( 1 ) THE appellant has been convicted under Section 376, IPC and sentenced to undergo R. I. for seven years with a fine of Rs. 500/- or in default, to suffer four months R. I. , by the Third Additional Sessions Judge, Alirajpur, Dist. Jhabua, in Sessions Trial No. 12 of 1985, vide his judgment dated 23/04/1985.

( 2 ) PROSECUTION case was that on 13-91984, the prosecutrix Surli-P. W. 1 with her 'derani' Anbai-P. W. 5 and Devar (brother-in-law) Surla had been to the jungle of Atibayeda for collecting fire-wood. Around 3 p. m, she called Anbai and Surla, but as none responded, she proceeded home with a' Moli' - a bundle of fire-wood. While she was passing through 'khodari', it is said that, the accused along with Dungariya, Idla and one young boy, followed her. She was asked to stop. The prosecutrix parried as to why she should stop? It is said that, the accused expressed his desire to have intercourse with her. She was caught by the accused, Shankariya while Dungaria and Idla persuaded him to leave the prosecutrix, but he did not yield to their persuasions. Returning home, she reported to her husband and father-in-law and mother-in-law. It is said that the hour being late, the report Ex. P. 1 was lodged by her next day morning at 9 a. m. She was sent for medical examination. Ex. P. 3 is the report given by lady Dr. Gavali-P. W. 6. The radiologist, to whom she was referred, found her about 18 years of age and the trial Court has also recorded her apparent age as 22 years. There is no dispute about age in this case.

( 3 ) ON completion of investigation, the accused was tried for the above offence and sentenced, as stated above, hence this appeal.

( 4 ) SHRI Pradhan, learned counsel appearing for the appellant urged that considering the medical report and the testimony of other witnesses, it cannot be said that the prosecution has proved the charge against the accused. The evidence is weak and inconsistent. Shri Desai, learned panel lawyer, appearing for the respondent-State submitted that the conviction, as recorded by the trial Court, is well supported by evidence on record, does not call for any interference.

( 5 ) APART from Surli P. W. 1, prosecution has examined her mother-in-law Banibai P. W. 2, father-in-law Kansingh P. W. 3, her husband Ganpat P. W. 4 and Anbai P. W. 5 Anbai's husband Suria who had also gone to jungle, has not been examined by the prosecution. None amongst those. who according to the FIR Ex. P. 1, had intervened and persuaded to accused not to catch hold of the prosecutrix has been examined.

( 6 ) LADY Dr. Gavali P. W. 6 has categorically stated that seeing the chemical examiner's report Ex. P. 8, she could say that no intercourse had taken place with the prosecutrix. She is very clear and emphatic in her statement. The findings recorded by her in her report Ex. P. 3 do not support the, prosecution. Similarly the Chemical Examiner's report Ex. P. 8 which is also negative so far as seminal stains and presence of spermatozoa are concerned, nothing of the sort, was detected on chemical examination.

( 7 ) THUS the case hinges on the sole testimony of the prosecutrix Surli P. W. 1 and the evidence of her relations to whom she is said to have narrated the incident on reaching home.

( 8 ) IT is the case of the prosecutrix that she was dragged towards the 'khodari, and her whole body was scratched, but surprisingly enough not even a scratch was found on her body. The trial Court has very conveniently overlooked these infirmities in the prosecution The Chemical Examiner's report could have afforded valuable corroboration so also the medical examination but on both these scores the prosecution draws a blank. As rightly urged by the learned counsel for the appellant the trial Court has failed to consider the partisan nature of investigation, Idla. Dungariya and a young boy have been referred to the FIR Ex. P. 1 as the persons who were very much present on the spot in fact they had tried to persuade th