K. S. Gupta,j. ( 1 ) THE appellant-accused has filed this appeal against the judgment dated 12th May, 1997 convicting him under Section 376, Indian Penal Code and the order dated 14th May, 1997 sentencing him to undergo Rl for 10 years and pay fine of Rs. l,000. 00 passed by an Additional Sessions Judge. In default of payment of fine he was to further undergo Rl for 6 months. ( 2 ) CASE of the prosecution as borne out from the chargesheet filed under Section 173, Cr. P. C. is that on 30th December, 1995 Smt. Bala, Public Witness 5 alongwith her daughter Puja came to PS Nand Nagri and she made statement to ASI Gopal Singh, Public Witness 8 to the effect that she resides alongwith her children in House No. B-5/350 and at about 2 p. m. while she was washing clothes her children-Rahul and Puja were playing inside the house. Accused who resides in the neighbourhood, came ,to the house and after taking Puja, aged about 3 years in his lap he went to first floor accommodation of the said house. After about 15-20 minutes he came down together with Puja. He while handing over Puja told her that she had suffered injury because of fall from the staircase and she be taken to Hospital and thereafter he ran away. She took Puja to a private doctor who after examining her told that she had been raped and be taken to a Government Hospital. Puja be got medically examined and legal action be initiated against the accused. Puja whose private part was bleeding, was sent to GTB Hospital under the supervision of Constable Swaran Singh, Public Witness 7. In the MLC No. 69562/1995 it is recorded that hymen of Puja was partially torn. Accordingly, case under Section 376, Indian Penal Code was registered against the accused and the investigation thereof was made over to said Public Witness 8. During investigation PW 8 prepared the site plan, recorded the statements of the PWs under Section 161, Cr. P. C. and arrested the accused. Pursuant to the disclosure statement, the accused is alleged to have got recovered a blood stained Baniyan Ex. P2 from the DDA Park in B- 5 Block, Nand Nagri. Public Witness 8 also took into possession blood stained frock of Puja - Ex. PI. P. C. and arrested the accused. Pursuant to the disclosure statement, the accused is alleged to have got recovered a blood stained Baniyan Ex. P2 from the DDA Park in B- 5 Block, Nand Nagri. Public Witness 8 also took into possession blood stained frock of Puja - Ex. PI. Baniyan and the frock were converted into separate parcels and deposited in the Malkhana. Accused was also got medically examined and the vials containing blood and semen samples were seized by Public Witness 8 and deposited in the Malkhana. Although exhibits had been sent for opinion to the office of the CFSL but the report was awaited till the filing of the chargesheet. ( 3 ) IN the statement under Section 313, Cr. P. C. plea taken by the accused-appellant is that on the date the offence was allegedly committed by him, he was on duty at Maharaja Park, Delhi and he reached the house at about 8 p. m. and had been implicated falsely in this case. ( 4 ) NARRATION of the relevant evidence led by the prosecution is necessary before adverting to the contention advanced on behalf of the appellant which I will be referring hereinafter. Out of the 8 PWs and one CW only the statements of Dr. Ritu Jain, Public Witness 1, Kishan, Public Witness 4, Smt. Bala, Public Witness 5, Constable Swaran Singh, Public Witness 7 and ASI Gopal Singh, PW 8 are relevant. ( 5 ) PW1. deposed that onth december, 1995. Baby Puja, aged about 2 years was brought by Constable Swaran Singh for examination with the alleged history of rape. She medically examined her and found no mark of external injury or laceration. On local examination hymen appeared to be partially torn and bleeding through hymen. MLC Ex. Public Witness I/a was prepared by her and it bears her signature at Point "a". In crossexamination she stated that hymen can be torn by penetration or by any other force of blunt object. ( 6 ) PUBLIC Witness 4, father of Puja deposed that on 30th December, 1995 on return from Nursery in the school Block, Shakarpur he found a crowd in the Mohalla and learnt that Puja was in Hospital. He went to GTB Hospital. His wife told him that the accused had raped his daughter. ( 6 ) PUBLIC Witness 4, father of Puja deposed that on 30th December, 1995 on return from Nursery in the school Block, Shakarpur he found a crowd in the Mohalla and learnt that Puja was in Hospital. He went to GTB Hospital. His wife told him that the accused had raped his daughter. In cross-examination he denied the suggestion that his wife did not tell him in regard to the rape on his daughter being committed by the accused. ( 7 ) PUBLIC Witness 5 stated that on 30th December, 1995 at about 2/2. 