JUDGMENT 1. - This is a Jail Appeal under Section 374(2), Criminal Procedure Code by Gyarsi Lal accused from the judgment and order dated May 4, 1995 whereby the learned Sessions Judge, Bundi found the appellant guilty of the offence under Section 376 Indian Penal Code, convicted him as such and sentenced him to R.I. for five years and fine of Rs. 500/-. 2. The relevant facts are these : On July 29, 1994, PW 3 Gopal Meena, R/o Karwala Ki Jhonpari, Distt. Bundi appeared before PW 14 Sita Ram, S.H.O., Police Station Gainoli, Distt. Bundi, alongwith his minor daughter Kum. Santosh, aged about three years and presented a written report Ex. P.5 to the S.H.U. It had been alleged in the said report that on that day at about 9.00 a.m. the accused had beaten his daughter with a stick causing injuries at several places of her body including her private parts. It was further alleged in the report that his brother PW 6 Harbaksh had taken Kum. Santosh to the house and when the informant enquired of his daughter she told him that the accused had taken her to his field on the pretext of giving her green grams (Holey) to eat and there he had beaten her. It was also alleged that the appellant had attempted to commit rape on Kum. Santosh but since she was too young for the act, he could not rape her. Sita Ram, SHO, inspected the body of Kum. Santosh and observed several injuries on her person including swelling and blood clots on her private parts. He, therefore, registered Crime No. 104/94 u-/Secs. 323, 376/511, Indian Penal Code and commenced investigation of the case. 3. In the course of investigation of the case Sita Ram, SHO got Kum. Santosh examined by PW 1 Dr. Manoj Kumar Jain who, on the basis of his physical examination of the person of the girl including her private parts, opined that she had been raped. The crime was, therefore, altered to one under Section 376, LP.C. The bloodstained Chaddi of Kum. Santosh was also seized. 4. On recording the statements of certain persons under section 161, Criminal Procedure Code Sita Ram, SHO came to know that at about 12.15 p.m. on that day PW 5 Lokesh, a school boy about 10-11 years of age, had seen the appellant carrying Kum. Santosh was also seized. 4. On recording the statements of certain persons under section 161, Criminal Procedure Code Sita Ram, SHO came to know that at about 12.15 p.m. on that day PW 5 Lokesh, a school boy about 10-11 years of age, had seen the appellant carrying Kum. Santosh in his laps towards his field, that PW 4 Dhan Raj, aged 12 years, brother of Santosh, had then seen the appellant beating her with a stick and then leaving her near the Bara of Anandi Lal, that Dhan Raj had then informed his uncle PW 6 Harbaksh of the act of the appellant, that Harbaksh took the child to the house and sent Dhan Raj to call his father, PW 3 Gopal Lal and then Gopal Lal reached the house and took Santosh to the Police Station and lodged the FIR. Sita Ram, SHO, therefore, arrested the appellant on 2.8.94 at 11.30 p.m., noticed injuries on his person, seized his bloodstained under-wear and obtained an information under Section 27 of the Evidence Act in consequence of which a stick was recovered and seized by Bhanwar Singh, Head Constable. After completing the investigation Dalpat Singh, A.S.I. submitted the charge-sheet against the appellant before the Magistrate. The learned Magistrate committed the case to the Court of Sessions Judge who tried the appellant on charge under Section 376 Indian Penal Code and convicted and sentenced him in the manner stated above. 5. Mr. Jinesh Jain, the learned amicus curiae, appointed by the Court to plead and argue the appeal on behalf of the appellant, urged that the learned Sessions Judge had not appreciated the facts of the prosecution case and the evidence on record in right perspective. He submitted that the learned Sessions Judge erred in law in finding support for the prosecution theory from so called infirmities or contradictions in defence plea and the evidence led by the appellant, to establish the charge under section 376, Indian Penal Code against him. The learned Counsel further submitted that there was absolutely no case under Section 376 Indian Penal Code and such a case was not at all proved against the appellant either by the evidence brought on the record or the natural facts existing at the village and attending upon the incident having taken place in this case. 6. The learned Counsel further submitted that there was absolutely no case under Section 376 Indian Penal Code and such a case was not at all proved against the appellant either by the evidence brought on the record or the natural facts existing at the village and attending upon the incident having taken place in this case. 6. The learned Public Prosecutor, on the other hand, submitted that the present case is an instance of a most heinous and condemnable sexual assault on an innocent female child of very tender age and was required to be approached with all sensitivity. It was urged by the learned Public Prosecutor that the injuries found on and around the private parts of Kum. Santosh soon after the incident could not be overlooked or unmindfully dismissed as such injuries conclusively proved that the appellant had committed rape on the innocent child. 