JUDGMENT : R.L. Khurana, J. The appellant, Ram Dass Bandhu, hereinafter referred to as the accused stands convicted by the learned Additional Sessions Judge, Solan in Sessions Trial No. 15-S/7 of 2002 vide judgment dated 8.12.2003 for the offence under Section 376 Indian Penal Code, and upon such conviction he has been sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 10,000/-. In default of payment of fine, he has further been sentenced to undergo rigorous imprisonment for one year. The amount of fine, if realized, was directed to be paid to the prosecutrix (P.W.5) as compensation. 2. By virtue of the present appeal preferred by the accused through Jail, he has assailed the conviction and sentence imposed upon him by the learned Additional Sessions Judge. 3. Briefly stated, the prosecution story is this. The accused claims himself to be a "Parcharak" (Religious Preacher) and is known as "Sant Shiromani Swami Ram Dass Bandhu". In April/May, 2001, he had organised a camp near Old Anaj Mandi, Ambala City in Haryana State for the purpose of delivering religious discourses and also to provide medicines for the cure of various ailments. The religious discourses were delivered in three sessions every day. 4. On 1.5.2001, the prosecutrix "G" (PW5) along with her mother "S" (PW6) went to attend the congregation which was held between 4 p.m. to 6 p.m. They reached the congregation at about 4.30 p.m. After having listened to the religious discourse for sometime P.W.5 and her mother P.W-6 approached the accused for getting some medicine for the treatment of the ailment with which P.W.5 was suffering. After examining P.W-5, the accused told her mother P.W-6 that he would like to administer the medicine to P.W.5 at some isolated place. The accused then took P.W.5 and her mother to a nearby "Chobara" above the shop of Messrs. Suraj Bhan Sadhu Ram, in which "hobara" the accused had set up his residence. After making P.W.6 to sit in a room, the accused took the prosecutrix P.W.5 to the kitchen located near the stairs. He then locked the kitchen from inside and made the prosecutrix to lie on a wooden table (Takhat). He then gagged her mouth and removed her panty and subjected her to forcible sexual intercourse. P.W-6 after having waited for 10/15 minutes, knocked at the kitchen door. He then locked the kitchen from inside and made the prosecutrix to lie on a wooden table (Takhat). He then gagged her mouth and removed her panty and subjected her to forcible sexual intercourse. P.W-6 after having waited for 10/15 minutes, knocked at the kitchen door. The accused opened the door. P.W-5 came out of the kitchen. She was weeping and on being asked as to what happened, she narrated the entire occurrence to her mother P.W-6. Both P.W-5 and P.W-6 returned home and narrated the occurrence to Shri Raj Kumar, the father of the prosecutrix P.W.5. The occurrence was not disclosed to anyone either by P.W.5 or P.W.6 or the father of the prosecutrix out of shame and fear on that day. However, on the following day, that is, 2.5.2001 at about 10.05 a.m. P.W-5 accompanied her mother went to Police Post No. 1, Ambala and made a report Ex. P.W-5/A to P.W-12 Assistant Sub Inspector Mange Ram, on the basis of which a case for the offence under Section 376 Indian Penal Code, came to be registered at Police Station, Ambala City vide FIR No. 165, Ex. PA. 5. P.W-6, the mother of the prosecutrix, produced the panty (underwear) Ex. P1 belonging to the prosecutrix before P.W-12 ASI Mange Ram, which was taken in possession vide memo Ex. P.W-1/A. 6. P.W-6, the prosecutrix was sent for medical examination. Such medical examination was carried out by PW-10 Dr. Veenu Sethi at civil Hospital, Ambala, at about 11.45 a.m. on 2.5.2001. P.W-10 observed as under : "Alleged history of being sexually assailed on the previous evening by some Sadhu General Examination : General condition was stable, conscious, well oriented, vitals maintained. On examination no external mark of injury was seen on the body. The girl had started having her periods (menstrual) six months back. Her last menstrual period was 20.4.2001. Breast was normally developed. Local Examination. External genitalia, pubic hair developed. No external mark of injury or bleeding was seen in vagina. Two vaginal swabs were taken from vagina and sealed into two separate vials. Per Vagina Examination. Vagina admitted one finger easily. Cervix felt, small in size. No discharge of blood was found on the examining finger. Vaginal mucosa showed mild congestion and focal area of laceration. The girl had taken bath in the morning of the day, of examination and had changed the clothes." 7. Per Vagina Examination. Vagina admitted one finger easily. Cervix felt, small in size. No discharge of blood was found on the examining finger. Vaginal mucosa showed mild congestion and focal area of laceration. The girl had taken bath in the morning of the day, of examination and had changed the clothes." 7. One wet underwear of the prosecutrix which she was alleged to be wearing on the previous day was produced by the police in a sealed packet before PW-10, which. she returned and handed over to the police. 