30 p. m. she was washing clothes on the roof of the house and Rahul and Puja were playing there. Puja fell down from the stair and she took her to a private doctor. On his refusal to attend Puja she took her to GTB Hospital. She was given medical treatment and after about 2/3 hours police came there and took her signature at point "a" on Ex. Public Witness 5/a. She denied of her statement being recorded by the Police. She was allowed to be cross-examined by the APP. When cross-examined by the APP, she admitted that the accused resided in the neighbourhood. She, however, denied of having made the statement that at 2 p. m. when she was washing clothes at the tap on the ground floor her children Rahul and Puja were playing inside the house and in the meantime accused came there, took Puja in his lap and want to first floor of her house; that after about 15-20 minutes accused came down with Puja and while handing her over he told that she had suffered injury on account of fall and be taken to Hospital and thereafter he fled away. She was confronted with portion A to A of the statement Ex. Public Witness 5/a where it was so recorded. She further denied of having made statement that the doctor after examining her daughter told that she had been raped and she be taken to Government Hospital; that thereafter she went to Hospital and the police got her daughter medically examined; that Puja was bleeding through her private part and she wanted legal action against the accused. She was confronted with portion B to B of the said statement Ex. Public Witness 5/a where it was so recorded. She was confronted with portion B to B of the said statement Ex. Public Witness 5/a where it was so recorded. She denied the suggestion that as she has compromised the matter with the accused she has deposed falsely. ( 8 ) PUBLIC Witness 8 stated that on 30th December, 1995 he was on emergency duty at PS Nand Nagri and around 2. 30 p. m. Smt. Bala came there alongwith her doughier Puja, aged about 3 years. She informed him that a person by the name of Lala Ram was his neighbour and he had raped Puja who was bleeding through her private part. He deputed Constable Swaran Singh to take them to GTB Hospital. On return to the police station at about 3. 30 p. m. or 4 p. m. Constable Swaran Singh gave the MLC to him. Statement of Smt. Bala was recorded before Puja was sent to Hospital. Case was registered against the accused. He further deposed that alongwith the said Constable he reached Hospital and after some time Kishan reached there and he also recorded his statement. Alongwith Kishan he visited the spot and prepared the site plan Ex. Public Witness 8/ A. In the room of the first floor of the house a big table was lying and there was blood on it. Spots of blood were also found on the floor of the room. He lifted the blood from the table and got the place photographed. Vaginal swab; underwear and blood sample of Puja were taken into possession on 30th December, 1995. It is further in his deposition that on 31st December, 1995 at about 5/6 a. m. accused was arrested from Sulabh Sauchalaya, Block No. B-5 at the instance of public persons whowere present there. Pursuant to the disclosure statement made by the accused Ex. Public Witness 7/a he got recovered a Baniyan, Ex. PI from the park in Block B-5 and the Baniyan was seized vide Memo Ex. PW 7/b. Baniyan was converted into a parcel and sealed with the seal of DSB. Accused was got medically examined and the samples of his blood and semen were seized vide memo Ex. Public Witness 7/d. Public Witness 8 was allowed to be cross-examined by the APP. When cross- examined by him, he stated that it was not the underwear but frock Ex. P2 of Puja which was taken into possession by him. Accused was got medically examined and the samples of his blood and semen were seized vide memo Ex. Public Witness 7/d. Public Witness 8 was allowed to be cross-examined by the APP. When cross- examined by him, he stated that it was not the underwear but frock Ex. P2 of Puja which was taken into possession by him. Ex. PX and PY are the CFSL reports. In cross- examination on behalf of the accused, he denied the suggestion that he did not record the statement of Smt. Bala before sending her to Hospital. He, however, admitted that DD No. 21 relates to the departure of a Constable and the allegations of rape are not mentioned therein. It is further in his deposition that he recorded the fact of the recording of the statement of Smt. Bala in the case diary but now he did not want to look into it. He denied the suggestion that he did not want to look into the case diary as the said fact was not mentioned therein. He did not recollect whether he prepared any memo in respect of the blood lifted from the floor or the table (at that stage APP pointed out that no such memo was placed on the file ). He also deposed that he prepared the seizure memo of the vaginal swab and the blood sample of Puja which were taken by the doctor and handed over to him (note is appended by the Court that no such memo was placed on the file nor reference in respect thereof was made in the report under Section 173, Cr. P. C. ). Frock Ex. P2 was given to him by her mother on 31st December, 1995. He denied the suggestion that the Baniyan Ex. PI was not recovered from the Park at the instance of the accused or that he was arrested from his house and not public latrines. ( 9 ) ONLY the statement made in the cross examination by Public Witness 7 is material. It is in his cross-examination that he had brought the frock of the child and handed it over to the 1. 0. 1. 0. did not record the statement of Smt. Bala when she had come to the police station and her statement was recorded at the police station after 5 p. m. after returning from the spot. It is in his cross-examination that he had brought the frock of the child and handed it over to the 1. 0. 1. 