7. After having heard the learned Counsel for the parties at sufficient length and on going through the evidence on record very carefully I am clearly of the opinion that no offence of rape was proved to have been committed against Kum. Santosh in this case. 8. It is by now well settled that since the crime of rape is not merely a physical assault on the privacy, dignity and personal integrity of a member of fair sex but also causes serious psychological harm to the victim of the grave offence, the Courts should deal with such cases with utmost sensitivity and responsibility. Minor contradictions and insignificant discrepancies should not sway the Courts to reject the prosecution case and the case should be examined in broader probabilities keeping in mind that ordinarily no self-respecting woman and/or her relatives would come forward in Court just to make a disgraceful and humiliating statement against her honour and dignity which may have a very far-reaching effect on her future social life and the life of her kith and kins in the socio-religious set-up of our society. It is, therefore, necessary that the facts of such a case in general and the statement of the victim of such offence in particular should not be approached with a suspicious mind. The evidence of the victim of sexual assault should, therefore, be regarded almost on the same footing as that of an injured person. It is, therefore, necessary that the facts of such a case in general and the statement of the victim of such offence in particular should not be approached with a suspicious mind. The evidence of the victim of sexual assault should, therefore, be regarded almost on the same footing as that of an injured person. Each case is, therefore, required to be critically examined in the set of the facts and circumstances in which the crime of rape on a woman or girl is stated to have been committed. 8. In the instant case the offence of rape is alleged to have been committed by the appellant, aged about twenty years or so, on a female child aged about three or three and a half years. The place of occurrence is stated to be the field across a canal which flows just close to the inhabitated Jhonparies of the witnesses and the victim. The time of the alleged occurrence is about 9.00 a.m. according to the version given in the FIR, and 12.15 p.m. according to the evidence brought on the record of the case. The appellant though aged about 20 years and found capable of doing sex act, is a polio-affected lame lad. It is in this factual matrix that the prosecution case and the evidence in support of such case is required to be appreciated. 9. At the trial of the appellant the prosecution had examined as many as 14 witnesses. Of these 14 witnesses PW 7 Chanshyam and PW 8 Heera Lal were the witnesses to seizure of Chaddi and under-wear of Kum. Santosh and the appellant respectively. PW 2 Dharam Raj, Constable is the person who had taken the sealed packets to the State Forensic Science Laboratory, Rajasthan, at Jaipur. No report of the Director of the said laboratory was ever produced by the prosecution either during the trial of the appellant or even before this Court. The evidence of these witnesses is thus not at all helpful to connect the appellant with the commission of any sexual crime against Kum. Santosh. 10. PW 10 Sohan Lal is a witness to the recovery of a stick with which Santosh was beaten by the appellant. The evidence of these witnesses is thus not at all helpful to connect the appellant with the commission of any sexual crime against Kum. Santosh. 10. PW 10 Sohan Lal is a witness to the recovery of a stick with which Santosh was beaten by the appellant. PW 11 Brij Mohan and PW 12 Sobhagmal are the witnesses to the site map of the place wherefrom the alleged stick was stated to have been recovered as per information of the appellant. PW 13 Prithvi Raj is again another witness to the seizure of the stick. The prosecution case was that after his arrest on 2.8.94 at 11.40 a.m. the appellant had given an information on 5.8.94 to the effect that the stick had been hidden by him under a Babool tree in the field of one Anandi Lal and in consequence of such information Bhanwar Singh, Head Constable had recovered that stick from that place. Not only that the above named witnesses had not supported such a case of the prosecution at the trial of the appellant and that the stick recovered and seized by the police did not connect the appellant with the crime either by any evidence of identification or by presence of any marks of blood on it but also that such an evidence was totally unnecessary and irrelevant in the present case. It needs no stress that collection of such evidence by the Investigating Officer with collection of no further evidence either of identification of the article alleged to have been recovered at the information of the accused or of presence of any mark upon the article recovered, simply shows un-imaginative investigation and, in majority of the cases, false and even damaging evidence for the prosecution case. Such collection of evidence may satisfy the superior officers of the Investigating Officer of his vague and untrue efforts in making recoveries of articles which are not proved to be connecting the accused with the crime committed in the case and maybe used for statistical purposes only to claim benefit for undone performances but such evidence is not at all acceptable in a Court of Law. Besides wasting precious public money from the State exchequer on collection of such evidence and then on examining the witnesses in support of such evidence at the trial of the accused the time of the Court is also unnecessarily wasted by calling and examining the witnesses to the