MALAY SENGUPTA, J. ( 1 ) THIS is an appeal arising out of an order of conviction and sentence passed on 23-3-1996 by Shri A. P. Subba, Sessions Judge, East and North, Gangtok in Criminal Case No. 30 of 1994. ( 2 ) THE fact of he case in nutshell is that one Puja Rai a maiden of the age of around 10 years was brought from her uncles place by the accused-appellant before us. Though there was no observance of any legal or religious formalities for adoption she was accepted by the appellant as her adopted-daughter and was being reared up in his house at the Development Area, Gangtok. It has been alleged that since after bringing the girl to his house, the accused subjected herself to sexual assaults with the aid of his wife Sabitri Pradhan. The appellant indulged sexual acts with Puja almost regularly and Sabitri, during commission of such act by her husband, used to hold the girl tight and stop her to raise any cry to express her pain or to attract the attention of the neighbours. ( 3 ) THE victim girl was one day (26-3-1991) picked up by one Mrs. Hem Maya Gin to whom Puja narrated her miseries on a few earlier occasions as she was the next door neighbour of the accused and Puja. The girl was taken by Hem Maya, Mrs. B. M. Rai and Denka Bhutia on the very same day of 26-3-1991 to the house of Mrs. Durga Lama who happened to be a lady leader and Councilor of the Municipal Corporation and also the President of INTUC of the Sikkim State Unit. On hearing about the incidents and about the acts of the appellant and his wife, the girl was taken to the District Collector and then to the Sadar Police Station where a written report was filed by them. This report was treated as the FIR and investigation started there-from. All these were done on 26-3-1991. The 1. 0. submitted charge sheet against the appellant and his wife under Section 376/34 I. P. C. ( 4 ) THE learned Sessions Judge, in consideration with all the materials before him acquitted Mrs. Sabitri Pradhan of the charge under Section 376/107 I. P. C. and convicted the appellant for an offence under Section 376 I. P. C. after finding him guilty of the same. Sabitri Pradhan of the charge under Section 376/107 I. P. C. and convicted the appellant for an offence under Section 376 I. P. C. after finding him guilty of the same. In consideration of the facts that the convict was in custody for over five years and that he is of the age of 50 years the appellant was sentenced to R. I. for one year with a fine of Rs. 1000/- in default for simple imprisonment of further 5 months. ( 5 ) SHRI Padamlal Pradhan the convict, has preferred this appeal from the custody with the help of a Counsel provided to him by the Legal Aid Committee. ( 6 ) IN the instant appeal we are to see if the conviction and sentence of Shri Padamlal Pradhan was properly made or in other words whether case against Padamlal under Section 376 I. P. C. has been proved beyond all reasonable doubt. In the instant case besides Puja Rai (P. W. 3) three more persons (ladies) have been examined and cross-examined. They are Mrs. B. M. Rai (P. W. 1 ). Mrs. Hem Maya Gin (P. W. 2) and Mrs. Durga Lama (P. W. 4 ). Shri B. K. Sharma (P. W. 5) drew the formal FIR on the basis of the written complaint of P. W. 4. Mrs. Eden Subba (P. W. 6) was the 1. 0. who submitted charge-sheet against both the accused persons under Section 376/34 I. P. C. P. W. 7 (Dr. K. Gin) was the radiologist who held the ossification test and ascertained the age of the victim to be between 10 and 12 years. P. W. 8 (Dr. S. D. Shatma) held the medical examination of the girl while P. W. 9 (Dr. Uttam Pradhan) examined the accused. Besides the above prosecution witnesses the defence examined one Aitaraj Pradhan (DW) who happens to be the eldest son of the accused couple and was at the verge of attaining adulthood. Since after 26-3-1991 the victim is in the custody of P. W. 4 who is also the President of a social organisation which looks after the social activities in that area. Since after 26-3-1991 the victim is in the custody of P. W. 4 who is also the President of a social organisation which looks after the social activities in that area. ( 7 ) IN course of argument learned Advocate for the appellant took us through the evidence to indicate that there is no conclusive evidence of sexual intercourse by the appellant and therefore, argued that no charge under Section 376 I. P. C. could stand on such evidence. Learned Advocate for the appellant also took us through the numerous decisions of several High Courts and Supreme Court to establish that since there was no mark of violence on the genital organs of either the accused or the victim, no conclusive proof of rape can be said to have been established. All these points were raised before the Sessions Court and learned Sessions Judge very elaborately dealt with those points and repetition of the same would be meaningless. The decisions referred to on behalf of the appellant relates to situation where the act of rape was committed for the first time on the victim girl. Our case is altogether different. Here admittedly the accused was subjected to sexual intercourse for a continuously long period. Therefore, we do not want to place much weight to such an argument. But we should pay our attention to a number of other aspects relevant for the purpose of ascertaining the guilt or otherwise of the petitioner. ( 8 ) IT is not denied that the girl was