8. PW-10 also handed over two sealed vials containing the vaginal swab to the police. Such vials were sealed with the seal mark "C.S." Specimen of the seal "C.S.", used in sealing the vials was also handed over by her to the Police. All these articles were taken into possession by the investigation officer PW-12 ASI Mange Ram vide memo Ex. PW-1/B. 9. PW-10 on having medically examined the prosecutrix opined that the possibility of the prosecutrix having been subjected to rape could not be ruled out. 10. The accused came to be arrested on 2.5.2001 and was subjected to medical examination which was carried out by P.W-11 Dr. B.B. Lala. The accused was found fit and capable of committing sexual intercourse. At the time of medical examination no smegma was found over the glance penis. Public hairs were well developed and no matting of the hairs was found. P.W-10 also took into possession the under-wear of the accused and handed it over to the police in a sealed packet sealed with the seal "C.S." along with the specimen of the seal used in sealing the packet and the same were taken into possession by the police vide memo Ex. PW-1/C. 11. The underwear of the prosecutrix, the vials containing the vaginal swab and the under-wear of the accused were sent to the Forensic Science Laboratory, Haryana at Madhuban in District Karnal and vide report Ex. PW-12/F human semen was detected on the underwear and the vaginal swab of the prosecutrix. However, no human semen was detected on the underwear of the accused. 12. PW-12/F human semen was detected on the underwear and the vaginal swab of the prosecutrix. However, no human semen was detected on the underwear of the accused. 12. On the completion of the investigation, final report under Section 173, Code of Criminal Procedure, was prepared and submitted to the learned Chief Judicial Magistrate, Ambala, who vide order dated 17.7.2001 committed the case to the Court of Sessions for the trial of the accused for the offence under Section 376 Indian Penal Code. 13. While the case was pending trial before the learned Additional Sessions Judge, Ambala the accused approached the Hon'ble Supreme Court by way of a transfer petition under Section 406, Code of Criminal Procedure, being Transfer Petition (Criminal) No. 490 of 2002 for the transfer of the case outside State of Haryana. The Hon'ble Supreme Court on 30.9.2002 allowed such transfer petition of the accused in the following terms : "Considering the allegations made in this petition and F.I.R. lodged against the petitioner, Criminal Case No. 40/2001 (Swami Ram Dass Bandhu v. State of Haryana) pending in the Court of Additional Sessions Judge, Ambala in the State of Haryana is directed to be transferred to the District Judge, Solan, Himachal Pradesh and the District Judge would try the same or transfer it to a competent Court for its trial." 14. The learned Sessions Judge, Solan, on the receipt of the record by transfer from Ambala, assigned and transferred the case to the learned Additional Sessions Judge, Solan for trial. 15. The accused on being charged for the offence under Section 376 Indian Penal Code, did not plead guilty and claimed trial. 16. The prosecution in support of its case in order to bring home the offence against the accused examined twelve witnesses in all. 17. The accused in his statement recorded under Section 313, Code of Criminal Procedure, admitted that he used to deliver religious discourses and on the relevant day, the prosecutrix along with her mother had attended the congregation for about two hours. He, however, denied that he used to administer medicine to the persons attending the congregation or that the prosecutrix and her mother had approached him for medicine. The remaining prosecution story was denied. It was pleaded that he has been falsely implicated since the police was inimical towards him. 18. He, however, denied that he used to administer medicine to the persons attending the congregation or that the prosecutrix and her mother had approached him for medicine. The remaining prosecution story was denied. It was pleaded that he has been falsely implicated since the police was inimical towards him. 18. The learned Additional Sessions Judge after having heard the accused and the prosecution under Section 232, Code of Criminal Procedure, called upon the accused to enter upon his defence. The accused vide his statement dated 7.7.2003 expressed an intention to lead evidence in defence. He submitted a list of as many as seventeen witnesses, which he desired to examine in his defence. However, no witness was summoned and examined by the learned Additional Sessions Judge and vide order dated 6.10.2003 the defence of the accused was closed. The order passed by the learned Additional Sessions Judge on 6.10.2003 closing the defence of the accused, reads : "Present : Sh. N.L. Sen, Id. APP, for the State. Accused Ram Dass Bandhu in custody. Reasons for summoning of DWs are not filed by the accused and instead he has filed an application for issuing direction to the Supdt. Central Jail, Nahan to taken him in the Sessions Court premises