recoveries of such unconnected articles. It is therefore desirable that the superior officers or the Investigating Officers collecting such sort of evidence with no connecting evidence in their support, should discourage such sort of aimless investigations and save wastage of public money but also the Trial Courts should see that neither such unconnected articles are deposited in Court Malkhanas nor the witnesses sought to be examined in support of recoveries of the unconnected articles are summoned for recording their statements. More often than not such unconnected and irrelevant recoveries cast serious aspersion on the bona fides of the Investigating Officers making such sort of recoveries particularly in hurt cases and tell upon the very truthful character of the investigation conducted in the case. Many a true cases a re spoiled and end in dismissals due to recoveries made of unconnected articles, which are neither sealed on their seizure nor got identified by witnesses during investigation. Hardly effort is made to present the facts as they existed or were observed by the prosecution witness in general and the Investigating Officer in particular. 11. Of the rest of the witnesses PW i Dr. Manoj Kumar Jain is the witness who, as a Medical Officer, Primary Health Centre at Khatkad, had examined the person of Kum. Santosh on 30.7.94 at 8.00 a.m. for proof of rape on her. He has stated to have found the following injuries on her person : "1. Multiple abrasions of 1" x'/" and 1"x t " chest at sternal region, redish colour slab present. 2. Multiple bruises of 3" x 3/4" and 2.5" x 3/4" at hack chest upper and lower region, redish colour. 3. Multiple bruises of 2" x 3/4" and 1.5" x 3/4" left foseasm and hand, selling present at hand and foseasm oblique, redish colour. 4. Multiple bruises of 3" x 3/4" and 2" x 3/4" at abdomen mid line, Rt. and left lateral side redish colour. 5. Multiple bruises of 2.5" x 3/4" and 2' x 3/4" both buttocks, oblique, redish colour. 6. Bruises of 2" x 1.5" and 1.5" x 1.5-left cheek redish. 7. 4. Multiple bruises of 3" x 3/4" and 2" x 3/4" at abdomen mid line, Rt. and left lateral side redish colour. 5. Multiple bruises of 2.5" x 3/4" and 2' x 3/4" both buttocks, oblique, redish colour. 6. Bruises of 2" x 1.5" and 1.5" x 1.5-left cheek redish. 7. Examination of private parts-Bleeding present on touch the vaginal parts. - Swelling of both labia majora and labia minors laceration of size 3/4" x 1/4" on mucus membrane at left side labia minora and laceration of posterior commissure. - Laceration of 112' x'/" membrane deep of four with swelling, redish colour, bloodstained. Swelling of use thra with inflammation, redish colour. - Hymen-congested, redish, intact." 12. On the basis of the injuries noticed on the person of Kum. Santosh, particularly caused to heron and around her genitals Dr. lain opined that the female child was raped, though her hymen was found intact. I find that the learned Sessions Judge was hesitant in accepting such opinion of Dr. Jain and that was why the learned Sessions Judge tried to find support from the so called inconsistencies in defence plea as taken in the cross-examination of prosecution witnesses and that taken in his examination recorded under section 313, Criminal Procedure Code. The defence plea as put to the prosecution witnesses in cross-examination was that since the female child and her minor brother had teased him by calling him 'Langra' (lame), the appellant lost control of himself and since the brother of San tosh ran away the appellant caught hold of Santosh and gave her a severe beating with a 'Lisora' stick and in the process of causing her injuries in that manner under those angry and excited moments happened to cause injuries to her on or around her genitals also. However, on being examined under section 313, Criminal Procedure Code the appellant totally denied to have caused any injuries to the female child. The defence had examined DW I Dr. Kamlesh who had inter-alia stated that the injuries caused to Santosh could be caused with some blunt weapon like a stick of "Lisora". In cross-examination the witness had approved of the suggestion that injuries on the private parts of Kum. Santosh could also be caused by an erect penis. In accepting the opinion of Dr. Kamlesh who had inter-alia stated that the injuries caused to Santosh could be caused with some blunt weapon like a stick of "Lisora". In cross-examination the witness had approved of the suggestion that injuries on the private parts of Kum. Santosh could also be caused by an erect penis. In accepting the opinion of Dr. Jain on the point of commission of rape on Santosh the learned Sessions Judge heavily relied upon the confirmatory opinion of DW I Dr. Kamlesh who had opined that an erect penis of male may also cause those injuries. In my opinion the learned Sessions Judge was not right in appreciating the prosecution as well as defence evidence in that manner. 