staying with the appellant and his family for quite a few months. Since she was brought from her unclets house. It is the allegation that since her arrival to the house of the appellant and till her escape or recovery from that house she was subjected to sexual torture by the appellant and that it became almost a daily affair irrespective of day or night. She used to stay in the house of the appellant where one room and a small space outside the room was in occupation of appellants family. Total number of members of the family were six. The members were the appellant his first wife (who is the co-accused) his second wife his grown-up son through his first wife his another school going little son through his second wife and the victim. Total number of members of the family were six. The members were the appellant his first wife (who is the co-accused) his second wife his grown-up son through his first wife his another school going little son through his second wife and the victim. It is also available in the evidence that one Hem Maya Girl (P. W. 2) was a very close neighbour of the appellant. The two other rooms of the house of the appellant were in occupation of tenants with their family members. ( 9 ) THE victim girl was examined medically and her ossification was also made and it appeared that at the relevant time her age was between 10 years and 12 years. Thus we see that the girl in question was a prosecutrix and at the same time was a child. The question is how much reliance one can place on such a witness (P. W. 3 ). It is the settled principle that evidence of a child witness and that of prosecutrix need not always require corroboration on material particulars implicating the accused. Corroboration is not the requirement of law. It is the requirement of rule of prudence. The views of the Courts dating as far back as 1945 till recent days is the same in this regard. In Mohammad Sugal Eas v. The King in Madhoram v. State of Uttar Pradesh and in Gangaram v. The Crown identical view have been expressed. In the instant case since the victim girl is immature physically and mentally it would be prudent to search for some trustworthy corroborative evidence to come to a definite conclusion about the involvement of the appellant. We think it necessary more because since 26-3-1991, the date on which the victim escaped from the house of the appellant. She is under the care or influence of the P. Ws. We could have thought otherwise had the victim been in any Rescue Home or so. While searching out corroboration we should also keep in our mind the probability of the prosecution story. ( 10 ) WE must examine the corroborative evidence. It is needless to say that direct corroboration in such cases must be of the nature of circumstantial evidence or of evidence just not hearsay but of the nature as contemplated under Section 157 Evidence Act. ( 10 ) WE must examine the corroborative evidence. It is needless to say that direct corroboration in such cases must be of the nature of circumstantial evidence or of evidence just not hearsay but of the nature as contemplated under Section 157 Evidence Act. In our case three witnesses have been examined by the prosecution which can be said to be of the type covered under Section 157 Evidence Act. We have already mentioned that P. W. 2 is the neighbour of closest proximity. P. W. 1 is a rather old lady to whom the victim was first taken by P. W. 2 and one Denka Bhutia. P. W. 4 stays a little away. She is a public figure. Let us see how they corroborate the prosecution story. The victim girl (P. W. 3) stated that she narrated the entire incident to P. W. 2 only. There is no confusion in this respect as P. W. 3 stated in her examination-in-chief that she narrated all the incidents to one aunty who was wife of a police constable meaning thereby P. W. 2. In her cross-examination P. W. 3 stated only gave statement to the aunty. Therefore, disclosure of the incident was made by P. W. 3 only to P. W. 2. In her evidence P. W. 2 also stated P. W. 3 narrated the occurrence to herself and to two others. Denka and Mingma some days before 26-3-1991. Therefore, evidence of P. W. 2 regarding the occurrence is of corroborative nature so far as statement of P. W. 3 is concerned. P. W. 1 does not however, say that she heard anything direct from P. W. 3 nor P. W. 3 stated that she narrated the occurrence to P. W. 1. However. P. W. 1 says that she heard about sexual assault of the victim by the accused from P. W. 2 and Denka not on the relevant day but sometime before the girl was rescued on 26-3-1991. But P. W. 2 does not say that she told the incident to P. W. 1. P. W. 4 did not say that she heard anything from P. W. 3. It is also not the evidence of P. W. 3 that she told anything to P. W. 4. It is the evidence of P. W. 1 only that she narrated the incident to P. W. 4. Thus P. Ws. P. W. 4 did not say that she heard anything from P. W. 3. It is also not the evidence of P. W. 3 that she told anything to P. W. 4. It is the evidence of P. W. 1 only that she narrated the incident to P. W. 4. Thus P. Ws. 1 and 4 cannot be said to have corroborated the statement of P. W. 3 over the incident. The only evidence which remains is of P. W. 2 and his evidence technically speaking, comes under the purview of Section 157 Evidence Act. It would be pertinent to note that Denka and Mingma have not been produced as prosecution witnesses. Absence of these