J U D G M E N T (Per the Hon’ble Mr.Justice A. Gopal Reddy) 1. The sole accused in S.C.No.535 of 2002, who was tried and convicted for the offence under Section 376 (2) (f) IPC by the VI Additional Sessions Judge, Guntur, preferred this appeal. 2. Accusations which led to the trial of the appellant was that on 05-06-2002 at about 1.30 P.M. at the house of Shaik Mahabuni-P.W.1 committed rape on a minor girl-Shaik Mastanbi-P.W.2. 3. Prosecution version as narrated in nutshell is as follows: The accused and the material prosecution witnesses are residents of K.V.P. Colony, Guntur. P.W.1 is the sister of P.W.2. P.W.2 is the victim girl. P.Ws.3 and 5 are brothers and P.W.8 is the mother of P.W.2. P.W.5 is the husband of P.W.1. About two years back when P.W.1’s husband was in hospital, she used to take food for him to the hospital. During that time the victim girl was with them. On 05-06-2002 at about 1.30 P.M., when P.W.1 returned from the hospital she found the doors closed. Then she knockedd the front door. As the front door was not opened, she went near the backside door and knocked it. Then the accused has come out of the house and ran away. P.W.1 went inside the house and asked P.W.2 what happened. P.W.2 - victim girl told that accused came to the house and asked for a glass of water, when she went inside of the house to bring water, the accused closed the doors; caught hold.and made her to fell down and raped her. Thereafter, P.W.1 went to the house of the accused for questioning about the same, but his doors were locked. On the next day she went to the police station and lodged the report-Ex.P1, on which basis police registered a case in Cr.No.118 of 2002 under Section 376 IPC. On 07-06-2002 at 2 P.M. P.W.9-the Sub-Inspector of Police, Nagarampalem police station went to the scene of offence and recorded the statements of P.Ws.1 to 8 and sent the victim girl-P.W.2 for medical examination. P.W.6, the Assistant Professor, Gynecology Department, Government General Hospital, Guntur on receipt of requisition examined P.W.2 and issued Ex.P2 certificate opinion that there is no evidence to suggest sexual intercourse. P.W.6, the Assistant Professor, Gynecology Department, Government General Hospital, Guntur on receipt of requisition examined P.W.2 and issued Ex.P2 certificate opinion that there is no evidence to suggest sexual intercourse. On receipt of requisition, P.W.11, Professor, Forensic Medicine, Guntur Medical College at the relevant point of time examined P.W.2 on 10-06-2002 and opined that the age of P.W.2 is 9 years and also examined the accused and opined that he is capable of performing sexual inter course or act of coitus and issued Exs.P11 and P12 to that effect. P.W.9 who took up investigation arrested the accused in the presence of P.W.7 and others. After due investigation police laid the charge sheet for the offence under Section 376(2)(f) IPC. 4. The accused pleaded not guilty and claimed for trial. 5. In order to establish the guilt of the appellants, prosecution examined 11 witnesses, proved 11 documents Exs.P1 to P12 and exhibited M.Os.1 to 5. 6. P.Ws.1 to 4 initially supported the case of the prosecution but when they were recalled and cross-examined by the defense counsel a month after initial examination made volte face and totally resiled from their earlier version. Similarly, P.W.8 was declared hostile and P.W.9, who was signatory to the observation report, also declared hostile and not supported the case of the prosecution. 7. After completion of the trial, the learned Sessions Judge accepted the initial testimony of P.Ws.1 to 5 as trustworthy particularly, the evidence of P.W.2 is clear that accused committed the offence under Section 376(2)(f) IPC and based upon the FSL report that item No.7-M.0.5 of the accused shows that semen is detected and found guilt of the offence and accordingly convicted and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default to suffer simple imprisonment for three years. Questioning the correctness of the decision rendered by the Sessions Judge the present appeal has been filed. 8. Sri C.Padmanabha Reddy, learned senior counsel appearing for the appellant submits that medical evidence of the doctor-P.W.6 shows that there is no sexual intercourse. Therefore, convicting the appellant for the offence solely basing upon the initial evidence of P.Ws.1 to 4 cannot be sustainable. For the said proposition he relied SAVIR SINGH v, STAE OF PUNJAB(1). Further he contends if the evidence of P.W.2 is accepted, the same has not been Corroborated with the medical evidence of P.W.6—doctor. Therefore, convicting the appellant for the offence solely basing upon the initial evidence of P.Ws.1 to 4 cannot be sustainable. For the said proposition he relied SAVIR SINGH v, STAE OF PUNJAB(1). Further he contends if the evidence of P.W.2 is accepted, the same has not been Corroborated with the medical evidence of P.W.6—doctor. In view of the same, accused is entitled to acquittal. In support of the same, he placed reliance on the judgment of the Supreme Court in MADAN LAL v. STATE OF JAMMU & KASHMIR(2). 