13. It needs no emphasis that in appreciation of the evidence in criminal cases the prosecution, unless provided otherwise by a statute, has to prove the charge of an offence against the accused. The prosecution has to stand upon its own legs to prove the guilt of the accused. The burden to prove the charge against the accused lies upon the prosecution and such burden never shifts. Admission of certain facts by the accused may exonerate the prosecution of its duty of proving those facts, as facts admitted need not be proved as per Section 58 of the Evidence Act. But even in those cases the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions (see Proviso to Section 58, Evidence Act). Confession is a specie of admissions. A plea of guilty and not a confession of guilty may be made as the basis of conviction of an accused. Section 229 (Sessions cases), 241 (Warrant cases), 252 (Summons cases) and 262 (Summary cases) talk of conviction of the accused on the basis of his plea of guilty and not on his confession of guilt. A confession of guilt does not become a plea of guilty unless and until it is accepted by the Court. The above mentioned provisions do not make it obligatory for the Court to record conviction of the accused on the basis of plea of guilty. It lies in the discretion of the Court whether to accept or not to accept a plea of guilty made by an accused, though such discretion is always required to be exercised judicially and not arbitrarily. It lies in the discretion of the Court whether to accept or not to accept a plea of guilty made by an accused, though such discretion is always required to be exercised judicially and not arbitrarily. As of practice the plea of guilty made by an accused is generally accepted particularly in petty and/or not too serious cases. In view of the nature of the burden of the prosecution to prove the guilt of the accused beyond doubt the infirmities in prosecution case and lacunae in evidence led by it cannot be made good by noting the infirmities and/or inconsistencies, if any, in the plea of the accused raised or made by him in his defence. His plea, when it does not amount to a plea of guilty, and the evidence produced by an accused in support of or even in derogation of such plea, cannot be read against him for the purposes of basing a conviction. His plea and the evidence produced by him in support of such plea is relevant to the extent of giving him benefit in the charge levelled against him. It should always be remembered that whereas the prosecution carries the burden of proving the guilt of the accused, the accused carries no such burden to prove his innocence. Therefore, the approach adopted by the learned Sessions Judge in the appreciation of the prosecution evidence incriminating the appellant is not warranted by law. 14. The significance of the examination of an accused u /Sec. 313, Criminal Procedure Code lies in the fact that this provision is intended to secure to the accused an opportunity to explain any circumstance appearing in evidence against him. It is to the benefit of the accused and is not intended to harm him or to operate to his detriment. This provision runs in consonance with the principle enshrined in Article 20(3) of the Constitution which provides that "No one, accused of an offence, shall be compelled to be a witness against himself". On being examined the accused is not bound to answer or to say anything. If he says anything he does it voluntarily knowing that under law he is not bound to say it. He may refuse to answer and his refusal to answer or his silence cannot establish his guilt. He cannot be punished for refusing to answer any question or for giving false answer. If he says anything he does it voluntarily knowing that under law he is not bound to say it. He may refuse to answer and his refusal to answer or his silence cannot establish his guilt. He cannot be punished for refusing to answer any question or for giving false answer. Therefore, his examination under Section 313, Criminal Procedure Code cannot be used to fill up gaps in the prosecution case. As stated earlier, it is the burden of prosecution to establish its case and no adverse inference can be raised against the accused for his failure to explain or not supporting a plea which he had taken at the time of cross-examining the prosecution witnesses. The answers given by him may be taken into consideration in their entirety for judging his innocence or guilt when such answers go to make his explanation on certain incriminating circumstance appearing in evidence against him. The plea in defence put to the prosecution witnesses in the course of their cross-examination was not an incriminating circumstance against the appellant and he was also not examined under section 313, Criminal Procedure Code regarding such plea. Under such circumstances if the appellant did not put that plea when he was examined under Section 313, Criminal Procedure Code or even stated a fact contrary to the plea taken by him in the cross-examination of the witnesses, no adverse inference can be, in my opinion, made against him so as to fill up the gap in the prosecution evidence and thus to hold him guilty. The learned Sessions Judge erred in law in drawing adverse inferences from the so-called conflict in defence theory as advanced through the cross-examination of the prosecution witnesses and as taken in his examination under Section 313, Criminal Procedure Code. 15. Now reverting to the medico-legal evidence tendered by Dr. Manoj Kumar Jain in this case it may be observed that ordinarily the value of medical evidence is only of corroborative character. It is true that such evidence is only opinion evidence and is generally used as corroborative evidence to the evidence led by the eve-witnesses in hurt cases. But at the same time such evidence assumes the character of direct evidence also of the facts found upon the body of the person who is the victim of an assault. It is true that such evidence is only opinion evidence and is generally used as corroborative evidence