ORAL JUDGMENT:- The Appellant herein was tried for offence under section 376(2)(t) and 376(2)(t) read with section 511 of Indian Penal Code, in section 235(2) of Criminal Procedure Code for the said offence to undergo Rigorous Imprisonment for a period of five years, a fine of Rs. 1000-00 and default sentence of one month. The appellant is, therefore, before this Court in this appeal. 2. The 'appellant is charged for committing rape on Ku. Aachal, seven years' old girl. Charge also consists of an allegation of attempt to commit rape. Case of prosecution 3. PW 2-Sau. Mamta, mother of the victim, lodged an oral report to Police. Relevant text of the oral report given by her reads as follows:- "I did not see my elder daughter Ku. Anchal playing in the courtyard, and saw my younger daughter Saloni, only who was playing alone in the courtyard. Hence gave calls to daughter Anchal from the courtyard. saw her coming out from the house of Prakash Kondalkar aged about 22 years, residing near my house, holding her skirt in her hand as it had become wet. On being asked by me, my elder daughter Ku. Anchal told me that Prakash uncle residing in our neighbourhood, called her at (his) house, made her remove her Chaddi (a sort of underwear), lay her on the ground, unchained his pant and lay on her person. Hence on getting frightened, inspected her skirt and clothes on her person and say white sticky stains on her skirt and clothes. Hence showed the said stains on her clothes to Sau. Kanta Kokate, Sau. Chhaya Charade and tailor woman whose name do not know, residing in the neighbourhood. They also opined that rape was committed on (my) daughter. Hence on getting frightened, came to the police station with daughter Ku. Anchal, aged 7 years and lodged a report against Prakash Kondalkar residing in the neighbourhood. Necessary action be taken on my report." (quoted from page nos. 33 and 34 of the paper-book of Criminal Appeal). 4. The alleged incident is said to have occurred at around 11.00 O'clock in the morning. Oral report seems to have been recorded at 1635 hours, though report is received at about 1400 hours. The prosecutrix was referred for medical examination to Dr. Aparna Mohan Bhaimare on the same day, who conducted the medical examination. 4. The alleged incident is said to have occurred at around 11.00 O'clock in the morning. Oral report seems to have been recorded at 1635 hours, though report is received at about 1400 hours. The prosecutrix was referred for medical examination to Dr. Aparna Mohan Bhaimare on the same day, who conducted the medical examination. The accused was also referred for medical examination, which was conducted by PW 3-Dr. Ramesh Jamao Kherde on 31st March, 2006. 5. The prosecution has examined in all five witnesses. PW.1 is a Panch witness. PW 2 is the mother of victim, PWs 3 and 4 are medical witnesses and PW 5 is the Police Officer, who has recorded First Information Report and conducted the investigation. The defence and conclusions in trial. 6. It was argued on behalf of the accused in the Trial Court that failure to examine the prosecutrix and failure to prove reports of Chemical Analyzer is fatal to the prosecution, and also that Medical Report does not support the story of rape. 7. Upon appreciation of evidence, the learned Trial Judge held that considering the ratio laid down by this Court in case of Sanju @ San jay Patangrao Jagtap vs. State of Maharashtra, 2004 All MR (Cri) 344, when the victim is a child of tender age, the prosecution case does not get weakened on account of failure to examine victim who happens to be a child of tender age. 8. On facts, Court found that:- (a) PW 2 says that she has seen that the victim came out of the house of the accused holding her skirt in hand having stains of sticky fluid on it, as it had become wet, and on enquiry told her that Prakash, accused, made her to remove her underwear, lay her on the ground, unchained his pant and lay on her person. (b) She (PW 2) has shown the nicker to neighbours, and they opined it to be a case of rape. (c) When accosted by PW 2, accused denied the imputation. (d) The prosecutrix is of a tender age, i.e., seven years. (d) Discovery of semen on the clothe of the victim and matching of blood group of semen with the blood group of the accused which is of 0' group is proved. (e) Rape is not proved, but attempt is proved. 9. (d) The prosecutrix is of a tender age, i.e., seven years. (d) Discovery of semen on the clothe of the victim and matching of blood group of semen with the blood group of the accused which is of 0' group is proved. (e) Rape is not proved, but attempt is proved. 9. Relying on the case of Sanju @ Sanjay Jagtap (supra), the learned Sessions Judge held the charge of section 376(2)(f) was not proved, but attempt was proved and, therefore, ordered conviction under section 376(2)(f) read with section 511 of Indian Penal Code. Contentions in appeal 10. Heard learned Advocate (appointed) Mr. Shriniwas Deshpande for the appellant and learned Additional Public Prosecutor Mr. V.A. Thakre for the respondent-State. 