9. In response to the submissions, referred to above, learned Additional Public Prosecutor submitted that the trial court analyzed the evidence in great detail and found that the evidence of P.Ws.1 to 4 truthful and resciling from the earlier stand after one month of their initial examination cannot be taken into consideration. The evidence of P.W.11 supports the case of the prosecution and rightly convicted the accused. For the proposition that the evidence of hostile evidence can be accepted he placed reliance on P.SATYANARAYANA v. STATE OF A.P.(3) and R.PRAKASH v. STATE OF KARNATAKA(4). 10. In the light of the submissions, as referred above, the point that arises for consideration in this appeal is: “Whether the prosecution is able to establish the guilt of the accused beyond reasonable doubt for the offence with which the appellants stood convicted and sentenced by the trial court and whether the judgment under appeal is sustainable in law.” 11. P.W.1, the sister in law of the victim girl-Shaik Mastanbi stated that the victim was residing with them; her husband was admitted in the hospital for treatment and she used go to the hospital for giving food. On one day at about 1.30 P.M. on her return from the hospital, she found the doors closed, she knocked the front door and again went near the back side door and knocked it. Then the accused who is the same villager came out of the house and ran away. She went inside the house and asked P.W.2 what happened. Then P.W.2 told her that the accused came to the house and asked glass of water, when she went inside to bring the water, he closed the door, caught hold of her and made her to fell down. She went inside the house and asked P.W.2 what happened. Then P.W.2 told her that the accused came to the house and asked glass of water, when she went inside to bring the water, he closed the door, caught hold of her and made her to fell down. She further told that the accused removed her drawer, lifter her lunga and he also removed his dress and raped her at her urinal place and she was having pain. Then she lifted P.W.’s lunga and found blood coming out from her private parts; asked her to take batch; washed her clothes and dried them. Since P. W.2 is unmarried girl, she thought it is not proper to tell the neighbours. When she went to the house of the accused for enquiring about the same, the doors were locked. On the next day she informed the incident to her husband and mother in law; her husband told to inform his brother; then she informed to her brother in lawP.W.3, who came on next day and lodged a complaint. In the cross-examination she reported nil. Later she was re-called and cross-examined. Then, she has given go-bye to the earlier version and stated that she do not know the accused, P.W.2 has not stated about alleged rape and what she stated in the chiefexamination is not correct. 12. P.W.2, the victim girl stated that when P.W.1 went to the hospital to give food; on 05-06-2002 at about 1 P.M. the accused came and asked her to give water. When she went inside the house to bring water, accused entered into the house, closed the doors, made her to lie down, removed her underwear and lunga, he also removed his underwear and lie on her, put his pennies into her private part and pushed inside. She felt pain. Meanwhile, P.W.1 came and knocked the door, then he got out and ran away. P.W.1 asked her what happened. She narrated the whole story. Then P.W.1 washed her clothes and dried them. She further stated that P.W.1 and herself went to the house of the accused; his second brother-P.W.3 came on the next day; she informed him about the incident; he beat the accused and later lodged the report. In the cross-examination she accepted that she did not go to the house of the accused. She further stated that P.W.1 and herself went to the house of the accused; his second brother-P.W.3 came on the next day; she informed him about the incident; he beat the accused and later lodged the report. In the cross-examination she accepted that she did not go to the house of the accused. She denied the suggestion that the accused has not pushed her down and admitted that the police told her the incident on that day and also admitted that the father of the accused and his brother got disputes; when they went to the house of the deceased, his mother was present and they told her about the incident. When she was recalled and examined after one month, she resiled from the earlier statement. 13. P.W.3, the brother of the victim girl-P.W.2 stated that P.W.1 telephoned to him and informed that her sister- P.W.2 was raped. Then, he went to the house of the accused and beat him and thereafter, they went to the police station and gave report. In the cross-examination he stated that P.Ws.1, 2 and himself went to the police station but denied that there are disputes between himself and father of the accused and also between the father of the accused and his brother-P.W.5. He denied the suggestion that a settlement was made in the police station. He resiled from the earlier statement when he was recalled for further examination. 14. P.W.4, the neighbouror stated that he saw the accused coming from the back door of P.W.1’s house and running away, but in the cross-examination he resiled from the earlier statement. 15. P.W.6, the doctor who examined P.W.2 speaks that she found no external injuries and external genitalia normal. Based on chemical examination and RFSL report she opined that there is no evidence to suggest sexual intercourse, as semen and spermatozoa are not detected in the specimens collected and accordingly issued Ex.P2 certificate. 