JUDGMENT T.K Chandrashekhara Das, J. - The appellant is the accused in Sessions Case NO.6 of 1991 on the file of Assistant Sessions Judge (A) South Goa, Margao. He was convicted and sentenced under Sections 342 and 376 of Indian Penal Code by the Court below. 2. According to the prosecution, on 14-21990 and 15-2-1990, the prosecutrix Kum. Meenakshi, who is a mentally retarded girl, was subjected to wrongful confinement and raped by the appellant. In convicting the appellant, the Court below has mainly relied upon the statement given by the appellant under Section 313 Cr. P.C. According to that statement, he admits that on 13-2-1990 when he was expecting some guests in his house, he saw this girl Meenakshi at around 10.00 A.M. sitting at the balcony of neighbouring house belonging to Serafio Luis and the said girl was talking to one Serafio's wife. At 11.30 A.M., on the same day, while he was returning from the market he saw the girl through his window at a distance having a small bundle in her hand and after around 12 noon his guests arrived and they had meals and left his house at around 3.00 P.M. to go to Margao to his brother's house. After sending off the guests he returned home and on his way he met Mrs. Linda Dias, P.W.1, who asked him if he had seen Meenakshi to which he told her that he had seen her in the morning and not thereafter and, according to the appellant, Mrs. Linda Dias then told him that she was proceeding to Police Station in order to lodge a complaint of missing of Kum. Meenakshi. 3. On 14-2-1990 when he got up in the morning he saw Kum. Meenakshi is sitting on his balcony and crying. He asked her to go to her house, i.e. to house of Mrs. Linda Dias to which she refused saying that she would get more beating. He also stated in 313 Cr. P.C. statement that she was telling him that she had pain in her neck and some bruises at which time he called her inside his house and gave her some breakfast after which he left to Margao as he had to go to Mamlatdar's Office. However, he has chosen to report the matter to the Parish Priest about the precarious situation in which the girl was put. However, he has chosen to report the matter to the Parish Priest about the precarious situation in which the girl was put. The Priest in turn told him to report the incident to the Police Station. He then returned home, took his food and a1so gave food to Meenakshi and came to Margao Police Station at around 4.00 P.M. According to him, Margao Police Station gave him a note written in Marathi which he could not read nor understand and asked him to report the matter to Maina-Curtorim Police Station which he could not do on the same day because it was late and as such he thought of giving the said note on the subsequent day. He stated that Meenakshi slept in one room that night and he in the other. 4. On 15-2-1990 he went to the Church for Mass, at which time the Priest asked him what he had done to which he showed the note that the Margao Police had given and, accordingly, proceeded to Chandor Out-Post which comes under the Maina-Curtorim Police Station. The police came along with him to his house and took some statements from him and from Meenakshi after which the said girl was taken to Margao Police Station. On the same evening, the same policeman came to his house at about 7.30 P.M. and called him to Margao Police Station for his statement to which he said that as it was too late he would come on the subsequent day i.e. on 16-21990. Accordingly, on 16-2-1990 he went to Margao Police Station. When he went to Margao Police Station the police started shouting at him accusing him that he had committed rape and it was revealed by medical examination, which fact he denied. At this time, P.W.1, Mrs. Linda Dias, also started insulting him at the Police Station and asked the Margao Police to return the girl to her, to which the police said that the medica1 report was awaited and as such she could not be released. The police told her to go away and return on 20-2-1990. What had happened subsequently need not be repeated here. Subsequently the Police arrested the appellant and produced him before the Magistrate and after framing the charge the trial went on. 5. The police told her to go away and return on 20-2-1990. What had happened subsequently need not be repeated here. Subsequently the Police arrested the appellant and produced him before the Magistrate and after framing the charge the trial went on. 5. According to the charges framed against the accused, he, on 13-2-1990 and 14-2-1990 kept P.W.4 in his custody and during these he committed rape. The lower Court has strongly relied upon the evidence of P.W.4, the prosecutrix, and P.W.2, Dr. Audi, who examined her, for its conclusion. She deposed before the lower Court that in the year 1990 she was working as maid servant in the house of Mrs. Linda Dias at Chandor, P.W.1, after she was brought from Belgaum. She knows the accused. She a1so says the accused was