at Nahan on 18.10.2003 from 10 a.m. to 5 p.m. in police custody. The request is declined on the grounds that he has cited the Superintendent Central Jail, Nahan and Criminal Ahlmad of ld. CJM, Solan as defence witnesses to prove the applications filed by him before the Hon'ble Supreme Court as well as in the Hon'ble High Court of H.P. and against the Presiding Officer in connection with the conduct of the proceedings in this case. The citing of the said witness does not have any bearing on the defence, therefore, the prayer to summon the said DWs is declined. The accused has also sought summoning of Criminal Ahlmad of Id. C.J.M. Court Ambala in order to prove the statement of ...... recorded on 17.7.2001 in the Court. However, no such statement has been recorded nor has been produced on record, therefore, the prayer to summon the Criminal Ahlmad of CJM, Ambala is also declined. The record of complaint filed before JMIC Ambala has also not been field, so its relevancy cannot be gathered. recorded on 17.7.2001 in the Court. However, no such statement has been recorded nor has been produced on record, therefore, the prayer to summon the Criminal Ahlmad of CJM, Ambala is also declined. The record of complaint filed before JMIC Ambala has also not been field, so its relevancy cannot be gathered. Apart from it, the accused has made prayer to obtain the opinion of FSL for re-examination of DNA report and handwriting expert to prove forgery. However, it is clear from the assertion of the accused that he has already cross examined the Doctor in this behalf. Therefore, the prayer for obtaining of FSL opinion and handwriting expert also stands Swami Ram Dass Bandhu v. State of Haryana 473 declined. The prayer has also been made to summon the Principal of S.D. Model School, Old Anajmandi, Ambala along with attendance register of "........" Kharati Lal, H.C. Surinder Singh inspector constable Sat Pal and M.O. However, Surinder Singh Inspector, was given up by the prosecution being formal, as signatory to the challan only. The Medical Officer, Ambala has also been cross-examined by the accused, therefore, he cannot be permitted to summon the M.O. as defence witness. There is no cogent reason made out for summoning of H.C. Kharati Lal and Constable Sat Pal. The accused has also cited DWs Rajesh Kumar, Smt. Shashi Bala, Smt. Vimla Devi, Jindu Ram, Arvind Kumar and Agnishwar as defence witnesses and since the reasons for summoning the DWs are not filed despite opportunities. Therefore, it appears that the present application has been filed just to delay the trial proceedings and as such the prayer to summon the said witnesses is also declined. Now to come up for arguments on 23.10.2003." (Name of prosecutrix has been omitted from the above). 19. Another application made by the accused for summoning of defence witnesses was dismissed by the learned Additional Sessions Judge on 26.11.2003. 20. After hearing the prosecution and the accused, the learned Additional Sessions Judge upon consideration of the evidence led before him, came to the conclusion that a case for the offence under Section 376 Indian Penal Code, stood proved against the accused beyond reasonable doubt. He, accordingly, vide the impugned judgment dated 8.1/2.2003 convicted and sentenced the accused as aforesaid. 21. It may be pointed out that the accused is not represented by any counsel. He, accordingly, vide the impugned judgment dated 8.1/2.2003 convicted and sentenced the accused as aforesaid. 21. It may be pointed out that the accused is not represented by any counsel. Legal assistance was sought to be provided to him. The accused, however, on 14.7.2004 expressed an intention that he would like to argue his appeal himself and that he did not require any legal aid or assistance. 22. We have heard the accused in person and the learned Additional Advocate General for the State and have also gone through the record of the case. 23. The first contention raised by the accused is that though a statement of the prosecutrix is shown to have been recorded under Section 164, Code of Criminal Procedure, no copy thereof has been supplied to him as required under Section 207, Code of Criminal Procedure, in spite of repeated applications having been made by him in this regard. The failure of the prosecution and/or the Court to supply him the copy of the statement of the prosecutrix recorded under Section 164, Code of Criminal Procedure, has not only caused-grave prejudice to him, has also rendered the trial illegal and vitiated. It was further contended that not only copy of the statement of the prosecutrix recorded under Section 164, Code of Criminal Procedure, was denied to him, the learned trial Court has even refused him the opportunity to prove such statement by calling the concerned Magistrate in defence evidence. 24. It may be noticed that it was not the case of the prosecution during the course of trial nor it has been contended on behalf of the State before us that no statement of the prosecutrix was ever recorded under Section 164, Code of Criminal Procedure. The stand of the prosecution throughout is that since no reliance was being placed by it on the statement recorded under Section 164, Code of Criminal Procedure, the accused was not entitled to a copy thereof. 