This appeal is directed against the judgment and order dated 22.7.87 passed by the Sessions Judge, Darrang, Mangaldoi in Sessions Case No.65(DM) of 1985 convicting the accused-appellant under section (57 of Indian Penal Code and sentencing him to undergo rigorous imprisonment for three years and to pay a fine of Rs.l,000/-in default to undergo rigorous imprisonment for three months more and also convicting under section 376 IPC and sentencing to undergo rigorous imprisonment for seven years and to pay fine of Rs.1000/-and in default to undergo further rigorous imprisonment for three months. 2. The facts of the case may be briefly stated as follows : On 15.3.83 an, ejahar was lodged by PW6 Sri Kamala Kanta Nath, brother of the prosecutrix, stating inter alia that on 15.3.83 at about 8.30 PM the accused-appellant entered into the house and committed rape on her sister Bimala Bala Nath, alias Devi, when he found her alone. Smti Bimala Bala Nath raised hue and cry. On hearing hue and cry his brother Rasadhar Nath came running and found, the appellant was in compromising position with her sister. Police registered a case and commenced investigation. During investigation police examined witnesses and thereafter submitted charge sheet under section 457 read with section 376 IPC. 3. During trial, seven witnesses including the Doctor (PW 5) and Investi­gating Officer (PW 7) were examined. Thereafter, the Sessions Judge examined the accused and his statement was recorded under section 313 CrPC. The Sessions Judge found the accused-appellant guilty under both sections and accordingly sentenced him as stated above. 4. Being aggrieved the appellant preferred this appeal. I have heard Mr. KP Pathak, learned counsel for the appellant and Mr. BB Narzary, learned Public Prosecutor. Mr. Pathak submits that there is no evidence to show that the accused committed rape on the prosecutrix (PW 1). The story told by the prosecution is absolutely unbelievable. Besides, there is no medical evidence to show that the accused/appellant committed rape on the prosecutrix (PW 1). 5. Mr.Pathak has drawn my attention to the deposition of the prosecutrix (PW 1). According to her statement, she was sleeping on her bed at about 8.30 PM and the accused entered into the house and committed rape on her forcibly. The appellant put off all the clothes of the prosecutrix and thereafter, committed rape. 5. Mr.Pathak has drawn my attention to the deposition of the prosecutrix (PW 1). According to her statement, she was sleeping on her bed at about 8.30 PM and the accused entered into the house and committed rape on her forcibly. The appellant put off all the clothes of the prosecutrix and thereafter, committed rape. Meanwhile on hearing the hue and cry her brother Rasadhar Nath (PW 4) rushed to the place and saw the appellant committing rape. Thereafter, PW 4 locked the door from outside keeping both of them inside. According to Mr. Pathak, this is absolutely unbelievable as no brother will allow a rapist to remain with his sister in a naked condition as alleged. It is nothing but a cooked up story just to implicate the accused-appellant. 6. PW 3 Smti Padeswar Devi, the mother of the prosecutrix, in her statement stated that she on hearing hue and cry came to the place and saw both appellant and prosecutrix inside the room and the door was locked. PW 4, Rasadhar Nath, elder brother of the prosecutrix was present at that time. PW 4 also informed PW 3 that the appellant committed rape on PW 1 (pros­ecutrix). However, PW 4 gave a different story. Both the mother (PW 3) and prosecutrix (PW 1) stated that it was PW 4 who came running and found, both the accused and prosecutrix in a compromising position and he locked the door of the room keeping the accused and prosecutrix inside the room. 7. PW 4 stated that he came on hearing the hue and cry of his sister (prosecutrix) and found both his sister and the accused-appellant were sitting on a cot and his mother was present. Being ashamed he went away doing nothing. He further stated that his mother (PW 3) fearing that the younger brother might beat the appellant, locked both of them inside the room. But the PWs 3 and 4 stated that it was PW 4, who first came and locked the door. According to Mr. Pathak,on the basis of ttte contradictory statement it is not safe to convict the accused-appellant. Mr. Pathak further submits that there was no medical evidence. PW 5, Dr. Basanta Kumar Barua examined both the appellant and the prosecutrix on the same day. According to Mr. According to Mr. Pathak,on the basis of ttte contradictory statement it is not safe to convict the accused-appellant. Mr. Pathak further submits that there was no medical evidence. PW 5, Dr. Basanta Kumar Barua examined both the appellant and the prosecutrix on the same day. According to Mr. Pathak, the evidence of the Doctor has no value and there is nothing on record to show that he gave his evidence on the basis of the findings recorded at the time of examination. That being so, no credence should be given to his evidence. Moreover, the occurrence took place in March 1983 and the Doctor gave his evidence after more than three years i.e. in November 1986, such evidence cannot be taken into consideration. 8. Mr. Narzary, learned Public Prosecutor strenuously argues that though there is nothing to show that the evidence of Doctor was given on the basis of certain record, but there is a medical report in the case record. There­fore, on the basis of this, the Court can take into consideration of this medical report. I am afraid, this will not be in accordance with the provisions of law, as the medical certificate is not admissible in law. 9. Even if the medical evidence is taken into consideration, now it is to be seen whether the accused appellant committed rape. In the evidence of Doctor the age of the prosecutrix was given 19 years, however, it is not known on what basis he found the age as 19 years. He found sign of recent intercourse. He also examined the accused-appellant and found sign of recent intercourse. But that by itself is not sufficient to bring home the offence under section 376 I PC. Admittedly the girl was major as per the statement of PW 5, the Doctor. But at the time of recording of evidence the age of the prosecutrix was shown as 23. If that is so on the date of occurrence she was aged about 20 years. Therefore, the appellant can be convicted only if he had sexual inter­course against the consent of the prosecutrix. In order to determine, whether consent was given or not, it was the duty of the Doctor to note down marks of violence on the body of the victim^ such as, forearms, wrist, face, breasts, chest, lower part of abdomen, inner aspects of thighs and back. In order to determine, whether consent was given or not, it was the duty of the Doctor to note down marks of violence on the body of the victim^ such as, forearms, wrist, face, breasts, chest, lower part of abdomen, inner aspects of thighs and back. To determine the violence, the Doctor, has to examine the marks on the body, such as scratches, abrasions and bruises, which may result, because of struggle. But in the instant case, the Doctor clearly stated that he did not make any internal examination. Outwardly, he found that the prosecutrix was well dressed and her clothings were not examined as there was no sign of any external violence. Under these circumstances, it can be a case of having intercourse with the consent of the prosecutrix.These evidence are not sufficient to convict a person under section 376 IPC. There is also no evidence, whatsoever, regarding lurking house trespass. Therefore, he cannot be convicted under section 457 IPC also. 10. I, therefore, find sufficient force in the submissions of Mr. Pathak, counsel for the appellant. Accordingly, I set aside the impugned judgment passed by the learned Sessions Judge. The appellant is set at liberty and discharged from the bail bond, if any. In the result, the appeal is allowed.