to the evidence led by the eve-witnesses in hurt cases. But at the same time such evidence assumes the character of direct evidence also of the facts found upon the body of the person who is the victim of an assault. Being of the character of direct evidence of the facts found on victim's person, it is opinion evidence in the sense that it proves that the injuries to the victim could have been caused in the manner alleged and nothing more. The defence may, however, make use of such evidence to prove that the injuries to the victim may not have possibly been caused in the manner alleged to have been caused. Therefore, unless the medical evidence completely rules out all possibilities whatsoever of the injuries having been caused in any other manner the defence version, or for that matter, the testimony of the eye-witnesses even, cannot be dismissed or thrown out on the ground of inconsistency with the medical evidence. 16. In the instance case Dr. Jain had noticed multiple abrasions and bruises on the person of Kum. Santosh at six different places. On examination of her private parts Dr. Jain had noted complaints of difficult muctrition with burning, dried blood on the skin fold of vagina, swelling of both labia majora and labia minora as also of urethra. Laceration on mucus membrane at left side of labia minora, posterior commissure and membrane deep for chetta with swelling were also noticed.A touch of vaginal parts produced bleeding also. The vagina of the child permitted painful entry of the tip of little finer only. Her hymen was intact, though congested and redish. Dr. Jain, however, did not notice any semen or whitish substance inside the vagina-or around the orifice. No vaginal swab was also taken by him. 17. Dr. Jain had examined the appellant also on 3.8.94 and found more than five bruises on his person. On examination of the genitals of the appellant the witness had opined that he was grown up man with fully developed sexual organs and capable of doing sexual act, though he did not try to have the appellant the erection of his penis. 18. On examination of the genitals of the appellant the witness had opined that he was grown up man with fully developed sexual organs and capable of doing sexual act, though he did not try to have the appellant the erection of his penis. 18. With the above direct evidence of the relevant facts for making an opinion regarding the commission of rape on Santosh the question which arises for consideration is whether the opinion of Dr. Jain to the effect that rape was committed upon the child may or may not be accepted. In this behalf we may proceed on the established position that the appellant had given severe beating to the child with a Lisora stick. When such a case of the prosecution, which was stated in the FI R and deposed by die witnesses in the Court, is kept in mind while appreciating the soundness of the opinion evidence of Dr. Jain one may reasonably conclude that the possibility of the child having received injuries on her genital in the course of her beating by the appellant, on the lower parts of her abdomen cannot be ruled out. A look at the details of injuries sustained by the witness goes to show that injuries were caused to her on her chest, both sides, fore-arm and hand, abdomen midline and on both sides, both the buttocks and on left cheek. She was a child of three or three and a half years only and the location of the injuries on her person suggests that most probably she had been caused injuries while she had fallen on the ground. Injury No. 4 which consisted of multiple bruises 3" x3 /4"and 2" x 3/4" was caused to her at abdomen, midline, right and left lateral sides. The place of infliction of this injury was so near to her private parts that the end of the stick could have striken against her for chetta and labia minora particularly when the child is stated to be wearing a small Chaddi only though PW 4 Dhan Raj denied the presence of Chaddi. The place of infliction of this injury was so near to her private parts that the end of the stick could have striken against her for chetta and labia minora particularly when the child is stated to be wearing a small Chaddi only though PW 4 Dhan Raj denied the presence of Chaddi. The possibility of those parts of her body receiving the blow from a Lisora stick in that manner cannot, in my opinion, be ruled out, particularly when the conduct of the accused and the prosecution witnesses and the oral evidence brought on the record of the case is kept in mind in the light of the attending facts and circumstances of the case. 19. Of the oral evidence on the point PW 3 Gopal is the father of Santosh. He has stated that at about 1.00 p.m. his son PW 4 Dhan Raj had reached the field where he was working and informed him that the appellant had given a beating to his daughter, Santosh and had left her at the Khamba near the field of Anandi Lal. He further stated that on such information he went to his house where he saw Santosh in injured condition. In cross-examination he admitted that the did not complain of the conduct of the appellant to Heera Lai or Badri Lai, the uncle and father of the appellant respectively. He further stated that he did not enquire about the incident from any of the persons having their field around the place of alleged occurrence. Though Brij Mohan and Dhana were there at his house when he had reached there but he did not ask anything from them. No complaint was made even to either Harbaksh Surpanch or Modu Meen who was the Punch from witnesses' own village. He did not even call his wife who had gone to the Jungle. His behaviour was not, it may safely be inferred from the facts stated by him, that of the father whose innocent child of three years of age had been raped in day time in the village itself. That was why he did not allege in the report lodged by him that Santosh had been raped. 