Judgment

B. P. JEEVAN REDDY, J.:- This appeal is preferred by the State of Maharashtra against the judgment of a learned single Judge of the Bombay High Court allowing the Criminal Appeal filed by the respondents accused herein and acquitting them of all the charges. The learned Extra Additional Sessions Judge, Amravati had convicted both the accused-respondents under S. 376 read with S. 34, I.P.C. as well as under S. 342 read with S. 34, I.P.C. and sentenced them to rigorous imprisonment for three years on the first count and for two months on the second count.

2. The victim, Nirmala (P.W. 1) was originally a resident of Pathrot village where her parents continue to reside. She was married to P.W. 2, a resident of village Dahegaon. Every year a village fair called Dwarkecha Baill is held on the next day after pola at Pathrot village. P.Ws. 1 and 2 had come to Pathrot village to attend the fair. They were staying in the house of Nirmalas parents. The first respondent Prakash was a police constable working at headquarters, Amravati. He was deputed to village Pathrot on 6th September, 1978 for bandobast duty at the time of Ganapati festival. Second respondent, Sudhakar is a resident of the village. He is a businessman. An idol of Ganapati was installed in the courtyard of second respondent, Sudhakar.

3. According to the prosecution, on the night intervening 9/ 10th September, 1978, the second respondent went to the house of Nirmalas parents at about 2.00 a.m. and called out P.W. 2. P.W. 2 was taken to the house of second respondent. After a little while, P.W. 2 returned but was again called out by the first respondent, police constable. P.W. 2 again went to the house of second respondent. The first respondent caned P.W. 2 alleging that he was going to destroy the idol of Ganapati. The respondents asked both P.Ws. 1 and 2 to accompany them to the house of second respondent where P.W. 1 was asked to sign on certain papers under a threat that her husband would be placed in custody in case she does not sign the papers. The first respondent then took P.W.1 inside the house and committed the offence of rape upon her. Thereafter, the second respondent went inside and he too committed the said offence upon her. They threatened P. Ws. 1 and 2 not to report the matter to the police. Afraid of them, P.Ws. 1 and 2 went back to the house of P.W. 1s parents and spent the rest of the night there. On the morning of 10th September, P.W. 2 met another constable, Kailashpuri (P.W. 4) and told him of what happened on the previous night. P.W. 4 asked him to report to the police station. Accordingly, at 11.30 a.m. both P.Ws. 1 and 2 went to the Police Station, Pathrot and gave the first information (Exh. 10). P.W. 5, Sub-Inspector registered the offence, inspected the spot, seized a carpet and some other articles from the scene of offence including the saree and blouse of P.W. 1 and sent P.W. 1 for medical examination. On receipt of the medical report and the report of the chemical analyser, a charge-sheet was filed against both the respondents. They were committed by the learned Magistrate to Sessions Court for trial.

4. Seven witnesses were examined by the prosecution. The respondent-accused denied the offence altogether claiming that they have been falsely implicated. The learned Sessions Judge found them guilty and convicted and sentenced them as stated hereinbefore.

5. At the trial, P.Ws. 1 and 2 spoke to the prosecution case. Their evidence was corroborated by P.W. 4. The said evidence was accepted by the learned Sessions Judge. The learned single Judge of the Bombay High Court, however, took a different view. The learned Judge held on the basis of the first information (Exh. 10) that "there were no threats given to the prosecutrix so as to make her surrender her body to the appellants. It is also clear that the husband had left the place and yet she went inside the room of accused No. 2. It is apparent from this report that she did not shout till e