material witnesses, even without any explanation seriously affects the truth of the prosecution case. Juggas Case may be referred to. ( 11 ) WE are now to see how much reliance we can place on the evidence of corroborative nature coming from the lips of P. W. 2. It has been contended on behalf of the appellant that P. W. 2 was inimical towards the appellant. It has been suggested on behalf of the prosecution that there was a dispute over the boundaries of the houses of the appellant and of P. W. 2 and to be specific over the 5 feet strip of land in between the two houses. It has also been suggested that over the said dispute a salish was called for. A vague attempt was made from the side of the appellant to bring on evidence a sheet of paper signed by the husband of P. W. 2 and of the appellant stated to be a salishnama or a panchnama. But it remains unproved. However, there is no doubt that there was ill-feeling between the families of the appellant and of P. W. 2. P. W. 3 categorically stated that Hem Maya Gin (P. W. 2) alongwith her husband used to quarrel with the accused persons frequently during her (P. W. 3) stay there. Therefore, the evidence of P. W. 2 cannot be said to be sacrosanct. ( 12 ) THERE is another aspect which should be taken into consideration for proper evaluation of the evidence of P. W. 2. Therefore, the evidence of P. W. 2 cannot be said to be sacrosanct. ( 12 ) THERE is another aspect which should be taken into consideration for proper evaluation of the evidence of P. W. 2. It is the evidence of P. W. 2 herself that P. W. 3 told her that the accused Padamlal used to commit sexual intercourse on her forcibly as a result of which she used to suffer a lot. She further stated that P. W. 3 repeated the same story to her after some days and that all these narrations were made about one month prior to the arrest of the accused persons. It is the admitted position that P. W. 3 used to go to the neighbouring school at least twice daily to take to and to bring back the youngest son of accused Padamlal. Is it in conformity with normal conduct that P. W. 2 would remain mum for long one month after knowing the fact of sexual assault on a small girl by a grown up man? Under normal condition it must be expected that she would take the victim either to the police station or to the female social workers like P. Ws. 1 and 4, as she did on 26-3-1991. In this respect also one must accept the evidence of P. W. 2 with grains of salt. ( 13 ) ADMITTEDLY P. W. 1 is the Adviser and P. W. 4 is the President of a social organisation known as Mahila Sansthan, which was a wing of the then ruling party Sikkim Sangram Parishad. It is also in evidence that P. W. 2 was a like minded lady, extending all out help to P. Ws. 1 and 4. From the analysis of evidence as already made out, we find that P. Ws. 1 and 4 had no direct knowledge about the incident not even they heard anything directly from P. W. 3. The entire show was run by P. W. 2 veracity of whose evidence is highly stained. It is not unlikely that P. W. 2 could inspire the confidence of P. Ws. 1 and 4 in making out the present case. It is also not unlikely that these P. Ws. in the zeal of doing some social work blindly lend their ears to whatever P. W. 2 stated to them. It is not unlikely that P. W. 2 could inspire the confidence of P. Ws. 1 and 4 in making out the present case. It is also not unlikely that these P. Ws. in the zeal of doing some social work blindly lend their ears to whatever P. W. 2 stated to them. They were also not happy with the accused as he was rearing up the girl (P. W. 3) in an unhealthy manner without sending her to schools and engaging her in household works only. ( 14 ) REGARDING the question of probability it does not react favourably to our mind that the incident as narrated by the girl and as supported by the P. Ws. was at all possible. It is difficult to conceive that for days together someone would commit sexual assault by force on a little girl in a room occupied by five other members of different ages. Moreover, the girl was not in confinement to the house. She used to come out of the house at least twice a day to take the youngest son of the accused to school and to bring him back home. There were two other families in two contiguous rooms of that house. We have already indicated our doubt over the silence maintained by P. W. 2. Denka and Mingma for at least one month after hearing the complaint from P. W. 3. ( 15 ) THE girl was of little age and without any abnormal physical development of her body. Even pubic hairs were not grown. Hence, she was tender in all respect and it is risky to rely on the sole evidence of such a little girl specially when she was in the custody of other P. Ws. since the time of her release from the house of the appellant. Hence, free disclosure of the fact cannot be expected of her. From the evidence of P. W. 4 and others we find that there was a destitute home at the relevant time but the girl was not sent there and was handed over to P. Ws. 1 and 4 and was allowed to remain there till the date of her evidence in Court on 2-5-1995 and thereafter. Stay over four years in the custody of P. Ws. 1 and 4 and was allowed to remain there till the date of her evidence in Court on 2-5-1995 and thereafter. Stay over four years in the custody of P. Ws. 1 and 4 being frequently visited by P. W. 2 tells a volume about pollution of the mind of P. W. 3. ( 