11. Learned Advocate for the appellant tried to distinguish the case on facts from that of Sanju @ Sanjay Jagtap (cited supra). According to him: (a) When police had recorded the statement of prosecutrix, the prosecution has not explained as to why the prosecutrix has not been brought before the Court, or her statement recorded by police is not brought before the Court. (b) Report of ossification test has not been brought on record without explaining this failure. (c) Thus, the age and status of prosecutrix as of tender age is not proved. (d) Even in the ossification test, the estimate about the age of the subject would be given as estimate with plus minus one to three years. (e) In absence of production of victim before the Court, it would be unsafe to permit an inference that she is of tender age. (f) In absence of strict proof of age of victim to be below 12 years, section 376(2)(f) of Indian Penal Code is not attracted. (g) The time lag between the alleged incident and the report to Police Station is not explained, when, according to PW 2, it was suggested by her neighbours or acquaintances that it was a case of rape. (g) The time lag between the alleged incident and the report to Police Station is not explained, when, according to PW 2, it was suggested by her neighbours or acquaintances that it was a case of rape. (h) According to version of PW 2, her mother, when prosecutrix herself said that the accused had opened the zip of pant, laid the victim on the ground and lay on her person, as to how without a complaint by the victim of some more overt acts of any kind by the accused she could have described rape or attempt when she told PW 2 that she got immediately escaped and came out, how could the PW 2 could not have deposed supporting s a positive act of rape, and in the result, her version becomes unbelievable. (i) There are material improvements in the oral evidence of PW 2. (j) It is not explained that when the Panchanama of the house of accused and seizure of clothes etc., was done on the same day, as to why the accused was referred for medical examination after 16 days, i.e., on 31st March, 2006. (k) The report of Chemical Analyzer was neither admitted nor proved. Therefore, finding about blood group of semen and its matching with blood group of accused is without evidence. (l) On facts, the prosecutrix, according to prosecution, is seven years' old and not five years as in Sanjay's case. (m) Thus, the accused was not connected with crime. 12. Learned Advocate Mr. Shriniwas Deshpande has relied on following judgments:- (a) Rameshwar VS. State of Haryana, 1981 Cri.L.J. 786, (b) Ankariya VS. State of M.P., 1991 Cri.L.J. 751, and (c) State vs. Musa and another, 1991 Cri.L.J. 2168. While effort of the defence is to seek acquittal, he alternatively urges for conviction under lesser offence and lesser sentence, and even for sentence equal to one already undergone considering young age and chances of improvement. 13. On the other hand, learned Additional Public Prosecutor Mr. Thakre very fervently relied upon the case of Sanju @ San jay Jagtap (supra), and supported the conviction. Questions/or consideration 14. Points, which arise for consideration, are :- (a) Can the prosecution prove the charge of rape without examining the prosecutrix on the plea that she is of tender age? (b) Whether on facts, the prosecution has become successful connecting the accused with the alleged attempt to rape? Questions/or consideration 14. Points, which arise for consideration, are :- (a) Can the prosecution prove the charge of rape without examining the prosecutrix on the plea that she is of tender age? (b) Whether on facts, the prosecution has become successful connecting the accused with the alleged attempt to rape? Discussion and Reasons 15. In the process of investigation, undoubtedly, the investigation has a full control on the matter as to the mode of evidence to be gathered, the procedure and order of recording of statements etc. 16. The Investigating Officer is entitled to employ such skills and equipments as may be needed and available. 17. In the present case, the Investigating Officer or the prosecution has decided on point of the state of capacity of the prosecutrix to depose, and has decided that prosecutrix should not be examined. 18. The prosecution did not exert and/or care to bring relevant and material facts thereto on record. 19. The prosecution did not bring the prosecutrix before the Judge to enable the Judge to form opinion and then let the Judge decide as to whether the girl being of a tender age and her capability to depose on oath or otherwise that she should not be, or should be examined. 20. The prosecution has chosen to withhold this evidence and naturally the witness as well from the Court, apparently by taking shelter of Sanjay Jagtap's case. It appears that the prosecution has, therefore, decided not to examine the prosecutrix. 21. Ordinarily, once the investigation is complete and the charge-sheet is filed, it is a province of judicial adjudication as to the decision as to whether any witness brought before the Court is capable to depose, whether such witness should be administered oath being a child witness, or should be examined, whether the examination would be worthy or of no use as evidence when prosecution tenders such witness, are all matters to be decided by the Judge. 22. In present case, facts, as are proved by witnesses of different categories are:- (a) Facts proved by PW 2 are namely:- (i) She saw the prosecutrix coming out of the house of the accused with the stains of sticky fluid on her clothes. (ii) Prosecutrix narrated to her the incident. (iii) When accosted, accused has denied the allegation. 