JUDGMENT : Patra, J. - This is an appeal against an Appellate order of the Sessions Judge, Sambalpur acquitting the Respondent of a charge u/s 376, Indian Penal Code. The victim Premalata a girl aged about 8 years and the Respondent are both Marwaris and residents of Dhanupali a suburb of Sambalpur town. The prosecution case is that on 19-5-1305 at about 2-30 P.M. Premalat went to the house of the Respondent in search of her mother. On her call, the Respondent opened the door of his house and came out wearing an underwear. She enquired about her mother and on being told that she was not there, she was coming back, but the Respondent again told her that her mother was in his house and so saying he took her to the cow-shed of his house and committed rape on her (sic) a result of which there was bleeding from her genitals. The girl came back borne and reported the incident to her mother and sister-in-law (brother's wife). Her father and brother were not at borne that day. Late that night the brother came borne and learnt about the incident and next morning convened a panchayat in the village which was attended by the Respondent. But the Panchayat could not decide anything. The father of the girl returned home that afternoon and then went with the girl to the Police Station at 6 P.M. where F.I.R. (Ex. 3) was lodged. The Police took up investigation and sent the victim girl for medical examination. P.W. 1, the Assistant Surgeon, Sambalpur examined the girl on 21-5-1965 and found no marks of violence either on her body or her face. There was no bleeding from her genitals nor blood clots were found there. The vulva was inflamed and red and the labis minors and vagina were congested. There was one laceration ?" long on the left lateral wall of the vagina and a small round tear on the centre of the hymen. The margins of the hymen were red. There was a sticky discharge from the vagina which on examination was found to contain intracellular diplococcic indicating the presence of gonorrhea but spermatoza was not found. In the opinion of the doctor the injuries could have been caused within 2 days before examination and could have been caused by sexual intercourse. The margins of the hymen were red. There was a sticky discharge from the vagina which on examination was found to contain intracellular diplococcic indicating the presence of gonorrhea but spermatoza was not found. In the opinion of the doctor the injuries could have been caused within 2 days before examination and could have been caused by sexual intercourse. In cross-examination the doctor said that sometimes thread worms creep into the genitals of a girl and causes irritation and instinctively the girl tries to allay the irritation by putting the finger inside and the possibility of the lacerations found on the left lateral wall of vagina of the girl by such fingering cannot be ruled out. The round tear of the hymen, according to the doctor, is the result of a thrust add such thrust may not necessarily be by intercourse, but may be given by mechanical process with a soft and hard substance. 2. After the information was lodged at the police station the police searched for the Respondent but he was not found in his house. It is only on the 24th that P.W. 6, the Investigation Officer got information that the Respondent had surrendered in the Court of the S.D.O. and bad been released on bail. He then Bent a requisition to the S.D.O. to direct the Respondent to appear before the doctor for medical examination. The Respondent appeared before him at 4-30 P.M. on 26-5-1965 when be was sent for medical examination. The doctor (P.W. 1) says that the Respondent was produced before him on the 26th evening for examination but as he did not agree to be examined, no examination could take place that day. The explanation given by the Respondent for not being examined on the 26th is that it is not true that he refused to be examined, but he did not give it in writing as desired by the doctor that be had faith in him and he would be responsible in case anything unfavourable was detected by examination of his genitals. The suggestion, however, was not put to the doctor during his cross-examination. Be that as it may, the Respondent was produced before the doctor next morning i.e. 27th at 10.40 A.M. and be found no marks of injury on his body or near about the genitals or on the penis, phrenam or force-kin. The suggestion, however, was not put to the doctor during his cross-examination. Be that as it may, the Respondent was produced before the doctor next morning i.e. 27th at 10.40 A.M. and be found no marks of injury on his body or near about the genitals or on the penis, phrenam or force-kin. His urethral smear was examined and found to contain pus cells, but no diplococci. 3. The victim girl Premalata (P.W. 2) was a student of the second standard in the Hindi Girls' M.E. School at Sambalpur. Her case is that at the time of occurrence were morning sittings of the school and she returned home at II A.M. In the afternoon she went to the Dhanupali school for private tuition and returned home at about 2.30 P.M. for taking refreshment. She searched for her mother at home and finding her absent she thought she might have gone to the house of her neigh hour the Respondent. She therefore went there and called out the wife of the Respondent 'Bhavi' 'Bhavi'. The Respondent opened the door and came out wearing an underwear. He told her that her mother was not in his house. While she was coming back he called her again saying that her mother was there. She therefore went in. Immediately the Respondent caught hold of her right hand and inspite of her protest, dragged her through the room where Respondent's wife find child were sleeping and took her to the nearby cow