25. The fact that a statement under Section 164, Code of Criminal Procedure, of the prosecutrix appears to have been recorded is borne out from the order dated 17.7.2001 of the learned Chief Judicial Magistrate, Ambala, vide which the case was committed by her to the Court of Sessions for the trial of the accused for the offence under Section 376 Indian Penal Code. Para 3 of such order reads : "On the statement of the complainant F.I.R. No. 165 under Section 376 Indian Penal Code, was registered. Statement of ....... was recorded under Section 164, Criminal Procedure Code During the course of investigation, accused was arrested. After completion of usual investigation, challan against the accused was put up in the Court to face trial." (Name of the prosecutrix has been omitted from the above). 26. The learned Additional Sessions Judge, Solan, on having received the record of the case by way of assignment by the learned Sessions Judge, Solan on 25.10.2002 had passed an order in the following terms : "Present : Shri Anil Sood, Ld. P.P. for the State accused Ram Dass in judicial custody. Heard Ld. Additional Sessions Judge, Ambala has already framed charge against the accused on 20.4.4002. At this stage, it transpired that a statement recorded under Section 164 Criminal Procedure Code by Smt. Sunita Gupta, learned C.J.M. Ambala City, has not been sent along with record to this Court, let the statement of "............" prosecutrix under Section 164 Criminal Procedure Code be called from Court of old C.J.M. Ambala forthwith. Let record be awaited for 23.12.2002." (Name of prosecutrix omitted from above) 27. It, however, does not transpire from 'the record whether any report was received from the Chief Judicial Magistrate, Ambala in pursuance to the above order and, if so, to what effect. Nor the learned Additional Sessions Judge, Solan, appears to have verified and checked the compiasnce of his above said order when the case was taken up on 23.12.2000 or on any other subsequent date. 28. The record further shows that on 23.12.2000 an application was made by the accused for the supply of the copy of the statement of the prosecutrix recorded under Section 164, Code of Criminal Procedure. The learned Additional Sessions Judge dismissed the said application by observing : "Another application filed by the accused praying therein for supply of copy of statement recorded under Section 164, Criminal Procedure Code being vital documents by the then Id. C.J.M. Ambala. Reply to the said application also not filed nor intended to be filed. Heard. Since, the accused has not raised any objections before ld. C.J.M. Ambala. Reply to the said application also not filed nor intended to be filed. Heard. Since, the accused has not raised any objections before ld. C.J.M. Ambala when the case was being committed to the Court of Sessions and further more then prosecution has not relied upon the statement of the prosecutrix recorded under Section 164 Criminal Procedure Code by the Id. C.J.M. Ambala and obviously, therefore, this objection has been filed by the accused for the sake of objection and as such no such document is required to be given to the accused at this juncture when the case was already fixed for prosecution evidence. However, the accused is at liberty to confront the statement recorded by the ld. C.J.M. Ambala at the time of trial. Accordingly, the application is dismissed as devoid of force." (Emphasis supplied) 29. Be it stated that though liberty was reserved to the accused to confront the prosecutrix on the basis of the statement recorded under Section 164, Code of Criminal Procedure, the learned Additional Sessions Judge, did not deem it fit and proper to supply a copy of such statement to the accused. We fail to understand how the accused would be able and in a position to confront the prosecutrix in the absence of the copy of the statement having been made available to him. 30. It is thus, come out from the record that a statement of the prosecutrix, in the absence of specific case of the prosecution that no such statement was even recorded, under Section 164, Code of Criminal Procedure, was recorded by a Magistrate at Ambala and that a copy thereof was never made available to the accused. 31. As pointed out above, the primary reason for not supplying the copy of the statement of the prosecutrix recorded under Section 164, Code of Criminal Procedure, is that such statement has not been relied upon by the prosecution. 32. There is no denying that several attempts were made by the accused during the course of the trial of the case at Ambala and at Solan by making applications for the supply of a copy of the statement of the prosecutrix recorded under Section 164, Code of Criminal Procedure, and that all such applications made by him were dismissed for one reason or the other. 33. 33. The question that next arises is as to what is the effect of non-supply of the copy of the statement of the prosecutrix recorded under Section 164, Code of Criminal Procedure to the accused ? 