staying behind the house of the said Linda. She deposed that about 2 years ago, the accused called her to his house at about 8.00 A.M. There were no other persons in the house of the accused at that time. The accused closed the door of the house, gave he food and Rs. 5/- and removed her clothes. The accused put her on the mattress on a cot. The accused caught hold of her and touched the lower part of her body. The accused told her that he would take her to Belgaum. The accused also took her photograph. At about 4.00 P.M. on the same day the police came and blood was coming out. She has told about the incident to the police and also to P.W.1. She also told that there are many houses near the house of Mrs. Linda and the accused told her not to tell anybody as to what had happened. In cross-examination she stated that she was not willing to go to the house of P.W.1. She also deposed that the accused told her that he would send her back to Belgaum. She has stated in her cross-examination that the accused and P.W.1 Mrs. Linda were not in talking terms. It is at the Police Station that she was handed over to the said Mrs. Linda Dias. She also stated in cross-examination that while she was sleeping the accused touched her body. She has stated in her cross-examination that the accused and P.W.1 Mrs. Linda were not in talking terms. It is at the Police Station that she was handed over to the said Mrs. Linda Dias. She also stated in cross-examination that while she was sleeping the accused touched her body. She repeated that he touched the stomach and thereafter the accused closed the windows of his house and in the morning both of them went out of the house of the accused. 6. The medical testimony of P.W.2 who examined P.W.4 reveals that there was a bruise 1.5 x 1 cms. reddish blue in colour on right labia majora at lower part. The hymen showed a tear at 2. O'clock position. The edge of hymen was swollen, tender and congested. The tear of the hymen was extended to the wall of the vagina. According to him, a hard blunt object, may be an erected penis, entered into the vagina. He also estimated the age of the injury in the genital as more than one day but less than five days, when she was subjected to medical examination on 162-1990. The lower Court, relying on the testimony of P.W.4, the prosecutrix, and the medical evidence of P.W.2, has come to the conclusion that the accused has committed the offence for which he was charged. 7. Based on the statements made by the accused under Section 313 Cr. P.C. and the depositions of P.W.4 and the Medical Officer P.W.2, the learned counsel for the appellant, Mr. Usgaonkar, argued that there is absolutely no evidence before the lower Court to find the appellant guilty for which he was convicted. Then he drew my attention to 313 Cr. P.C. statement of the appellant. Almost all the relevant parts of the statement have been referred to by me in the earlier part of this judgment. But the material thing he stated is that Mrs. Linda Dias might have fabricated the story of rape probably because she became embarrassed of the fact that the accused had reported the matter to the police who might have questioned Meenakshi and might disclose the truth about the ill-treatment meted out by her to prosecutrix. However, the accused and the P.W.1 reside close-by and admittedly they are not in good terms. 8. Coming to the deposition of P.W.4. She says that she was brought from Belgaum by Mrs. However, the accused and the P.W.1 reside close-by and admittedly they are not in good terms. 8. Coming to the deposition of P.W.4. She says that she was brought from Belgaum by Mrs. Linda Dias, P.W.3, sometime back as maid servant. In chief examination she says that at about 8.00 A.M. on that particular day before 2 years the accused called her to his house and gave her Rs. 5/- and some food and removed her clothes. The accused put her on a mattress on the cot and caught hold of her. The accused touched the lower part of her body. To the further questions as to what had happened further, the Court recorded that she was keeping silent. She also says that a photo was taken by the accused and he promised her that she will be taken back to Belgaum. At about 4.00 P.M. the police came and she was taken to the Police Station. She says that there was bleeding and the Court recorded that he kept silent when she was asked from where it was bleeding. In cross she says that "Mrs. Linda Dias used to come and meet me at Bal Niketan and she was telling me what to depose in the Court". On the day she was examined also Mrs. Linda Dias, P. W.1, was in Court. She also admits that on one day on previous occasion she was running away from the house of Mrs. Linda Dias and went towards Quepem and from where she was brought back. Then she admits also that this time also she ran away from the house of Mrs. Linda. Then she says: "After I ran away I came and sat in the balcony of the accused. When the accused was going out of the