JUDGMENT:- By way of present appeal, the appellant challenges the judgment and order dated 8th August, 2007 in Sessions Trial No.157/2006 thereby convicting him for the offence punishable under Sec.376(2)(f) of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for ten years and to pay fine of Rs.l,000/- and in default to suffer simple imprisonment for two months. 2. The prosecution case in brief is as under; That the prosecutrix aged nine years was residing at Indiranagar Lasalgaon with her step mother. That on 29th June, 2006 the step mother of the prosecutrix told her that she would not lookafter her and as such she came to Ahemadnagar Railway Station from Lasalgaon. She halted at platform of Railway Station Ahemadnagar in the night. It is the prosecution case that on the morning of 30th June, 2006 she was awaken from sleep at Railway Station Ahemadnagar. Thereafter on that day at about 02-00 p.m. when she came near flyover bridge, one person i.e. accused met her. It is further case of the prosecution that the accused told her to come to his house and took her towards Babool tree situated near stream and thereafter he had removed her clothes. The accused pressed her breast due to which she started shouting. The accused thereafter beat her. It is alleged that thereafter the accused inserted his penis in the vagina of the prosecutrix due to which blood started oozing. It is the prosecution case that thereafter she started running away and the accused was running behind. It is further the case that some persons cau, ht hold the prosecutrix and also caught hold the accused by chasing him. They made a phone call to Child line. One Anil Gawade came there. Said Anil Gawade asked the name of prosecutrix and of accused. The accused disclosed his name as Bhima Haribhau Shelar. The said Anil Gawade produced the prosecutrix and the accused before Smt. Suvarna Kulkarni, the Superintendent of Child Welfare Department. The said Superintendent made enquiry with the prosecutrix and the matter was reported to the police. The police recorded complaint of the prosecutrix in writing. 3. After completion of investigation, the charge was framed, the accused pleaded not guilty and claimed to be tried. The said Superintendent made enquiry with the prosecutrix and the matter was reported to the police. The police recorded complaint of the prosecutrix in writing. 3. After completion of investigation, the charge was framed, the accused pleaded not guilty and claimed to be tried. It was the defence of the accused that he has been falsely involved in the case at the instance of Anil Gawade and other employees of Child Line. After the conclusion of the trial, the learned trial Court convicted the accused and sentenced him as aforesaid. Being aggrieved thereby, the present appeal. 4. Heard Shri. Badakh on behalf of appellant. Shri. Badakh submits that the learned trial court grossly erred in convicting the appellant. It is submitted that the prosecution is based only on the basis of evidence of the prosecutrix. It is submitted that even from the evidence of the prosecutrix it could be seen that the necessary precautions for recording of the evidence of the child witness was not taken. He further submits that apart from that, from the evidence of the prosecutrix it could be seen that she was tutored by others and therefore the conviction, solely on the basis of the evidence of prosecutrix, is not sustainable in law. It is further submitted that in so far as medical evidence is concerned. the medical evidence is wholly contradictory to the prosecution version and as such, the learned trial court ought to have acquitted the accused. 5. Shri. Shinde learned APP on behalf of the respondent on the contrary submits that the learned trial Court has rightly convicted the accused. He submits that the conviction can be based upon sole testimony of the prosecutrix. It is further submitted that in the present case, the version of the prosecutrix is wholly corroborated by the evidence of PW-3 Samir and PW-2 Umesh. He further submits that no interference is warranted with the impugned judgment. 6. With the assistance of the learned counsel for the accused and the learned APP I have perused the material on record. The prosecutrix at the time of recording of her evidence, according to the prosecution, was 11 years old. The learned trial court, prior to recording the evidence has observed that the witness is having understanding to some extent, that she knows the sanctity of oath. hence oath is administered to the witness. 7. The prosecutrix at the time of recording of her evidence, according to the prosecution, was 11 years old. The learned trial court, prior to recording the evidence has observed that the witness is having understanding to some extent, that she knows the sanctity of oath. hence oath is administered to the witness. 7. The Division Bench of this Court in the case of State of Maharashtra Vs. Gajanan Baburao Phakatkar reported in 2005 ALL MR (Cri) 306 after considering the law laid on the subject has observed thus; "In the light of the position of law which emerges from the aforesaid decisions, the evidence of the minor witness Chetan will have to be appreciated. In the evidence of PW -2 Pandurang he has stated that both the minor sons of his daughter were brought to his house on 8th May. 1987. From that day till the date on which statement of Chetan was recorded i.e., on 14th May, 1987, he was residing in the house of the father of the deceased. Moreover father of the deceased accompanied the child witness when his statement was recorded by the police. A child witness can be easily tutored and therefore, delay in recording of statement of such child witness is very material. The , English deposition of the child witness and the Marathi version thereof do not show that any preliminary questions were asked by the learned Sessions Judge to the child witness for ascertaining whether the witness understands the implication of administering oath. No questions are asked even to ascertain whether the witness was in a position to understand the questions and answer the same. Without taking the said precautions, oath was administered to the child witness. As stated by the Supreme Court in the case of Rameshwar (supra) satisfaction of the Judge that the child understands the duty of speaking truth is very important