16. P.W.7 speaks about arrest of the accused. He signed on the panchanama of scene of offence and seizure panchanama of the clothes of the victim girl covered under Ex.P4. When he was recalled, he resiled from what he stated earlier. 17. 16. P.W.7 speaks about arrest of the accused. He signed on the panchanama of scene of offence and seizure panchanama of the clothes of the victim girl covered under Ex.P4. When he was recalled, he resiled from what he stated earlier. 17. P.W.8, the mother of the deceased who has interest in the welfare of the victim child stated that she do not know anything about the case; no harm has taken to her daughter recently; she was not examined by the police and not supported the case of the prosecution. Hence, she declared hostile. 18. P.W.9, the Sub-Inspector of Police, who took up investigation, recorded the statements of P.Ws1 to 3 and drafted Mahazar. The complainant produced the clothes of P.W.2-M.O.1 and 2 and thereafter examined P.Ws.4, 5, 8 and recorded their statements. He arrested the accused, seized his clothes-M.Os.3 to 5 and sent him for potency test. 19. P.W.10, who signed the observation report, declared hostile and nothing was elicited from the cross-examination. 20. P.W.11, Professor, Forensic Medicine, Guntur Medical College, Guntur stated that on receipt of requisition from the police he examined the victim girl-P.W.2 and basing on physical, mental, dental and radiological examinations he gave his opinion that P.W.2 is 9 years age and accordingly he issued Ex.P11. He also examined the accused and gave his opinion that nothing to suggest that he is incapable of performing sexual intercourse. In the cross-examination he stated that the accused is a potent and he cannot say whether the accused participated any sexual intercourse with any lady. 21. Ex. P3-FSL report shows that on item Nos.1 to 7 blood is not detected but semen is detected only on item N0.7 i.e. wheat coloured cut drawer-M.O.5 alleged to be the accused which is seized after four days of the incident. 22. In SATVIR SINGH’S case ( 1 supra) it was held as under: “If any person commits suicide, whoever abets the commission of such such suicide, shall be punished with imprisonment of either ‘description for a term which may extent to ten years, and shall also be liable to fine. It is a unique legal phenomenon in the Indian Penal Code that the only act, the attempt of which alone will become an offence. It is a unique legal phenomenon in the Indian Penal Code that the only act, the attempt of which alone will become an offence. The person who attempts to commit suicide is guilty of the offence under Section 309, IPC whereas the person who committed suicide cannot be reached at all. Section 306 renders the person who abets the commission of suicide punishable for which the condition precedent is that suicide should necessarily have been committed. It is possible to abet the commission of suicide. But nobody would abet a mere attempt to commit suicide. It would be preposterous if law could afford to penalize an abetment to the offence of mere attempt to commit suicide.” 23. In the Madanlal‘s case (2 supra) it was held that the trustworthy evidence of the prosecutrix depends upon the evidence let in and the statement made. The statement of the mother of the prosecutrix to the effect that the prosecutrix narrated the entire episode immediately when she arrived at home can also be held to be a corroborative piece of evidence apart from the story of the prosecutrix. The salwar of the prosecutrix was seized and had been sent to the Chemical Examiner for chemical analysis and the Scientific Officer, FSL, who reported that chemical and microscopical tests revealed the presence of semen/human spermatozoa on the said salwar. On which the High Court relied and convicted the accused. 24. In P.Satyanarayana’s case (3 supra) it was held that when the eyewitnesses supported the prosecution case in chief examination and on the adjourned date if they resile from the earlier version recorded, the earlier version of the hostile witnesses recorded in one sitting which is consistent with the medical evidence and other evidence and other evidence can be accepted. 25. Similarly, in the case of R.Prakash (4 supra) the Supreme Court held that even though witnesses turned hostile, their evidence does not get wiped out in toto, as the evidence of such witnesses does not get washed off. 26. In BHARWADA BHOGINBHAI HIRJIBHAI V. STATE OF GUJARAT(5) the Supreme Court held as under: “In view of these factors the victims and their relatives are not too keen to bring the culprit to books. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self-inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eyewitness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the courts in the western world (obeisance to which has perhaps become a habit presumably on account of the colonial hangover). We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the “probabilities factor” does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification: Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation. Or when the “probabilities factor” is found to be out of tune.” 27. In BISHNUDAYAL V. STATE OF BIHAR(6) the Supreme Court accepted the testimony of victim with regard to factum of rape corroborated by the medical evidence and also circumstances of recovery by the police from the house of the accused/appellant. 