house he told me to wait till he returns". Then she stated because I was hungry the accused gave me food. It is true that I did not want to go to the house of the said Linda.... the said Linda took me to a Doctor at Benaulim. It is only thereafter I was sent to Bambolim Hospital". Then she narrates that the accused touched her body and stomach and the lower part. It is true that I did not want to go to the house of the said Linda.... the said Linda took me to a Doctor at Benaulim. It is only thereafter I was sent to Bambolim Hospital". Then she narrates that the accused touched her body and stomach and the lower part. She also says that "in the morning both of us went out of the house of the accused in the police station at Curtorim." Her evidence has to be examined in the light of her mentally retarded condition and the control and influence which was exerted by Mrs. Linda Dias over her. 9. Going through the evidence of P.W.4, she was not compelled by the accused to go to his house and wait at the balcony of the accused. In fact, she says she was going away from Mrs. Linda's house and after she came back she was waiting at the balcony of the accused. In 313 statement of the accused, he also corroborates this aspect of the case. It is almost admitted she was to leave Mrs. Linda with whom she was staying as maid servant and in such circumstances, it is quite probable and natural that P.W.4 might have gone to the house of the accused who was an aged man of 70 years of age for help. It has come out in the evidence that she was hungry and accused had given her some food. One cannot see anything unnatural in a 70 year old accused feeling sympathy for an innocent and helpless girl who wanted to run away from the clutches of her mistress who was ill-treating her. It is also quite possible that for safeguarding the interest of the prosecutrix the accused might have suppressed the fact of hiding the prosecutrix in his house from Mrs. Linda Dias when she asked accused about P.W.4. Probably the whole case might have developed with the estrangement of Mrs. Linda Dias with the accused of having kept the girl in his custody when the girl was running away from her house. In these circumstances, the lower Court was not at right in finding the accused guilty under Section 342 I.P.C. Necessary ingredients for the offence under Section 342 I.P.C. have not been established by the prosecution as regards the keeping of P.W.4 in the accused’s house. In these circumstances, the lower Court was not at right in finding the accused guilty under Section 342 I.P.C. Necessary ingredients for the offence under Section 342 I.P.C. have not been established by the prosecution as regards the keeping of P.W.4 in the accused’s house. There is absolutely no evidence that accused detained P. W.4 in his custody against her will and the case set up by the accused in much more probable than what has been stated by the prosecution. D.W.1 says he had seen P.W.4 sitting on the footsteps of the house of the accused and the house was seen closed. This means that P.W.4 was waiting for accused. This also emphasizes her visit to the house of the accused was a voluntary action. Police had recorded the statement of a Parish Priest who said that accused had sought his advice as to what to be done with P.W.4. But he was not examined. The lower Court blamed the accused for not examining him. This is quite irregular. Prosecution has no explanation why it has not examined him. The benefit of doubt of non-examination of Parish Priest in such circumstances is to go to accused. With all these circumstances, the only irresistible conclusion that can be arrived at is that P.W.4 had voluntarily gone to the house of the accused and stayed their voluntarily. Therefore, offence against the accused under Section 342 cannot be said to be established. 10. Then coming to the offence of rape under Section 376 I.P.C. The evidence of prosecutrix, as I pointed out earlier, is not very much helpful in this respect. She did not say that accused committed rape. The only evidence that is available is the evidence of P.W.2, Doctor, who examined the girl to establish the circumstances that P.W.4 might have been subjected to be raped by the accused. P.W.2 had examined her on 15-2-1990. On a perusal of the evidence of P.W.2 which was only suggestive to the effect that a hard blunt object, may be the erected penis, entered the vagina and the age of the injury was more than 1 day but less than 5 days. He also came to the conclusion, after physical, mental and radiological scrutinies, that her age was 12 years. In the cross P.W.2 has said that in the vagina walls nothing abnormal was detected. The accused also was subjected to medical examination. He also came to the conclusion, after physical, mental and radiological scrutinies, that her age was 12 years. In the cross P.W.2 has said that in the vagina walls nothing abnormal was detected. The accused also was subjected to medical