shed where he forcibly put her down, gagged her mouth by putting his hand across it and after removing her underwear and raising her legs upwards, penetrated his penis into her vagina. She tried to escape from his clutches and also bit his band and was throughout wriggling her legs. She was in this position, according to her, for about 5 to 10 minutes after which the Respondent got up and went away inside his house, he wanted to come out of the gate which was near the cow shed and found it locked from inside. There was, however, a small gap of about one foot between the door leaf and the ground and she crawled through it and came out of the gate. She came home weeping. On being questioned by her mother as to why she was weeping she disclosed to her all that had taken place. There was, however, a small gap of about one foot between the door leaf and the ground and she crawled through it and came out of the gate. She came home weeping. On being questioned by her mother as to why she was weeping she disclosed to her all that had taken place. Her mother (P.W. 3) deposed that Premalata came home weeping and limping and when she found blood strains on her under wear and in her genitals, she asked her as to how this had happened and Premalata told her all that had happened in the house of the Respondent. P.W. 3, it seems, wiped out the blood and washed the underwear (M.O.I.) and fomented the private part of Premalata with hot water. P.W. 4 is Premalata's step brother who heard of the incident after returning home that night and convened a panchayat next day which was attended by the Respondent. P.W. 5 is one of the persons who attended the Panchayat. According to both, the Respondent on being questioned regarding the incident merely stated "Mo Bhagyara Thila" (it was my bad luck). P.W. 6 is the Investigating Officer in this case. 4. The learned Assistant Sessions Judge, Sambalpur who tried the case believed the evidence of Premalata and held that her statement to her mother immediately after the occurrence afforded sufficient corroboration to her testimony regarding the incident. The medical evidence in this case, according to him, lent assurance to the girl's allegation that she was ravished, and the fact that after the occurrence the Respondent absconded for 3 or 4 days, was a piece of circumstantial evidence which supported the girl's allegation that the Respondent had ravished her. In the result., he found the Respondent guilty and convicted him and sentenced him to undergo R.I. for 3 years. The Respondent appealed to the Sessions Judge, Sambalpur. The learned Judge thought that Premalata's story bristled with certain improbabilities and as such it is difficult to rely solely on her testimony. The absence of any injuries on the person of the girl, the nature of the injuries found on her genitals and the absence of gonorrhoea in the urethral smear of the Respondent while gonorrhoea was found in the viginal smear of Premalata were considered by the learned Judge to be circumstances which threw considerable doubt on the prosecution case that the Respondent committed rape on the girl. He further held that the evidence on record was not sufficient to lead to the conclusion that the Respondent absconded from the village after the date of Occurrence. In this view of the matter, he gave the benefit of doubt to the Respondent and acquitted him. 5. This is one of those cases where there is no other eye witnesses to the occurrence and one is therefore left with the : evidence of the prosecutrix, who in this case happens to be a girl 8 years old Before proceeding to discuss the evidence of the girl and such of the circumstantial evidence upon which the prosecution relies in support of its case, it is necessary to reiterate the law relating to the question whether in a case of this kind it is necessary that the evidence of the prosecutrix should be corroborated and if so, the degree and extent of corroboration that is necessary. The Rule, which according to decided cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge, and in Jury cases, must find place in the charge, before a conviction without corroboration can be sustained. The tender year of the child which is the victim of a sexual offence coupled with other circumstances appearing in the case, such, for example, as her demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. The nature and extent of corroborative evidence whenever found necessary must necessarily vary with the circumstances of each case and according to the particular circumstances of the offence charged. But as pointed out in Rameshwar Vs. The State of Rajasthan, : (1) It is not necessary that there should be independent confirmation of every material circumstances in the sense that the independent evidence in the case, apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain conviction. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is reasonably safe to act upon it. