The credibility of the prosecution case and the evidence of the prosecutrix is crucial in determining the guilt of the accused.

ORDER

1. The respondents herein were charged with commission of an offence under Section 342 and under Section 376 IPC. They were sentenced to a undergo three months rigorous imprisonment and to pay a fine of Rs. 500 for the offence under Section 342 and two years rigorous imprisonment and fine of Rs. 500 for the offence under Section 376 IPC.

2. The prosecution case briefly put was: On 13 - 8 - 1979, in the evening, Bhanwar Singh, Respondent 1 herein (since deceased) had sent a boy named Gopia to the prosecutrix herein. She was asked to visit Respondent 1 on the b pretence that he was having fever and injection was required to be given. Respondent 1 was himself a physician. From the prosecution case, it appears that both the respondents committed the alleged offence. Having regard to the order proposed to be passed by us, we need not deal with the matter in detail. Suffice it to say that the trial court opined:

1. That Trishiamma had narrated the incident to Ramsingh while C going on foot from Anapur to Dantrail.

2. That Trishiamma had gone to Dr. R.C. Gupta, PW 4 in Revdar along with Sosamma. She had narrated the incident to him also and submitted report Exhibit P - 4.

3. That Trishiamma, PW 11 had gone to the Chief Medical Officer, Sirohi and submitted the report Exhibit P - 4 to him. Trishiamma had submitted the report Exhibit P - 4 to SHO, PS Sirohi on the advice of the Chief Medical Officer, Sirohi.

4. That the underwear, Article 2 of Trishiamma was recovered from the room which was in possession of the accused.

5. That the petticoat, Article 1 was handed over to the police by e Trishiamma and on chemical examination, human semen stains were found on it.

6. That during the medical examination of Trishiamma injuries were found on her cheek and genital organ which show that she was raped.

7. That at the time of the alleged incident, Rangubai had gone to the , house of the accused and she had found his room closed from inside and the accused had asked her to go away from there at that time.

3. The learned trial Judge believed the prosecution case and in particular the evidence of the prosecutrix. The learned trial Judge also opined that the statement of the prosecutrix has been corroborated in material particulars by other materials brought on record. The High Court, however, by reason of the impugned judgment did not meet any of the reasonings of the learned trial Judge. It held:

" ... The prosecutrix was a nurse. Her evidence is not reliable .... "

It further opined:

" ... In fact, it has come in evidence that there were relations between the accused and the prosecutrix. Therefore, it is very difficult to rely upon the testimony of the prosecutrix ...."

We do not subscribe to the said approach of the High Court.

4. The question which arose for consideration before the High Court was as to whether the prosecution has proved its case or not. The trial court held that the alleged relationship between the prosecutrix and Respondent 1 herein was of no consequence, particularly, having regard to the manner in which the entire incident had taken place.

5. It is one thing to say that what sentence should be imposed, but it is another thing to say that only because a lesser sentence was imposed by the trial court, the same itself would be a ground for acquitting the respondent - accused.

6. We are, therefore, of the opinion that the matter should be considered afresh by the High Court.

7. For the reasons aforementioned, the impugned judgment is set aside. The appeal is allowed and the matter is remitted back to the High Court for consideration of the matter afresh.

8. Respondent 1 herein is said to be dead. The appeal against him abates. The High Court shall thus proceed only against Respondent 2. The High Court upon fixing a date of hearing shall issue notice to Respondent 2 herein.