JOGI DAN’s case, it is held that, in case of rape, in the absence of injuries either on the accused or on the prosecutrix shows that the prosecutrix did not resist but absence of injuries is not by itself sufficient to hold that the prosecutrix was a consenting party. Non production of witnesses gathered after hearing cries of prosecutrix, conviction cannot be based on unreliable solitary statement of prosecutrix. 28. In the case of BHAGWAN CHARAN MATE’s case, it is held that in a case of rape, if there is no medical evidence and no injuries on private parts, Doctor’s opinion that no sexual intercourse committed and further Chemical Analyser’s report not corroborative, conviction is liable to be set aside. In this case, both medical as well as FSL report not supports the case of the prosecution. In the other judgment in RAHIM BEG’s case, when rape alleged to have been committed by a fully developed man on a girl of 10 or 12 years who was virgin and whose hymen was intact and absence of injuries on the male organ of accused would point to his innocence. But in the case on hand, though hymen is not intact, but in the cross-examination, it is also elicited that if a girl raids cycle and plays football match, there is a chance of hymen not in tact. 29. In the case on hand, medical evidence and FSL report goes against the prosecution and Trial Judge committed an error in coming to the conclusion that no mother will lodge the complaint and spoil the life of a daughter and the same cannot be a ground to come to such a conclusion that the accused committed sexual act on the victim. But, in the evidence of P.Ws.1 and 2, there is a clear contradiction with regard to the incident and the very conduct of P.W.1 after the incident allegedly taken place was normal, but material disclose that on disclosure of the incident to the mother, she was taken to the police station and hospital. The very case of the defence is also that when Louis Corea was having grudge against the accused and there was dispute with regard to the church property and also admittedly, he was a leader of community as admitted by P.W.1 and P.W.4 categorically say that P.W.2 was working under Louis Corea in his house. The very case of the defence is also that when Louis Corea was having grudge against the accused and there was dispute with regard to the church property and also admittedly, he was a leader of community as admitted by P.W.1 and P.W.4 categorically say that P.W.2 was working under Louis Corea in his house. It is also important to note that first she went to house of Louis Corea before lodging the complaint and thereafter, complaint was lodged and P.W.1 says father and brother were not aware of the same, but came to know about the same through her mother and P.W.1 also categorically says that Louis Corea was very much present in the police station when they went to lodge the complaint. The evidence of P.W.2 is contrary and P.W.1 categorically says that her signature was taken by Louis Corea when she went to police station. But according to the prosecution, he was arrested on 24 th and P.W.1 says accused was there in the police station on 22 nd itself and there are material contradictions in the evidence of prosecution witnesses and the same has not been properly appreciated by the Trial Court and merely because the victim deposed before the Court that she was subjected to sexual act and when the same is not trustworthy and credible, accused cannot be convicted for the said accusation and medical evidence and FSL evidence is contrary to the case of the prosecution and these are the discrepancies which are not taken note of by the Trial Court while convicting the accused. Hence, it requires interference of this Court by setting aside the judgment of the Trial Court by exercising the appellate jurisdiction. Accordingly, I answer point (1) as ‘affirmative’. Point No.(2) 30. In view of the discussion made above, I pass the following: ORDER (i) The criminal appeal is allowed. (ii) The impugned judgment of conviction and sentence is set aside. Consequently, the accused is acquitted for the offence under Sections 376 and 506 IPC. (iii) The bail bond executed by the accused stands cancelled. (iv) If the appellant has deposited any fine amount, the same is ordered to be refunded in favour of the appellant on proper identification.