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is reasonably safe to act upon it. (2) The independent, evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime. (3) The corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another. (4) The corroboration need not of correct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime. It is in the light of these principles that the evidence in this case must be judged. The entire prosecution case rests finally upon the evidence of the girl Premalata and it is therefore necessary to scrutinise her evidence with utmost care to determine whether the story told by her is true. She begins her story that on her return from the school, at what time exactly she came hack from the school is a matter of controversy to which I will advert later, she came home to take refreshment and searched for her mother. There are 8 rooms in her house, one of which is occupied by her and her mother and another by her brother and his wife. She knew that during summer afternoons her mother usually sleeps not in her own room hut in the room of her sister-in-law. Premalata's mother (P.W. 3) admits that on the afternoon of the date of occurrence she in fact was sleeping in her daughter-in-law's room, which is the first room one comes across on entering into the house and that the door of the room was kept open. But it is surprising that Premalata did not search for her mother in that room but looked for her in her own room and not finding her there went straight to the house of the Respondent. But it is surprising that Premalata did not search for her mother in that room but looked for her in her own room and not finding her there went straight to the house of the Respondent. If seeing her mother that afternoon was so urgent and for that purpose she felt it necessary to go to a neighbour's house to search for her, she could not explain why she did not search for her in the room where she knew that she used to sleep during the afternoons. She then said that after going to the house of the Respondent she called out the wife of the Respondent saying 'Bhavi' 'Bhavi', hearing which the Respondent came out. But in cross-examination she stated that finding all the rooms of the Respondent's house closed from inside, she did not like to knock there but went to the Respondent's garden which is near the kitchen on the back side of the house to search for her mother. When all the doors of the Respondent's house were closed why she thought that her mother would be in the Respondent's garden in that afternoon, is not explained. It is also not clear from her evidence whether from the garden she came back to the front side of the house and then called out for the Respondent's wife. The Respondent came out and told her that her mother was not there and while she was about to come back, the Respondent said that her mother was inside. It seems that she went in obviously to the room where the wife of the Respondent and his child were sleeping, but not finding her mother there she was about to come back, when the Respondent caught hold of her hand and dragged her. She protested and cried aloud. But despite it, she was dragged through the inner verandah and was taken to the cowshed. It is some what difficult to believe that the Respondent would have done this in the very room where his wife was sleeping and when his parents were sleeping in the adjoining room, because there was every likelihood of his wife and parents waking up on hearing the cries of the girl. The learned trial Judge has brushed aside this circumstance with the observation that in fact neither the wife of the Respondent nor his parents woke up. The learned trial Judge has brushed aside this circumstance with the observation that in fact neither the wife of the Respondent nor his parents woke up. But the probabilities are to be judged not by what actually happened but by what any ordinary person in the circumstances would have thought at that time. I am not prepared to believe that the Respondent was so foolish as to think that when he dragged Premalata her cries would not rouse his wife and parents from sleep. Further the prosecution case is that inspite of cries and protests the girl was taken to the cattle shed and according to her version, she was forciably pushed down on the ground, as a result of which her head struck down to the floor causing pain in the head. It is somewhat surprising that this did not cause either an injury or swelling on the head. It may be remembered that this cow-shed is not far from the residential building being only 52 feet off from it. Although P.W. 1 Bays that the floor of the cow-shed had been plastered with cement and was smooth, yet the very fact that cows were being tied there would indicate that the floor would not have remained as smooth as it is portrayed to be. The girl says that throughout the time the Respondent was engaged in the act, she was trying to escape from his clutches and was trying to wriggle her legs. But it is surprising that not a single scratch was found on her body when the doctor examined her. It is true, as pointed out by the learned trial Judge, that Premalata is of tender year and the Respondent is a grown-up person aged about 23 years and that therefore the girl could not have offered much resistance. But nonetheless from the evidence given by the girl, it is clear that she did offer resistance and in the usual course that would have been enough to leave traces of injuries on her person which admittedly were absent. But nonetheless from the evidence given by the girl, it is clear that she did offer resistance and in the usual course that would have been enough to leave traces of injuries on her person which admittedly were absent. Absence of bodily injuries may be explained on the hypothesis that the girl was a consenting party to the act complained of, hut in that case, she would be in the position of an accomplice and her evidence cannot be acted upon without sufficient corroboration in material particulars and in that case all her evidence in Court regarding dragging, weeping and struggling would not only be false but it would show that she is capable of concocting a false story. In either case, therefore, her evidence is such as is likely to create suspicion. 