22. In present case, facts, as are proved by witnesses of different categories are:- (a) Facts proved by PW 2 are namely:- (i) She saw the prosecutrix coming out of the house of the accused with the stains of sticky fluid on her clothes. (ii) Prosecutrix narrated to her the incident. (iii) When accosted, accused has denied the allegation. (b) Facts proved by other witnesses are namely:- (i) Fact of rape is not proved from medical evidence. (ii) Even evidence of any marks of force, nails, abrasion are not seen on the person of the prosecutrix. (iii) Nothing is found on the person of accused to connect him to the charge of rape or attempt. 23. These two solitary circumstances proved by PW 2 could have had a very strong corroborative value:- (a) Had the prosecutrix been examined: (b) Had the Court recorded on seeing the prosecutrix that she is not in a position to depose due to tenderness of age, or due to any other evidence, and (c) Had rape or attempt been proved by medical or other evidence. 24. Whether a child is of a tender age, or can understand or otherwise, is a matter to be decided on facts of each case upon opinion of the Judge as to intellectual capacity, tenor and demeanor, personality etc. of such witness before the Court. 25. On appearance of such witness, Court has to decide as to whether to allow examination of such witness on oath or otherwise, or not. For this purpose, recording a judicial finding that due to the capacities and faculties etc., of the witness, the witness is worthy or unworthy of deposition, is necessary. This judicial function of the Court cannot and ought never be relinquished or delegated to the prosecution, as it shall amount to delegation of a judicial function. 26. This Court is conscious to the fact that in a given case it may be impossible to examine the prosecutrix as in case of State of Karnataka vs. Mahabaleshwar Gourya Naik, 1992 Supp (3) see 179, the prosecutrix who had committed suicide, was naturally unavailable for examination. Aforesaid was a case of rape where attempt to rape was witnessed by one eyewitness and obviously enough, there was eye-witness sufficient to prove the fact of the acts of attempting to rape by the accused. 27. Aforesaid was a case of rape where attempt to rape was witnessed by one eyewitness and obviously enough, there was eye-witness sufficient to prove the fact of the acts of attempting to rape by the accused. 27. Mahabaleshwar Naik's case (supra) was, thus, a plain case of availability of eyewitness of attempt to rape and the victim being unavailable due to death. 28. If on facts, case could be of the nature as in Mahabaleshwar Naik's case (supra), or even otherwise for other peculiar facts of any case, the examination of prosecutrix being impossible, it was obvious that other evidence may be admissible. The witness, such as in case of Mahabaleshwar Naik, being an eye-witness or evidence of a different category of lesser weightage could be admitted in that eventuality. This, however, would be governed by facts of each case. 29. This Court has also perused the reported ruling of this Court (Coram: Vishnu Sahai and Mrs. R. P. Desai, JJ.) in case of State of Maharashtra vs. Suresh Bhimaji Thorat, 1997 Cri.L.J. 1192. In this case, the prosecutrix was five years of age. She gave entire account of incident, however, it came from her version that she does not know the name of the person who pushed her, resulting into injury on her private part and profuse bleeding. It is seen that she named the accused as a person who took her out of house by assuring to pay ten paise for sweets and committed rape on her. The parents' statements were also discarded, and Trial Court ordered acquittal. 30. This Court then found in Suresh Thorat's case (supra) that the statement of prosecutrix could have been believed but for her admission in the cross-examination that there was no light on the place of incident and she was not sure whether it was the respondent who had raped her. She was also not able to tell who was the boy who pushed her, and that at the instance of one Bhaskar, she had told that respondent has raped her. 31. This Court then observed in para 10 of the Judgment of Suresh Thorat (supra) that evidence of the parents is hearsay evidence and legally no reliance could be placed on it, and this became more significant when the Court had found the evidence of prosecutrix to be unlivable. 32. 31. This Court then observed in para 10 of the Judgment of Suresh Thorat (supra) that evidence of the parents is hearsay evidence and legally no reliance could be placed on it, and this became more significant when the Court had found the evidence of prosecutrix to be unlivable. 32. All that can be grasped from the judgment in case of State of Mah. vs. Suresh Bhimaji Thorat (supra) is that evidence of a minor child witness of five years was considered worthy, though it was disbelieved on merit and contents thereof. The Division Bench of this Court disbelieved the evidence of prosecutrix in view of her admission about darkness and her confusion about identity of accused. This Court did not find that due to her age, the witness was not able to depose. The tender age did not come in way of her examination. 