34. Section 164 (6), Code of Criminal Procedure provides that the Magistrate recording the confession or statement under this Section shall forward it to the Magistrate by whom the case is to be inquired into or tried. 35. Section 173 (5), Code of Criminal Procedure, lays down : "When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report :- (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation. (b) the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses." (Emphasis supplied) 36. Even though an exception to the requirement contained in Section 173 (5) above is provided in Sub-section (6) of Section 173, whereby if the police officer is of the opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that is disclosure to the accused is not essential in the interests of justice and is in expedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request, however, this exception has not been resorted to nor availed of by the Investigation Officer in the present case while supplying the copies of the documents contemplated under Section 173, Code of Criminal Procedure. 37. Reference at this stage, may also be made to the provisions contained in Section 207, Code of Criminal Procedure. This Section provides : "207. Supply to the accused of copy of police report and other documents. 37. Reference at this stage, may also be made to the provisions contained in Section 207, Code of Criminal Procedure. This Section provides : "207. Supply to the accused of copy of police report and other documents. - In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of costs, a copy of each of the following : (i) the police report; (ii) the first information report recorded under Section 154; (iii) the statements recorded under Sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under Sub-section (6) of Section 173; (iv) the confessions and statements, if any, recorded under Section 164; (v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under Sub-section (5) of Section 173. Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused : Provided, further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect k either personally or through pleader in Court. (Emphasis supplied) 38. A combined reading of Section 173 (5) and Section 207, Code of Criminal Procedure, would go to show that emphasis is on the person whom the prosecution proposes to examine as its witnesses during the trial and not on their statements on which the prosecution proposes to rely for proving charge against the accused. This distinction is doubly reassured from the use of word "whom" in these two Sections, which word must necessarily refer to the persons and not to their statements for which the word "which" would have been used instead. 39. This distinction is doubly reassured from the use of word "whom" in these two Sections, which word must necessarily refer to the persons and not to their statements for which the word "which" would have been used instead. 39. The distinction, to our mind, is of great importance and significance from the stand point of an accused inasmuch as if the Investigating Agency has recorded the statement of a witness more than once, whether under Section 161 or Section 164, Code of Criminal Procedure, there may be material contradictions in the same and the accused may like to utilise the same for his benefit and this can be done only when the copies of all such statements are supplied to him. The purpose of enabling the accused to contradict a witness on the basis of his/her previous statement would be frustrated if the copies of only such statements, as are sought to be relied upon by the prosecution, are supplied to the accused and by denying the supply of the rest. 40. The emphasis on the witnesses relied upon by the prosecution means that the prosecution would be bound to supply all the statements even if recorded more than once, whether under Section 161 of Section 164, Code of Criminal Procedure. A valuable right has been conferred upon the accused and the same cannot be denied to him. 41. It has been held in State of Kerala v. Raghavan etc., 1974 Cr.L.J. 1373 as under : "The prosecution cannot pick and choose and refuse to supply to the accused the copies of the statements which are contradictory to the prosecution case on the ground that the prosecution is not going to rely on the statements of those witnesses. Otherwise, it would mean deviation from the mandatory provisions of criminal law and to deny the accused Just and fair trial." 42. In State of Kerala v. Thomas Cherian and others, 1982 Cr. L.J. 2303 (Kerala), the Investigation Officer had admitted in his evidence that the approver was questioned by him and his statement was recorded under Section 161 (3), Code of Criminal Procedure. The statement of the approver was also recorded under Section 306, Code 478. 2005(Suppl.) (H.P.) of Criminal Procedure before grant of pardon. The approver was later, after the grant of pardon, was examined as a witness for the prosecution. The statement of the approver was also recorded under Section 306, Code 478. 