20. PW 4 Dhan Raj is the brother (if San tosh, he is aged about 12/13 years. That was why he did not allege in the report lodged by him that Santosh had been raped. 20. PW 4 Dhan Raj is the brother (if San tosh, he is aged about 12/13 years. He has stated that on return from his school at about 12.00 O'clock in the noon when he reached his house he did not find his sister Santosh there whereupon he enquired of his younger brother Janina Shankar about the whereabout of Santosh but Jamna Shankar pleaded ignorance. The witness thereupon went out to search Santosh. He stated that when he reached the Bara of his uncle Heeraji Meena he noticed that the appellant was bringing his sister from inside the Bara, beating her with a Lisora stick. He further stated that the appellant had not seen him and took Santosh upto the Bara of Anandi Lal whereat the appellant saw the witness and then left towards 'Kali Talai' after throwing Santosh. The statement of this child witness in fact makes the very backbone of the prosecution case. From the statement of this witness the commission of any rape on Santnsh by the appellant is completely ruled out. In fact, had the appellant taken Santosh to a field across the canal and there he had attempted to commit rape on her then there was no sense in his giving her beating with a Lisora stick and bringing her to the Bara of Heeraji Meena and then took her to the Bara of Anadi Lal, giving beating to her on the way. That would not have been the normal conduct of a person who had committed a heinous crime of rape against an innocent child of tender age. The witness further stated that after the appellant had gone towards Kali Talai after leaving the beaten Santosh, he (the witness) had approached his uncle, Harbaksh who was grazing his bullocks in his field which was simply a field away from the Bara of Anandi Lal. The witness stated in the cross-examination that Santosh was not wearing any Chaddi at that time. He has further told in the cross-examination that there was a Lisora tree in the field of Heeraji Meena. The only fact established by him is that he had seen the appellant giving beating to Santosh with a Lisora stick and bringing her from inside the Bara of Heeraji Meena. He has further told in the cross-examination that there was a Lisora tree in the field of Heeraji Meena. The only fact established by him is that he had seen the appellant giving beating to Santosh with a Lisora stick and bringing her from inside the Bara of Heeraji Meena. His statement gives no indication that Santosh was raped. The possibility of the appellant having picked up a stick from the Bara of Heeraji Meena cannot be ruled out. To sum up, the evidence of this witness too gives no indication that the appellant had ever raped Santosh. In fact the statement of this witness clearly demolishes the case of prosecution regarding the appellant having committed rape on the child in a field across the canal. 21. PW 5 Lokesh is another child witness aged about 10 or 11 years. The learned Sessions Judge seems to have been much influenced with the evidence of this witness. The witness has stated that after coming from his school at about 12 O'clock when he had gone to the Bara to give fodder to the cattle he had seen the appellant carrying Santosh. He further stated that he did not enquire of the appellant as to where he was taking Santosh. However, he stated that he immediately reached Dhan Raj's house and there told his father, Gopal about appellant's taking Santosh towards the canal. 22. Not only that Lokesh is a child witness and, therefore, his testimony should be appreciated with great care and caution as children are liable to be easily tutored, but also that the testimony of this child witness is totally afterthought and a concocted one. This witness is not named in the FIR. Gopal does not say that this witness had ever stated any facts with regard to the appellant and Santosh to him. Had the witness really seen the appellant taking Santosh towards the canal side and had immediately reported that fact to Gopal, the father of Santosh, then there were no good reasons for Gopal for his not rushing towards the canal to protect Santosh from any harm likely to be caused to her by the appellant. But Gopal is not found to have exhibited any such conduct and behaviour. There were also no good reasons for him for not mentioning such facts in the FIR. But Gopal is not found to have exhibited any such conduct and behaviour. There were also no good reasons for him for not mentioning such facts in the FIR. It seems to me that the child witness has been introduced in the case to give a colour of probability to the prosecution theory about the commission of rape upon Santosh. The testimony of this child witness inspires no confidence in me and is accordingly rejected. 