JUDGMENT

AHMADI, J.:- Special leave granted.

Smt. Koyali, wife of PW 5 Tulchharam, complains that she was raped by the respondent Narayan on the morning of 23rd October, 1976 when she had gone to the cattle-shed to serve fodder to the cattle. The accused Narayan who is the brother-in-law of PW 5 Tulchharams sister entered the cattle shed and finding the prosecutrix alone gagged her mouth and forcibly tried to take her inside but on her resisting threw her on the ground on the spot and raped her. The prosecutrix cried for help and struggled with the accused to save her honour. Her cries attracted the attention of PW 4 Joga Ram and PW 7 Bherudan. Bherudhan reached the spot first in point of time followed by Joga Ram and saw the accused on top of the prosecutrix. He pulled him up with one hand and consoled the prosecutrix who was weeping. Thereafter the accused ran away from the scene of occurrence and met PW 5 Tulchharam on the way who saw him tying his Dhoti from behind. The prosecutrix told PW 4 and PW 7 that the accused had forcibly violated her person. She complained that notwithstanding her protestations the accused over-powered her and had intercourse with her against her will. In the- struggle her garments were torn and she also suffered certain abrasions on the elbow joints and on the lumber region as the ground on which she was laid was rough and uneven. She also narrated the incident to her husband PW 5, an army man who had come to the village to celebrate Diwali which had fallen on the previous day. He was dissuaded by the accused and others from filing a complaint and was threatened with certain consequences if he did so. However, two days later he went to Merta with his wife to lodge his complaint Exhibit P3. Thereafter the investigation was taken up by the police and in the course of the investigation the statements of the aforesaid two eye-witnesses PW 4 and PW 7 came to be recorded. PW 1 Dr.R.P. Soni examined the prosecutrix on 25th October, 1976 and found that her clothes were torn, they carried slightly watery and blood like discharge stains and there were teeth marks, two in number, on her left breast near the nipple. On internal examination he found both the labia majora and minora and the clitoris swollen and read with slight bleeding discharge and the walls of the vagina tender with slight swelling. He also noticed abrasions on the back at the lumber region and on both the elbow joints. In his vaginal smear on microscopic examination showed 90% of dead sperms and 10% of live sperms. On the basis of these findings he concluded that the duration of the rape could be about 24 to 48 hours. After the police completed the investigation it submitted a charge-sheet alleging that the accused had committed offences punishable under Sections 452, 376, 342, 323 and 147 of the Indian Penal Code. The learned Sessions Judge, Merta by his judgment and order dated 22nd November, 1978 found the accused guilty under Sections 376 and 451, IPC and sentenced him to suffer rigorous imprisonment for two years and to pay a fine of Rs. 1000/-, in default to suffer rigorous imprisonment for three months on the first count and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/-, in default to undergo rigorous imprisonment for one month on the second count. The substantive sentences were to run concurrently.

2. The accused, feeling aggrieved by this order filed an appeal, being Criminal Appeal No. 423/78, in the High Court of Rajasthan at Jodhpur. The said appeal came up for hearing Before a learned single Judge, who by his judgment and order dated 15th March, 1988 (reported in 1988 (1) Raj LW 278) reversed the order of conviction and sentence passed by the learned Sessions Judge and acquitted , the accused. With regard to the prosecution version regarding the incident having happened on the morning of 23rd October, 1976 in the cattle-shed of PW 5, the learned single Judge observed (para 9):

"It appe