0. did not record the statement of Smt. Bala when she had come to the police station and her statement was recorded at the police station after 5 p. m. after returning from the spot. ( 10 ) IN the CFSL report Ex. PY no opinion is recorded about the species of origin and the group regarding samples of blood and semen of the accused-appellant as they were putrefied. Baniyan Ex. PI, frock Ex. P2, however, have been opined to be having stains of blood and semen of "a" Group. ( 11 ) SUBMISSION advance by Sh. K. B. Andley appearing for the appellant was that as Smt. Bala had not supported the prosecution case as reflected in the FIR the trial Judge acted erroneously in returning the finding of guilt under Section 376, Indian Penal Code on the basis of said CFSL report Ex. PY, and statement of Public Witness 8. There is considerable merit in the submission. As noticed above, Smt. Bala Public Witness 5 has denied on oath of having made the statement portion A to A and B to B of Ex. Public Witness 5/a to ASI Gopal Singh, Public Witness 8. According to her, only her signature at point "a" on Ex. Public Witness 5/a was obtained by the Police. It is this statement on the basis whereof the proceedings were initiated against the appellant. Needless to repeat that as per the testimony of ASI Gopal Singh, Public Witness 8 Smt. Bala alongwith Puja reached the police station at about 2. 30 p. m. and on being informed about the offence, her statement Ex. Public Witness 5/a was recorded by him before she together with Puja was taken to GTB Hospital by Constable Swaran Singh, Public Witness 7. It is, however, in the deposition of Public Witness 7 that he reached the Hospital alongwith Smt. Bala and Puja at 2. 45 p. m. and the said statement of Public Witness 5 was recorded at the police station after 5 p. m. on return from the spot. Further, in spite of the statement made by Public Witness 5 that portions A to A and B to B in Ex. 45 p. m. and the said statement of Public Witness 5 was recorded at the police station after 5 p. m. on return from the spot. Further, in spite of the statement made by Public Witness 5 that portions A to A and B to B in Ex. Public Witness 5/a were not given by her and that only her signature was obtained at point "a" thereon, Public Witness 8 did not choose to deny that fact and assert that he had correctly recorded Ex. Public Witness 5/a and signature at point "a" thereon was appended by PW 5 only after the making of that statement by her. In the absence of deposition to that effect by Public Witness 8 contradiction appearing in the depositions of Public Witness 7 and Public Witness 8, regarding the time of recording the statement of Public Witness 5 and the said denial on the part of Public Witness 5 aforesaid FIR cannot be read as substantive piece of evidence nor the testimony of Public Witness 8 safely relied upon to record the finding of guilt against the appellant. Public Witness 5 has further not supported the part of the statement made by her husband Kishan, Public Witness 4 that she told him that the appellant had raped their daughter. ( 12 ) IT would not be out of place to state that it is in the deposition of ASI Copal Singh, PW 8, that in the room on the first floor of the house of Public Witness 5 where the rape was alleged to have been committed, drops of blood on the floor and the big table lying inside were found by him and the blood from the table was lifted and he got the photographs taken. It is further in the testimony of Public Witness 8 that he prepared the seizure memo of the vaginal swab and the blood sample of Puja which were handed over to him by the doctor. Neither the seizure memo of the blood lifted from the table nor the memo in regard to vaginal swab and the blood sample handed over by the doctor has been placed on the file nor were those sent to CFSL by Public Witness 8 for analysis. Neither the seizure memo of the blood lifted from the table nor the memo in regard to vaginal swab and the blood sample handed over by the doctor has been placed on the file nor were those sent to CFSL by Public Witness 8 for analysis. Not only that, the statement of Kishan, PW 4 with whom Public Witness 8 claims to have visited the room on the first floor is conspicuously silent regarding that visit. In the site plan Ex. Public Witness 8/b the positions of the table and the drops of blood found lying on the floor, have not been depicted. Photographs of the room too have not been filed. There is contradiction in the statement of ASI Gopal Singh, PW 8 inregard to the date on which frock Ex. P2 was taken into possession by him. In the examination-in-chief the date has been disclosed as 30th December, 1995 while in cross-examination as 31st December, 1995. As noticed earlier, there is also inconsistency in the statements of Public Witness 7 and Public Witness 8 either by Smt. Bala, Public Witness 5 or Constable Swaran Singh, PW 7. In my opinion, it being a case based on circumstantial evidence the appellant cannot be legally held guilty on the basis of blood and the semen of the same group being found on the Baniyan and frock and the hymen of Puja partially torn and bleeding therefrom. In the facts and circumstances of this case, decision in Pattu Lal v. State of Punjab, 1996 (3) C. C. Cases 14 (SC), on which the trial Judge had placed strong reliance, has no applicability. ( 13 ) FOR the foregoing discussion, the appeal is allowed, judgment and order under appeal are set aside and the appellant is acquitted of the charge under Section 376, IPC. He be set at liberty forthwith if he is not required to be detained in any other case.