Honble GARG, J.–This appeal has been filed by the State of Rajasthan against the judgment and order of acquittal dated 20.7.87 passed by the Learned Additional Sessions Judge, Bhilwara by which the learned Additional Sessions Judge acquitted the accused respondent for offence under Section 376 and 342 I.P.C.

(2). This appeal arises in the following circumstances:

(i) On 6.4.86 at about 3 a.m. P.W. 2 Ladu W/o Bheru (hereinafter referred to as the Prosecutrix) lodged a written report Ex.P/1 with the Police Station Kachhola, District Bhilwara stating that on 5.4.86 at about 3 p.m. when she was in the house of Sita Ram Khatik and was going some labour work of lime, the accused respondent came there and stopped her near the gate and after closing the door, caught hold of her hand and thereafter committed rape with her. After hearing her cries P.W. 3 Mst. Nandu came there and seeing her, he ran away.

(3). On this report police chalking out regular FIR Ex.P/1 and started investigation.

(4). During investigation, the accused respondent was got arrested through Fard Ex.P/3 on 8.8.86 and medical examination of the prosecutrix was got conducted and her medical examination report is Ex.P/14.

(5). After investigation challan was filed by the police against the accused respondent in the Court of Magistrate, from the where it was committed to the Court of Sessions Judge, Bhilwara, from where it was transferred to the court of Additional Sessions Judge, Bhilwara.

(6). On 26.9.86 the charges for offence under Sections 376 and 342 I.P.C. were framed against the accused respondent who pleaded not guilty and claimed trial.

(7). During trial, as many as 14 witnesses have been produced on behalf of the prosecution and statement of accused respondent was recorded under Section 313 Cr. P.C. and no witness was examined in defence.

(8). After conclusion of the trial, the learned trial Judge acquitted the accused respondent for offence under Sections 376 and 342 I.P.C. through his judgment and order dated 20.7.87 inter alia holding :

(i) That what was done by the accused appellant was with the tacit consent of P.W. 2 Ladu.

(ii) Further more in coming to the conclusion that there was consent of the prosecutrix in having sex with the accused respondents, the learned Additional Sessions Judge has assigned so many reasons at page 5 of the judgment and he has also placed reliance on Ex.D/1,an affidavit dated 22.5.86 submitted by PW. 2 Ladu herself.

(9). Aggrieved from the said judgment and order of acquittal dated 20.7.87 this appeal has been filed by the State of Rajasthan.

(10). In this appeal, the learned Public Prosecutor has argued that the findings of learned Judicial Magistrate by which he acquitted the accused respondent are erroneous one and they should be set aside and his state appeal should be allowed.

(11). On the other hand, the learned counsel for the accused respondent submits that the judgment and order of the trial Judge are based on correct appreciation of evidence and the same do not call any interference by this Court.

(12). I have heard both and perused the record.

Burden of Proof

(13). In a case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and her mother have falsely implicated the accused. The evidence of the prosecution witnesses cannot be accepted merely because an accused person has not been able to say as to why they have come forward to depose against him. However, great the suspicion against the accused and however strong the moral belief and conviction of the Judge, unless the offence of the accused is established beyond reasonable doubt or beyond the possibility of reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and th

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