23. PW 6 Harbaksh is the younger brother of PW 3 Gopal. He has stated that at about 12 or 1.00 p.m. Dhan Raj had come to him on his field and told him that the appellant had beaten Santosh who was found lying near the 'tail of Khal' (end-point of the water channel). The witness further stated that he picked up the child and took her to the house. He further stated that he followed the appellant in the Kali Ki Talai and asked him as to what he had done to Santosh. The appellant told him that he had committed rape on her and that he (the witness) was at liberty to do what he may. Though the witness had accompanied Gopal to the Police Station and there assisted him to draft the FIR yet no version like that of the alleged extra-judicial confession of the appellant was given in the FIR. In cross-examination he stated that he did not tell the incident to Santosh's mother, Smt. Dhapo Bai and also did not complain to Badri, father of the appellant, whose house was close-by. On the face of it, the statement of this witness regarding the extrajudicial confession of the appellant is false and after-thought and inspires no confidence. His conduct of not narrating the incident even to the mother of the child and not complaining to anybody about the alleged conduct of the appellant does not conform to the normal conduct and behaviour of the person whose brother's innocent daughter of tender age had been raped by a person and he had come in contact with the offender. His testimony too on the point is not reliable and is accordingly rejected. 24. PW 9 Kum. Santosh is the very female child who was alleged to have been raped by the appellant. His testimony too on the point is not reliable and is accordingly rejected. 24. PW 9 Kum. Santosh is the very female child who was alleged to have been raped by the appellant. The witness was produced before the learned Judge in the laps of her father but despite all efforts made by the learned Judge to record her statement she could not be examined. She could not speak even a word. The observation of the learned Judge that in view of her condition, the witness was not capable of stating any facts and, therefore, her statement as shown to have been recorded by the. Investigating Officer in the course of investigation was not in fact given by her, is correct. The investigation of the case is so had and poor that it inspires no confidence. Not only that the investigating Officer had tried to convince the Court that he had recorded the statement of a three years old child when she was unable to depose those facts which were mentioned in her statement under section 161, 161,Cr.P.C.(Ex. D 4) but also that he exposed his astonishing ignorance, over-zealousness and interest in the case by stating that a mere touch of male organ to the private parts of a female amounts to penetration. No reliance can be placed in a case of sexual assault on the investigation conducted by such an ignorant and over-enthusiastic Investigating Officer. 25. Be that as its may, the oral evidence in the case, as has been discussed above, makes it abundantly clear that in the facts and circumstances of this case the appellant did neither commit nor even try to commit any rape on Kum. Santosh. Nor was the child ever raped. The injuries on or around her genitals were caused to her in the course of the beating given by the appellant to her with a Lisoda stick. The facts and circumstances of the case and the oral evidence on record do not support, instead they contradict, the opinion evidence of Dr. jain on the point of commission of rape upon Kum. Santosh. Therefore, the opinion evidence of Dr. Jain, which opinion itself did not rule out the possibility of Santosh sustaining the injuries on her genitals with a stick, was not acceptable and must have been rejected by the learned Sessions Judge. 26. jain on the point of commission of rape upon Kum. Santosh. Therefore, the opinion evidence of Dr. Jain, which opinion itself did not rule out the possibility of Santosh sustaining the injuries on her genitals with a stick, was not acceptable and must have been rejected by the learned Sessions Judge. 26. To sum up, I hold that no offence of rape punishable under Section 376 Indian Penal Code was committed by the appellant against Kum. Santosh. He is, therefore, entitled to an acquittal. 27. Being of the opinion, as expressed above, I fail to ignore that the appellant had mercilessly beaten an innocent child of very tender age. The defence version as is disclosed by suggestion put by the defence in the cross-examination of the witnesses was that Kum. Santosh and his brother Dhan Raj had teased the appellant by calling hi m 'Langra' and enraged with such remarks the appellant ran behind the children and while Dhan Raj was successful in running away San tosh was unable to do so. The appellant caught hold of her and gave her a severe beating with the Lisora stick in the Bara of Heeraji Meena and left the beaten child near the Bara of Anandi Lal. The theory put forth by the defence was quite probable and fitted in the facts and circumstances of this case. It is not uncommon for village children living in rustic, rural and semi cultured atmosphere to tease a person by calling such names when such person suffers from such a deformity in his physique and body. On such remarks it was not abnormal for the appellant to have lost his control and while he could not be successful in catching hold of Dhan Raj he poured out all the wrath of his hurt feelings on the innocent child, Santosh. The prosecution evidence, as discussed above, clearly proves that the appellant had voluntarily caused simple injuries with a blunt weapon i.e. a stick to Santosh. The offence under section 323, Indian Penal Code stands clearly proved against the appellant beyond any doubt. The appellant, therefore, deserves to be punished accordingly. 