16 ) WE may now sum up the matter of evidence and the question of probability about the alleged incident. We are virtually left with the sole evidence of the prosecutrix. So far as the question of alleged rape on a kid by a full grown man we have before us the medical evidence that the hymen of the victim was found to be in ruptured state. The canal is also quite narrow. Only because a girlts hymen is in torn condition cannot lead one to the irresistible conclusion that it was because of penetration. So the testimony of P. W. 3 which suffers from other improbabilities does not find any corroboration from the medical side and also from oral testimony worthy of nature. ( 17 ) WE should note a few of the materials connected with the investigation of the case. The case admittedly started with a typewritten complaint of P. W. 4 of the O. C. Sadar Police Station. Gangtok. It was treated as FIR and the case was entrusted with P. W. 6 (Miss Eden Subba, S. I.) for investigation. The FIR shows the reporting date and time as 26-3-1991 at 18. 00 hours. Thus whatever steps was supposed to have been taken towards investigation, ought to have been after 6. 00 p. m. of 26-3-1991. But the medico legal report prepared by P. W. 8 shows that the girl was brought to the hospital at 13. 30 hours on 26-3-1991. How the victim was sent to the hospital before the complaint being lodged with the Police Station? It is not the case that she was taken to the hospital by her companions before moving out for the Police Station to lodge the complaint. Medico Legal Report shows that she was brought to the hospital by the 1. 0. herself. Again the report of the X-ray department to which the girl was referred to by P. W. 8 for ascertaining her age shows some interesting endorsements. Medico Legal Report shows that she was brought to the hospital by the 1. 0. herself. Again the report of the X-ray department to which the girl was referred to by P. W. 8 for ascertaining her age shows some interesting endorsements. The girl was sent to the X-ray department on 27-2-1991 and the report, after X-ray examination, was prepared by P. W. 7 on 28-3-1991. Nowhere in the ticket there is any mention about any police case. On the contrary we find P. W. 7 made a recommendation to the radiologist of the hospital to exempt payment of X-ray charges as the patient was poor. The Superintendent in her turn ordered to get the X-ray done free of charges as the patient was poor. It is very difficult to make out if she was sent in the X-ray department in course of investigation by the police or it was done in some manner unknown to the investigation procedure. All these cast great doubt over independent investigation into the case, and hit at the root of the prosecution. ( 18 ) THOUGH it might not have affected the prosecution case so badly, we may note a few points. The evidence of P. W. 1 indicates that the girl was first taken to the Chief Minister and under his advice to the District Collector. The complaint was reduced to typing and signed by P. Ws. 1 and 4 was presented before the District Collector who made certain endorsements on the complaint and same was produced before the Police Station. But the complaint which formed the nucleus for the case does not bear the signature of P. W. 1 nor it bears any endorsement of the District Collector. It is not known why the Chief Minister part had been omitted by the rest of the witnesses (P. Ws. 2, 3 and 4) in their evidence. ( 19 ) THEREFORE, we find that lots of doubts are cast on the genuineness of the prosecution story. At least the guilt of the accused-appellant cannot be held to have been proved beyond all reasonable doubt. Benefit of doubt must go in his favour. ( 20 ) THOUGH it has no bearing with the merit of the case we must comment on the dilatory method adopted in the Sessions Court in the trial of this case. Charge-sheet was very promptly submitted (on 1-8-1991) in this case. Benefit of doubt must go in his favour. ( 20 ) THOUGH it has no bearing with the merit of the case we must comment on the dilatory method adopted in the Sessions Court in the trial of this case. Charge-sheet was very promptly submitted (on 1-8-1991) in this case. But examination of the witness could commence only on 10-5-1993, after several liberal adjournments on various grounds. On 10-5-1993 two witnesses were examined and the third was examined on 26-5-1993. The fourth witness was examined on 3-5-1995. In between these dates parties went to High Court and Supreme Court and from everywhere the only message communicated to the Sessions Judge was to expedite the trial. On no occasion the Trial Court record was detained in or any stay over Ute proceeding was granted by the higher Courts. The record further indicates that after the accused was examined u/section 342 Cr. P. C. (old) and after the evidence of DW was taken, P. W. 6 was allowed to be re-examined by the prosecution. The reason for such re-examination is also not understood. Allowing the prosecution to re-examine any of the witnesses after the closure of the prosecution case and even after examination of D. Ws. is absolutely irregular and illegal. ( 21 ) TAKING all aspects into consideration, it is. ORDERED That the appeal be and the same is allowed on contest. The order of conviction and sentence passed on 23-3-1996 be set aside. The accused-convict-appellant be released from custody forthwith. Appeal allowed. --- *** ---