examination. He was examined on 1-3-1990 by P. W. 3 who is a Professor in Goa Medical College. He was examined on the basis of a police report of a sexual offence occurred between 13-2-1990 and 15-2-1990. But his evidence goes to show that he could not say anything ill the absence of any physical evidence. He says “in the absence of physical evidence it is not possible to opine regarding old or recent sexual intercourse”. Going through the medical report and evidence of P.W.2 and P.W. 4, in the circumstances of this case, there is no sufficient evidence to establish the offence of rape against the accused. It is quite dangerous in a criminal case on a medical report alone, without any other corroborative material, having committed a rape by the accused against P.W.4. It is important to note that the medical examination conducted by P.W.2 on P.W.4 was a second one. Mrs. Linda Dias, P.W.1, had taken P.W.4 to another Doctor at Benaulim before the examination by P.W.2 and the prosecution could not produce any material with regard to that examination of P.W.4. P.W.4 admits she was examined first by a Doctor at Benaulim. 11. Therefore, on going through the evidence of P.W.4 one cannot come to a conclusion that the accused has committed rape against the prosecutrix. Then, we have the evidence of Dr. Audi, P.W.2. As I pointed out earlier, before he examined P. W.4, she had admitted in evidence that she had been taken by P. W.I to Dr. Angelo Gracias at Benaulim and a suggestion was put to P.W.4 in cross-examination as to whether Dr. Angelo Gracias is the person who accompanied P. W.1 to the Police Station to take the girl. Therefore, it is an admitted case that before P.W.2 examined P.W.4 she was examined or she was taken to another Doctor at Benaulim and the case of the accused therefore probabilities that before P.W.2 examined P.W.4 she has been examined by another Doctor which might have disturbed the lower part of P.W.4. A medical examination is to be tested in the circumstances in which the victim was examined. A medical examination is to be tested in the circumstances in which the victim was examined. If before that medical examination the victim was meddled by another Doctor and if such fact was suppressed from the Doctor who examined the victim and whose evidence was relied upon by the Court, such medical examination cannot be solely relied upon for establishing the guilt of the accused. Another circumstance is that P.W.4 was always being tutored by P.W.1. It is admitted by P.W.4 that even at Bal Niketan, P.W.1 used to come and instruct her how to depose before the Court. In fact the story of rape must have originated in the mind of P.W.1 first. She suspects that accused might have committed rape against P.W.4 even before P.W.1 took custody of P.W.4 from Police Station. It is admitted by P.W.1, she made the complaint even before she was given custody of P.W.4. In such circumstances, the lower Court is not justified in relying on P.W.4 for the conviction of the accused for rape. As I pointed out earlier, if we fully believe P.W.4, her own statement does not show that the accused has committed any offence for which he is charged. 12. Admittedly, P. W.4 is alleged to have been in custody of accused only on afternoon of 13th February, 1990 and till the morning of 15th February, 1990. But the prosecutrix says the accused called her to his house at 8.00 A.M. and then accused closed the door of the house, gave food and Rs. 5/- and removed her clothes and she says that at about 4.00 P.M. on the same day the police came. These contradictions in the evidence of P.W.4 would also go to show that the prosecution has not established the offence against the accused beyond all reasonable doubt. It cannot be ruled out as contended by the counsel for the appellant that the whole prosecution story developed due to estrangement between Mrs. Linda Dias, P.W.1, and the accused for having kept the girl in accused's house when P.W.4 was running away from the house of Mrs. Linda Dias because of ill-treatment. The only fact that has been proved in this case is that she was running away from the ill-treatment of Mrs. Linda Dias as admitted by P.W.4. Linda Dias, P.W.1, and the accused for having kept the girl in accused's house when P.W.4 was running away from the house of Mrs. Linda Dias because of ill-treatment. The only fact that has been proved in this case is that she was running away from the ill-treatment of Mrs. Linda Dias as admitted by P.W.4. The fact that the accused touched her stomach and lower part will not alone be sufficient to establish the offence of rape. 13. In view of the above discussion, it can be seen that the case of the accused is more probable than the case of the prosecution. The conclusion arrived at by the trial Judge is opposed to the materials proved in this case. 14. In the result, the Appeal is allowed. I set aside the judgment of the Court below and the accused/appellant stands acquitted. Appeal allowed.