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7. The prosecutrix has stated that she was taken by the appellant forcefully when she was coming back to her

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Criminal Appeal No.1893 of 1997 house. He tried to take her in the park but, she did not went inside the park and thereafter, he took her with help of her sister Sangeeta to his house, where he committed rape upon the prosecutrix. Smt. Sandhya Pandey (P.W.1) and Ravikant Pandey (P.W.2) have stated that soon after the recovery of the prosecutrix, she told that story to them. However, that story appears to be prepared afterwards. In case diary statement of the prosecutrix, Ex.D/5, she had stated to the police that her rape was committed in the garden, whereas she turned her version in her statement under Section 164 of the Cr.P.C. and also before the trial Court. The incident took place on 20.9.1994. Her case diary statement Ex.D/5 was recorded on the same very day, whereas her statement under Section 164 of the Cr.P.C. was recorded on 17.10.1994 i.e. approximately after four weeks of the incident. When the prosecutrix changed her version from her previous statement to her subsequent statement then, there may be two possibilities. Firstly, that the police had not recorded her correct statement and secondly, that she wanted to change her version drastically. In the present case, it was not the allegation of the prosecutrix that her statement was not recorded by the police in complete manner.

Criminal Appeal No.1893 of 1997 that such rape could not be done in broad day light at an open place like park, therefore, the entire version of the prosecutrix was changed. She took a somersault.

11. According to the case diary statement, the alleged rape was committed at park. Case diary statement is not a substantial piece of evidence. It can be used only for contradictions and omissions and therefore, when the prosecutrix did not continue with the same story, with help of case diary statement, it cannot be said that any rape was committed upon her in the park and therefore, story of rape committed in the park appears to be not proved. The prosecutrix had alleged that the appellant committed rape upon her at his room but, she did not tell such a story soon after her recovery and therefore, the present story is nothing but, an after thought version of the prosecutrix which was given to the police after four weeks of the incident. Also, Dr. (Smt.) Shama Choudhary (P.W.7) who examined the prosecutrix and gave her report, Ex.P/8, in which she found that hymen of the prosecutrix was intact and her vagina was so tight, so that a small finger could be inserted in her vagina with difficulty. It is not the case, in which there is only allegation against the appellant about penetration. The prosecutrix had alleged about complete intercourse and in FSL report, Ex.P/16, semen particles were found in the

12. It is the settled view of Hon'ble the Apex Court that there is no need of corroboration from the side of medical evidence to believe the prosecutrix but, if the necessary medical evidence is not available and the medico legal examination negativates the allegation of the prosecutrix then, such evidence can be taken into consideration.

13. On the basis of the aforesaid discussion, when the prosecutrix changed her version that rape was not committed with her in the park but, it was committed in the room, her deviation from her original allegation indicates that she alleged about the rape in the room against the appellant in an after thought manner. Allegation is contradicted by the medical evidence and therefore, the testimony of the prosecutrix cannot be believed that the

16. Initially, it was alleged by the prosecutrix that she went to the place of tuition due to wrong information given by one Vijay and when she was coming back, she was held by the appellant and rape was committed upon her in the park and thereafter, she was taken to the house of the appellant. Again she turned her version that rape was committed in the house of the appellant and her father and mother came to the house of the appellant to enquire about the prosecutrix but, she was confined and she was released in the late night but, looking to the material contradiction in her statement with her case diary statement and her conduct that she changed her version drastically, also, she