33. Insofar as parents' evidence in case of Suresh Thorat (supra) is concerned, this Court has observed that it was hearsay. All that the parents could depose is that what was the immediate response of the victim, i.e., their evidence is a proof of fact of what a particular witness has told to them and nothing more. 34. It is, therefore, hard to get persuaded that a girl of tender age is unable to depose what she has suffered or undergone. There is no presumption in law supporting such preposition. 35. Worthiness of a child witness cannot be done away by attaching a label of tenderness of age by prosecution. 36. Seen from any angle, testimony of prosecutrix could not, as a matter of rule, be dispensed with on the ground of her being of tender age. 37. In the present case, however, nothing has come on record as to why and how the Court was led to believe that prosecutrix, who is allegedly of seven years' age and whose age is not proved to be below 12 years, was believed to be unable to come before the Court being of a tender age and the Court was persuaded to believe a fact of witness being of tender age. 38. 38. It is seen that Court was persuaded to believe what the prosecutrix has said which was certainly not the evidence of attempt to rape unlike in case of State of Karnataka vs. Mahabaleshwar G. Naik, where eyewitness had witnessed the accused sitting on the person of victim and attempting to commit rape. 39. In this background, the prosecution was deliberately made to stand with infirm foundation either for want of truth and substance in it, or for the reasons best known to the prosecution. 40. It would have been easy and convenient to rely upon the Judgment of this Court in case of Sanju alias San jay Jagtap vs. State of Mah. (supra), and confirm the conviction, but for the differentiating facts, namely :- (1) The police has recorded statement of prosecutrix, and did not take steps to bring her or bring any other material/evidence on record that she is of tender age and unable to testify. (2) Prosecution has not explained by bringing on record evidence to show/prove as to why on account of age of the prosecutrix, or otherwise such as physical or mental infirmity, she is not brought before the Court. (3) In absence of ossification test report being brought on record and proved, it would be unsafe to believe that the prosecutrix was of so extremely tender age, it would not be proper to bring her before the Court. (4) The circumstance that when the incident had occurred around 11•00 a.m., why is the police report lodged so late, i.e., at 1630 hours, or 1410 hours, has not been explained. (5) It is not explained as to why the accused was not punctually referred for medical examination. (6) There is a world of difference in level of understanding between girl of five years and girl of seven years and above which is the age of victim claimed by the prosecution. (7) In absence of admission, formal and due proof of factuality of blood group of semen allegedly found on nicker of prosecutrix and group of blood/semen of accused cannot be held as proved, and cannot be used against the accused as proved fact. (7) In absence of admission, formal and due proof of factuality of blood group of semen allegedly found on nicker of prosecutrix and group of blood/semen of accused cannot be held as proved, and cannot be used against the accused as proved fact. (8) In absence of proof of age by evidence such as certificate of date of birth or medical evidence, it would be unsafe to hold that the prosecutrix was either seven years of age, or even of any age below 12 years, and thereby attract section 376(2)(1). (9) For attracting section 376(2)(1), strict proof of age would be imperative nor just necessary. (10) The sum effect of what is emerging from evidence is that it creates a serious amount of doubt as to truthfulness of the statements contained in oral evidence of PW 2, as it seems that she is telling something apart from truth. (11) If the ratio emerging from the Judgment in case of San jay Jagtap is mechanically followed, it would generate a proposition that whenever there is a child victim, it need not come before the Court and statements of other witnesses, who depose hearsay, would be worthy of reliance, and this would prove to be disastrous in actual application thereof. 41. The result, therefore, has to be that the accused, who is tried for serious offence by relying on such fragile evidence, cannot be convicted. 42. Apart from the possibility urged by the accused-appellant, the fact of failure to prove mental status and worthiness of the prosecutrix and failure to examine her is sufficient to acquit the accused, since basing conviction on such evidence, in spite of availability of direct evidence, is utmost unsafe way. 43. In view of above discussion, to be precise, the points framed in para 14 are answered as follows :- Point No.1:- It would not be permissible to dispense with recording of evidence of a minor witness/victim on the ground of tender age without appearance of such witness before the Court and the Judge to form an opinion. Point No.2 :- On facts, the prosecution has failed to prove the charge of attempt to rape by the accused-appellant. 44. In the result, appeal succeeds and is allowed. Appeal allowed.