6. The medical evidence in this case to which reference has already been made, does not appear to improve the prosecution case. Cox, in his Medico-Legal Court Companion, (9th edition), points out at page 277, that the orifice of the hymen of children under ten is very small and will rarely admit the tip of the little finger and says at page 282 that if the hymen is ruptured in a child below the age of ten, it indicates that either the penis is more attenuated than normal or intromission has been accomplished with brute force. Such intromission, he adds, must always be accompanied by severe tearing of the genital organs. But the only injury we find on the person of the girl was one laceration long on the left lateral wall of her vagina and a round tear on the centre of hymen. In fact, P.W. 1, the doctor stated in his evidence that thread worm is a common disease among children and sometimes the thread worms creep into the genitals of a girl causing irritation and to allay the same girls put their fingers inside the genitals and adds that such an act may cause the injuries which he noticed in Premalata's genitals. There was neither bleeding from the genitals nor blood clots were found there, which if found, would have to some extent supported the case of rape. The explanation given by the prosecution is that after Premalata went borne her mother washed her private parts. There was neither bleeding from the genitals nor blood clots were found there, which if found, would have to some extent supported the case of rape. The explanation given by the prosecution is that after Premalata went borne her mother washed her private parts. This story of washing was given by P.W. 3 for the first time in Court and she had not mentioned about it during the investigation. The doctor no doubt found that the girl had been infected with gonorrhoea. This circumstance also does not improve the prosecution case. Firstly the infection need not necessarily be communicated through sexual intercourse because such an infection particularly in young girls and infants may be conveyed through infected hands or other articles. Secondly, when the doctor examined the urethral smear of the Respondent on 27-5-1965, be found that he was not suffering from gonorrhea thereby disproving that Premalata acquired this infection from the Respondent. It is argued on the Appellant's side that after the occurrence the Respondent might, have got himself treated gonorrhoea during the period from 19-5-1965 to 26-5-1965. This cannot be a matter of surmise. If there was any basis for this suggestion, investigation could have been made to find out whether and if so where from the Respondent received such treatment. The alleged unwillingness of the Respondent to be examined by the doctor on the 26th evening when he was first produced before him is sought to be used as a circumstance against the Respondent and it is urged on the Appellant's side that thereby the Respondent gained further time to get all traces of gonorrhea removed by treatment. I have already referred to the explanation which the Respondent gave for not consenting for medical examination on the 26th. That apart, there is no evidence that 011 the 26th evening the Respondent who by then must already have been under police surveillance (there is no indication on record as when exactly the Respondent was formally arrested by the police) had got himself further treated by any doctor. I therefore find that there is no evidence that the Respondent was suffering from gonorrhoea on the date of occurrence and this is a circumstance which goes against the prosecution case. On a consideration of the medical evidence therefore I find that far from lending support to the prosecution case it throws considerable doubt regarding its truth. 7. I therefore find that there is no evidence that the Respondent was suffering from gonorrhoea on the date of occurrence and this is a circumstance which goes against the prosecution case. On a consideration of the medical evidence therefore I find that far from lending support to the prosecution case it throws considerable doubt regarding its truth. 7. Premalata has stated that after the occurrence in the cattle shed she came out of the house by crawling under the gate of the Respondent's house which is situated near the cattle-shed. The door leaves of the gate are made of tin platexed to the frame and the gap between the lower part of the gate and the ground is only one foot and through this gap she came out without any scratch anywhere on her body. The unusual manner of escape from the house and the fact that throughout she was weeping was surprisingly not seen by anybody on the road. Here is a girl who came out of the Respondent's house by crawling under the gate and was weeping. According to her mother (P.W. 3) when Premalata came home she was weeping her underwear was blood stained and blood while coming out of her private parts. Such a scene would have attracted the attention of anybody on the road. But there is no evidence that anybody had seen her on that condition in the road. There appears to be considerable force in the suggestion made on behalf of the Respondent that it is precisely for this reason that the prosecution deliberately changed the time of occurrence from forenoon to afternoon to facilitate the argument that it being a summer afternoon people were most probably inside their houses and none was on the road. The case as put forward in Court is that Premalata had been to the Hindi School at Sambalpur in the morning and retuned home at 11 A.M. and after taking food at about noon went to Dhanupalli School for private tuition and that from there she came home at 2-30 p.m. to take refreshments. But the I.O. (P.W. 6) bad started that during investigation P.W.2 Premalata bad told him that she had been to the school and came borne during recess and saw her mother absent at borne. But the I.O. (P.W. 6) bad started that during investigation P.W.2 Premalata bad told him that she had been to the school and came borne during recess and saw