28. Or when the “probabilities factor” is found to be out of tune.” 27. In BISHNUDAYAL V. STATE OF BIHAR(6) the Supreme Court accepted the testimony of victim with regard to factum of rape corroborated by the medical evidence and also circumstances of recovery by the police from the house of the accused/appellant. 28. In view of law as aforesaid and in view of the fact that all the material witnesses who have resiled from the earlier statement when they were subjected to cross-examination after one month, we have to carefully examine the testimony of witnesses whether the prosecution is able to bring home the guilt of the accused, having regard to the fact that victim girl is of tender age, the possibility of wrongly involving the appellant cannot be ruled out and this possibility is strengthened by prior enmity between the families of victim and accused as admitted by the witnesses. 29. P.W.1 stated that P.W.2 informed her that the accused closed the door and committed rape; when she found blood coming out from the private parts of P.W.2 she asked her to take bath, washed her clothes and dried them. Since P.W.2 has to marry, she though it is not proper to tell to the neighbours. On the next day she informed the incident to her husband and mother-in-law-P.W.5 and also informed to her brother-in-law-P.W.3, who came on the next day. She also stated that when she went to the house of the accused for enquiring, the doors were closed. P.W.2 in chief examination stated that the accused was not there when they went to their house; on the same day when she was cross-examined she stated that she did not go to the house of the accused; she did not give water to the accused but accused came inside and police told her the incident today. She admitted that when they went to the house of the accused, her mother was present and told her about the incident; and his second brother-P.W.3 beat the accused and P.W.3 also corroborated the same. The arrest of the accused on 09-06-2002 by the police has not been supported by P.W.10, who declared hostile. She admitted that when they went to the house of the accused, her mother was present and told her about the incident; and his second brother-P.W.3 beat the accused and P.W.3 also corroborated the same. The arrest of the accused on 09-06-2002 by the police has not been supported by P.W.10, who declared hostile. The doctor-P.W.6 who examined the victim girl (P.W.2) found that she was not subjected to rape; no external injuries are found and no semen or spermatozoa is detected in the specimens collected and FSL report do not support the prosecution namely, that blood is not dected on item Nos.1 to 7 clearly shows that there was no commission of rape. The victim girl also admitted in the cross- examination that police told her the incident on the date of examination, which clearly discloses that a a case is foisted against the accused. 30. The reasoning adopted by the lower court that P.W.2 in her examination narrated the manner in which the incident happened to P.W.1 when she returned to the house, and P.W.1 asked P.W.2 to give up her dress and washed out the same and FS.L report shows that semen is detected on item No.7 i.e. M.0.5-cut drawer of the accused on which it goes to show that the he committed rape on P.W.2, in our view, seems to be fallacious. 31. The learned Sessions Judge is unmindful of the incident which has taken place on 05-06-2002 about 1.30 P.M. As per the evidence of P.W.9, the accused was arrested on 0906-2002 at 3 P.M. and seized his clothes-M.Os.3 to 5 i.e. after four days of the incident. When P.W.1 categorically stated that she saw blood is coming out from the private parts of P.W.2, but no blood is detected on M.0.5 except spermatozoa. The FSL report also silent about the spermatozoa, which was of recent ejection or four days old. Merely because the accused is capable of performing sexual intercourse and semen is detected on his drawer cannot be a mitigating factor to prove the guilt of the accused. Ex.P2 certificate issued by doctor-P.W.6 clearly discloses that there is no external injuries and external Genitalia normal. Hymen is intact. As ready observed, the mother of the victim in the initial examination has not supported the case of the prosecution which itself probablises that the accused has been falsely implicated due to family disputes. Ex.P2 certificate issued by doctor-P.W.6 clearly discloses that there is no external injuries and external Genitalia normal. Hymen is intact. As ready observed, the mother of the victim in the initial examination has not supported the case of the prosecution which itself probablises that the accused has been falsely implicated due to family disputes. Since the prosecution miserably failed to establish that P.W.2 was subjected to rape and the medical evidence do not support the said evidence, it is unsafe to convict the accused solely basing upon uncorroborated testimony of P.Ws.1 and 2 and he is entitled to acquittal. 32. In the result, appeal is allowed. The conviction and sentence awarded by the lower court against the accused for the offence under Section 376(2)(f) IPC is set aside. He shall be set at liberty forthwith, if he is not required in any other crime. --X—