2005(Suppl.) (H.P.) of Criminal Procedure before grant of pardon. The approver was later, after the grant of pardon, was examined as a witness for the prosecution. Copies of the statements of the approver recorded earlier under Section 161 (3) and 306, Code of Criminal Procedure, were not supplied to the accused. 43. It was held by the Division Bench of the Kerala High Court that such copies of statements were material documents and should have been made available to the accused to enable him to cross-examine the witness (approver) and failure on the part of the prosecution to supply the copies of such statements has caused prejudice to the accused for having been deprived of valuable material for cross-examination of the approver for the purpose of testing his reliability. 44. Similarly, in S.J. Chowdhary v. The State, 1984 Cr. L.J. 864 (Delhi), though a number of witnesses were cited for the prosecution and the statements of some of them had been recorded more than once under Section 16 (3), Code of Criminal Procedure, by the Investigating officer, copies of all such statements were not supplied to the accused. Besides, though as many as 40 photographs of the scene of occurrence were admitted to have been taken by the Investigating Officer, only 31 photographs were supplied to the accused. The supply of remaining nine photographs were denied to the accused on the ground that the same were not relevant for the purpose of the case and that the prosecution did not intend to rely thereupon. 45. A learned Single Judge of the Delhi High Court held that the copies of statements and the photographs, which were not supplied to the accused, were required to be supplied to the accused and failure to do so would cause prejudice to the accused in his defence. 46. 45. A learned Single Judge of the Delhi High Court held that the copies of statements and the photographs, which were not supplied to the accused, were required to be supplied to the accused and failure to do so would cause prejudice to the accused in his defence. 46. The Hon'ble Supreme Court in Noor Khan v. State of Rajasthan, AIR 1964 SC 286 , dealing with the object and scope of Sections 162, 173 (4) and 207-A (3) of the Code of Criminal Procedure, 1898 (corresponding to Sections 162, 173 (5) and 207 of the Code of Criminal Procedure, 1973, has held in para 15 of the report : "The object of Sections 162, 173 (4) and 207A (3) is to enable the accused to obtain a clear picture of the case against him before the commencement of the inquiry. The sections impose an obligation upon the investigation officer to supply before the commencement of the inquiry copies of the statements of witnesses who are intended to be examined at the trial so that the accused may utilise those statements for cross-examination the witnesses to establish such deference as he desires to put up, and also to shake their testimony. Section 161 (3) does not require a police officer to record in writing the statements of witnesses examined by him in the course of the investigation, but if he does record in writing any such statements, he is obliged to make copies of those statement available to the accused before the commencement of proceedings in the Court so that the accused may know the details and particulars Swami Ram Dass Bandhu v. State of Haryana 479 of the case against him and how the case is intended to be proved. The object of the provision is manifestly to give the accused the fullest information in the possession of the prosecution, on which the case of the State is based, and the statements made against him. But failure to furnish statements of witnesses recorded in the course of investigation may not vitiate the trial. It does not affect the jurisdiction of the Court to try a case, nor is the failure by itself a ground which affects the power of the Court to record a conviction, if the evidence warrants such a course. But failure to furnish statements of witnesses recorded in the course of investigation may not vitiate the trial. It does not affect the jurisdiction of the Court to try a case, nor is the failure by itself a ground which affects the power of the Court to record a conviction, if the evidence warrants such a course. The provision relating to the making of copies of statements recorded in the course of investigation is undoubtedly of great importance, but the breach thereof must be considered in the light of the prejudice caused to the accused by reason of its breach, for Section 537 Code of Criminal Procedure, provides, amongst other things that subject to the provisions contained in the Code no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice. By the explanation to Section 537 it is provided that in determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceeding." It has further been held in para 21 of the report :- "(21) We may repeat that the provisions of Section 162, Code of Criminal. Procedure provide a valuable safeguard to the accused and denial thereof may be justified only in exceptional circumstances. The provisions relating to the record of the statements of the witnesses and the supply of copies of the accused