28. The learned amicus curiae, however, submitted that since no charge for the offence under section 323, LP.C. was ever framed against the appellant and he was not tried therefor, he cannot now be convicted of the same. The appellant, therefore, deserves to be punished accordingly. 28. The learned amicus curiae, however, submitted that since no charge for the offence under section 323, LP.C. was ever framed against the appellant and he was not tried therefor, he cannot now be convicted of the same. I am not impressed with such an argument in this case. 29. Section 221(1) provides that if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts, which can be proved, will constitute, the accused may be charged with having committed all or any such offences, and any number of such charges may be tried at once, or he may be charged in the alternative with having committed someone of the said offences. Sub-section (2) of Section 221 says that if in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of Sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it. It is thus clear that the provisions contained in Sub-section (2) of Section 221 permit conviction of a person for the offence which is shown to have been committed by him, although he might not have been charged with the same. 30. Section 222 further clarifies the legal position by providing in Sub-section (1) thereof that when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. 31. A combined reading of Sections 221 and 222, Criminal Procedure Code makes it clear that the provisions contained in those two sections are exceptions to the fundamental principle that a person can be convicted of a particular offence only if he was charged with the same. The object of these provisions is to prevent failure of justice in cases where the commission of an offence is proved but there is no specific charge for it. The object of these provisions is to prevent failure of justice in cases where the commission of an offence is proved but there is no specific charge for it. The only requirement for the applicability of these provisions, besides those mentioned in the relevant sections, is that due notice of the offence which is found to have been committed by him and for which he is going to be convicted, though not charged with, is given to him. In other words, before acting u/Sees. 221 and/or 222 the Court must satisfy itself that the accused was not misled in his defence and no prejudice has been caused to him. Once the Court, including the Appellate Court (which this Court presently is in this case), is satisfied on those aspects of natural justice, the accused, who is proved to have committed in the same series of acts constituting several offences, an offence different from that or those he has been charged with, may be convicted of such offence if due notice of such an offence, which is proved to have been committed by him, has been given to him. 32. In the instant case, the case was initially registered against the appellant for offences under sections 323 and 376/511, Indian Penal Code. Though at the trial he was charged with the offence under Section 376 Indian Penal Code only yet the clear case put forth by the prosecution against him was that he had beaten Kum. Santosh with a Lisora stick and had thus voluntarily caused simple hurt with blunt weapon to her. I am therefore, satisfied that the appellant had due notice of the commission of offence under section 323, Indian Penal Code by him against Santosh, which is proved against him, and that he has not been prejudiced in his defence due to the absence of a charge for that offence against him. 33. In the result, the appeal of the appellant for his conviction and sentence for the offence under section 376, Indian Penal Code succeeds and, therefore, his conviction and sentence for that offence are set aside and the appeal allowed. 34. However, from the evidence on record the appellant is found to have committed the offence punishable under section 323, Indian Penal Code against Kum. Santosh, for which he had not been charged. 34. However, from the evidence on record the appellant is found to have committed the offence punishable under section 323, Indian Penal Code against Kum. Santosh, for which he had not been charged. For reasons recorded above, the appellant is held guilty of the offence under Section 323 Indian Penal Code is convicted therefor, and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/- only or in case of non-payment of fine to undergo further simple imprisonment for one month. The amount of fine, if realised, shall be paid to PW 3 Gopal, the father/guardian of Kum. Santosh by way of compensation. 35. Incidentally, it is gathered from the record that the appellant has already suffered imprisonment for a period more than that he has been sentenced to. The period of his sentence covers the period of sentence which he was required to undergo in case of not making payment of fine imposed on him. Under such circumstances and on such facts it is directed that the appellant shall be released forthwith, without any further delay, in this case unless he is required to be detained in som other case. The Deputy Registrar (Judicial) shall see that the order of the Court is communicated to the lower Court as early as possible and that the appellant stands released in this case in compliance of the orders of this Court without any further loss of time.Appeal allowed. *******