her mother absent at borne. She did not tell him that she came borne from the school at 11 A.M. and at noon went to a private tutor and again came borne at 2-30 P.M. when she did not find her mother. The statement made by P.W. 3 on this point before the police was that Premalata had gone to the school at 10-30 A.M. and returned at 3 P.M. limping and weeping which does not fit in either with the present prosecution story or the version which Premalata had given before the police. It is well known that during summer months school session commences early in the morning and the schools are closed round about noon. The case as laid before the police was that this occurrence took place immediately after the girl returned from the school and according to this version the occurrence took place near about noon, which is not the time when people generally retire for rest. This story would not obviously have fitted with the prosecution case that inmates of the Respondent's house were asleep at that time. The Hindi teacher was not examined to prove that Premalata had gone to him for private tution on the date of occurrence and that she was in his school till 2.30 P.M. 8. Considering all the circumstances, I am unable to agree with the conclusion of the learned trial Judge, although he bad the opportunity of seeing the girl Premalata in the witness box, that the girl bad spoken the truth. If her evidence in this Court is to be believed there are several telling circumstances in this case and which have been referred to above that remain unexplained. 9. It is contended by the learned Advocate for the Respondent that this being an appeal against acquittal I should not disturb the finding of the learned Appellate Judge that the girl Premalata is unreliable. I am unable, however, to accept this contention. It is now well established that in an appeal u/s 417, Code of Criminal Procedure, the High Court has full power to review the evidence upon which the order of acquit (sic) is based. I am unable, however, to accept this contention. It is now well established that in an appeal u/s 417, Code of Criminal Procedure, the High Court has full power to review the evidence upon which the order of acquit (sic) is based. There is the equally well established rule that where the trial Court has acquitted an accused and there is an appeal against such acquittal, the presumption of innocence of the accused is further reinforced by his acquittal by the trial Court, and the finding of the trial Court which had the advantage of seeing the witnesses and bearing their evidence can be reversed only for very substantial and compelling reasons. I am however dealing here with a case where the trial Judge has convicted the accused and it is the Appellate Court who acquitted him. The rigour of the rule against interference with orders of acquittal should therefore be less in such cases. Whatever may be the value of the judgment of a trial Court which had the opportunity of seeing the witnesses and observing their demeanour, no such reason can be applied where the trial Court convicted the accused and it is the Appellate Court which acquitted, because in such a case the Appellate Court was in no better position to weigh the evidence than the High Court. Being well aware of the value that should be attached to the trial Court's assessment of the credibility of the witnesses, I am unable to hold that the testimony given by the prosecutrix is such as to inspire confidence to warrant a conviction of the Respondent. The fact that immediately after coming home she was questioned by her mother to whom the narrated the story does not in the circumstances of the case improve the position more so because of the long delay of more than 24 hours which elapsed between the statement made before the mother and lodging of the information before the police. It is said that by the time Premalata came home neither her brother nor her father was at home and Premalata's mother being herself unwell could not take any steps. Whatever may be the reason why P.W. 3 did not even care to inform her neighbour about the incident it was certainly not the fear of publicity because we find that on the very next day a Panchayat was convened regarding this incident. Whatever may be the reason why P.W. 3 did not even care to inform her neighbour about the incident it was certainly not the fear of publicity because we find that on the very next day a Panchayat was convened regarding this incident. The prosecution has not explained why P.W. 4, the step brother of Premalata who returned home on the night of occurrence did not lodge information before police early next morning, but got a Panchayat convened. It was only in the evening of the 20th that information was lodged before the police. The last circumstance urged against that Respondent is that immediately after the occurrence he absconded is that immediately after the occurrence he absconded from the village. The Respondent is a business man and he explains that in connection with his business he had been to Bargarh and came back home on 24th. If really the Respondent wanted to abscond he could have done so immediately after the alleged occurrence and would not have attended the Panchayat convened on the next morning. Merely because the Respondent was not in his house it cannot be said that he absconded and the fact that he returned to Sambalpur voluntarily after 3 days negatives the prosecution case that he had actually absconded. 10. I have very carefully considered all the aspects of the case and find that the evidence and circumstances are such that it cannot be said that the charge against the Respondent has been proved beyond all reasonable doubt. This appeal is therefore dismissed. Final Result : Dismissed