so that they may be utilised at the trial for effectively defending himself cannot normally be' permitted to be whittled down, and where the circumstances are such that the Court may reasonably infer that prejudice has resulted to the accused from the failure to supply the statements recorded under Section 161, the Court would be justified in directing that the conviction be set aside and in a proper case to direct that the defect be rectified in such manner as the circumstances may warrant. It is only where the Court is satisfied, having regard to the manner in which the case has been conducted and the attitude adopted by the accused in relation to the defect, that no prejudice has resulted to the accused that the Court would, notwithstanding the breach of the statutory provisions, be justified in maintaining the conviction. This, in our judgment, is one of those cases in which such a course is warranted." 47. In the present case, as observed above, repeated objections were made by the accused with regard to the non-supply of the copy of statement of the prosecutrix recorded under Section 164, Code of Criminal Procedure. Not only that such copy-was denied to him even the accused was denied the opportunity to lead evidence in defence to prove the making of such a statement by the prosecutrix. Therefore, a great prejudice has been caused to the accused for having been deprived of valuable material for cross-examination of the prosecutrix for the purpose of testing her reliability. 48. Even on merits, we are of the opinion that the prosecution has not been able to bring home the offence against the accused beyond a reasonable doubt. 49. It is the case of the prosecution itself that the prosecutrix along with her mother had gone to attend the religious discourse during the session 4 P.M. to 6 P.M. According to the prosecutrix she and her mother reached the congregation at about 4.30 p.m. They heard the religious discourse for about 15 minutes and thereafter she was taken by her mother to the accused, who after examining her told her mother that he would administer medicine to the prosecutrix at an isolated place. The prosecutrix was then taken to the kitchen adjoining the stairs and raped there. It took about 10 to 15 minutes for the entire episode. 50. Reading the statement of the prosecutrix and her mother together it can be inferred that the occurrence of rape took place sometime during 4.45 p.m. and 5.15 p.m. Admittedly there was a large gathering in the congregation, which was to continue till 6 p.m. Did the accused left the congregation midway and took the prosecutrix to the kitchen for committing sexual assault upon her ? Nothing has come on the record to this effect. 51. Nothing has come on the record to this effect. 51. Besides, it cannot be delivered that the prosecutrix and her mother would have remained silent about the occurrence, which is alleged to have taken place while the congregation was in progress. In normal course they would have raised a hue and cry and would have immediately raised a complaint against the accused especially to the persons present in the congregation. 52. The <169>Chaubara" and the kitchen where the prosecutrix was alleged to have been taken, as per prosecution own case, is located above the shop of Mesrs. Suraj Bhan Sadhu Ram. There is nothing on the record to show that such shop was closed at the relevant time. This "Chaubara" and kitchen is located just adjoining the place of congregation. It cannot be believed and accepted that none had heard the cries of the prosecutrix. 53. It is in the statement of the prosecutrix herself that she and her mother were weeping while returning home. Surprisingly enough none is stated to have seen them weeping. 54. The prosecutrix has also stated that two persons were working outside the room of the "Chaubara" when she was taken to that place by the accused. Who were these two persons ? This question has remained unanswered. Both these persons were thus very material to show and corroborate the prosecutrix and her mother about the fact of the prosecutrix having been taken to the "Chaubara" by the accused. Their non-examination casts a shadow of doubt on the truthfulness of the prosecution story. 55. The prosecutrix and her mother are alleged to have approached the accused for taking some medicine for the prosecutrix. However, there is no evidence to show if the prosecutrix was suffering from any ailment at the relevant time and if so, with what ailment for which medicine was required from the accused. 56. P.W-10 Dr. Veenu Sethi, who carried out the medical examination of the prosecutrix has categorically stated that no marks of external injury or bleeding was seen in the vagina. According to her vaginal mucosa showed mild congestion and focal area of laceration, however, she did not find any signs of recent rupture of he hymen. 57. Much reliance was placed by the learned trial Judge on the fact that stains of human semen were found on the panty Ex. According to her vaginal mucosa showed mild congestion and focal area of laceration, however, she did not find any signs of recent rupture of he hymen. 57. Much reliance was placed by the learned trial Judge on the fact that stains of human semen were found on the panty Ex. P.1 belonging to the prosecutrix as also on the vaginal swab sent for chemical examination. Admittedly, no stains of human semen were found on the underwear of the accused. 58. The panty Ex. P-1 belonging to the prosecutrix was produced before the Police by P.W-6, the mother of the prosecutrix on 2.5.2001, that is, the day following the day of alleged occurrence. Such panty was taken into possession by the Investigating Officer P.W-12 vide memo Ex. P.W.1/A. 59. A perusal of the seizure memo Ex. P.W.1/A shows that the panty while being taken into possession was never sealed by PW-12. It only records : "The underwear has been taken into possession by the police vide memo for the purpose of evidence." 60. The panty Ex. P-1 was produced before PW-10 Dr. Veenu Sethi at the time of the medical examination of the prosecutrix. Medico Legal Certificate Ex. PW-10/B was issued by PW-10 in respect of the prosecutrix after her medical examination. This certificate contains an endorsement by P.W.10 in the following terms : "The wet underwear of yesterday with police. Brought by the police, sealed with white cloth and handed over to police for Chemical Examination." 61. Dr. Veenu Sethi, while appearing as P.W-10 has deposed that the wet underwear of previous day was brought to her by the police sealed in a white cloth. In view of such statement of PW-10 it is evident that PW-10 did not seal the underwear of the prosecutrix. It was already sealed. Nothing has come on the record to show as to who sealed the underwear and wit what seal. 62. The vials containing the vaginal swab of the prosecutrix as per medico legal certificate Ex. PW-10/B were sealed with the seal mark "C.S." by PW-10. While handing over these sealed vials to the Police, PW-10 had also handed over the impression of the seal "C.S." used in sealing the vials. 63. Ex. PW-1/B is the seizure memo dated 2.5.2001 vide which the investigation officer PW-12, is shown to have taken the following articles into possession from P.W-10 Dr. While handing over these sealed vials to the Police, PW-10 had also handed over the impression of the seal "C.S." used in sealing the vials. 63. Ex. PW-1/B is the seizure memo dated 2.5.2001 vide which the investigation officer PW-12, is shown to have taken the following articles into possession from P.W-10 Dr. Veenu Sethi : (i) One parcel sealed with the seals of impression "C.S." containing the underwear of the prosecutrix; (ii) Two parcels sealed with seal "C.S." containing small vials containing vaginal swab; and, (iii) One parcel sealed with seal "C.S." and bearing address of FSL, Madhuban along with sample of seal. 64. The investigation officer P.W-12 has also deposed that he was handed over three sealed packets sealed with seal "C.S." containing the underwear of the prosecutrix and the vaginal swab. 65. However, a perusal of Ex. POW-12/F the report of the Forensic Science Laboratory shows that the sealed packets purported to contain the underwear of the prosecutrix and the vials containing the vaginal swab were sealed with the seal "Dr". In other words, the packets were not sealed with the seal 'C.S.' with which these were sealed as is evident from Ex. PW-1/B and Ex. OPW-10/B and the statement of PW-12. 66. The mere fact that the sealed packets received at the Forensic Science Laboratory were found to have been sealed with a seal different from the seal with which such packets were originally sealed, leads to the only inference that the case property and the sealed packets were tampered with after its seizure and before it reached the Laboratory. Therefore, no reliance can be placed on the report Ex. P.W-12/F and the fact that stains of human semen were found on the underwear/panty Ex. P-1 belonging to the prosecutrix. 67. It is also pertinent to note that the panty Ex. P-1 produced in the Court was not got identified either from the prosecutrix or from her mother (P.W-6) to be that of the prosecutrix. 68. For the foregoing reasons the conviction and sentence imposed upon the accused cannot be sustained and are liable to be set aside. 69. Resultantly, the appeal is allowed. The conviction and sentence imposed upon the accused by the learned trial Judge are set aside and the accused is acquitted of the offence under Section 376 Indian Penal Code. 70. 68. For the foregoing reasons the conviction and sentence imposed upon the accused cannot be sustained and are liable to be set aside. 69. Resultantly, the appeal is allowed. The conviction and sentence imposed upon the accused by the learned trial Judge are set aside and the accused is acquitted of the offence under Section 376 Indian Penal Code. 70. The accused, who is lodged in jail undergoing sentence, shall be released forth with, if not required in any other case. The fine, if already realized, shall be refunded to him. Case property may be dealt with as per orders/directions of the learned trial Court. 71. A copy of this judgment be forwarded to the accused through Superintendent Jail for his information.