and such satisfaction can be gathered from the circumstances when there is no formal certificate recorded by the learned judge. In the facts of the case before us, there is nothing on record to indicate that the learned judge satisfied himself about the capacity of the child witness to understand the nature of the questions. In the facts of the case before us, there is nothing on record to indicate that the learned judge satisfied himself about the capacity of the child witness to understand the nature of the questions. There is nothing on record to show that the learned Sessions Judge before proceeding to record the evidence formed an opinion that the child was in a position to understand the duty of speaking truth. We are of the opinion that it is desirable that the learned Magistrates and the learned Sessions Judges should normally follow the procedure which is laid down in the judgment of the Division Bench of the Court in the case of State Vs. Sharanappa." 8. From the evidence of PW-5 Mohali it can clearly be seen that prior to administering oath, the learned Judge has not put any preliminary questions for ascertaining whether she understands the implication of administering oath. It can further be seen that no question were put for ascertaining as to whether the witness was in a position to understand the question and answer the same. It can thus be seen that there is nothing on record to show that the learned Sessions Judge before proceeding to record the evidence of the prosecutrix had formed an opinion that the child was in a position of understanding the questions and the duty of speaking the truth. 9. The Division Bench of this Court in the Case of State Vs. Sharanappa reported in 79 Born.L.R. 132 has further observed that while recording the evidence of a child witness, it should invariably be in the form of questions and answers. From the evidence of PW -5 it can clearly be seen that the said evidence is also not in the form of questions and answers. 10. Not only this, but from the cross-examination of the prosecutrix, it is clear that she has admitted in her evidence that she was tutored to give evidence about rape. She states that the police uncle gave her Rs.10 and stated her to deposed before the Court about rape on her. She has further stated that the Madam in the Remand Home has directed her how to depose before the Court. She further states that the Madam had told her to state the facts before the Court that there was rape upon her under Babool tree. She has further stated that the Madam in the Remand Home has directed her how to depose before the Court. She further states that the Madam had told her to state the facts before the Court that there was rape upon her under Babool tree. She further admits that she had stated about the rape before the police at the instance of Kulkarni Madam. She further admits that Kulkarni madam and said uncle were discussing about the incident. Kulkarni madam had obtained her thumb impression on her statement which was prepared by her. She has further admitted that she was demanding money from the accused on that day and the accused had stated to her that he would take her towards the police and therefore she got frightened and started running. She has further admitted that three four persons caught hold of her and they called the uncle there. The said uncle did not talk with her and he brought her in the Remand home. 11. It could thus clearly be seen that in her cross-examination the prosecutrix has clearly admitted that her evidence was tutored as per the say of Kulkarni Madam. In this set of circumstances, I find that there could not have been a conviction on the basis of sole testimony of prosecutrix without there being any corroboration. 12. In the present case, the medical evidence is totally against the prosecution case. Though according to the prosecutrix she had received injury on her person i.e., on back, waist and legs and that the accused had pressed her breast due to which she received scratches and there was blood, the same is totally contradicted by medical evidence. PW -6 Dr. Popat is the first doctor who examined the prosecutrix as well as the accused. He states that the history was given by the prosecutrix regarding beating by that person. However, in his evidence he has clearly admitted that there were no external injuries on the person of the prosecutrix so also on the person of the accused as well as on public region or on penis of the accused. He states that the vagina was admitting only one finger. That in case of nine years girl there must be injury on her private part i.e., on private part in case of male and female. He states that the vagina was admitting only one finger. That in case of nine years girl there must be injury on her private part i.e., on private part in case of male and female. He further states that there must be tearing of vagina and heavy bleeding from the vagina. He further states that there must be damage to mucus membrane and private part of such girl in rape cases. He further states that there must be injury to her vulva and hymen may be torn and there should be redness on the walls of vagina of the victim if the forcible intercourse is committed with her. He clearly admits that "I have not found the above symptoms in this case". 13. The evidence of PW -10 Dr. Sachin Hodshil is also to the same effect. He has stated that he did not find any injury on the person of the prosecutrix, there was no injury to vulva, vagina and hymen. He also admits in his cross-examination that there was history of beating by a person. Iris further admitted by him in his evidence that "After the gap of one day. the torn hymen and libia majora and libia minor may be noticed by the Doctor. I have not found those injuries caused to the said girl". 14. It can thus be seen in so far as medical evidence is concerned, it totally shatters the prosecution case. In so far as the evidence ofPW-2 Umesh and PW-3 Samir is concerned, the same is of no assistance to the prosecution case in as much as what they state is only narration of what had been told to them by the college students who are alleged to have caught the prosecutrix and the accused. The prosecution has not examined the said college students alleged to have caught the prosecutrix and the accused. In that view of the matter, their evidence would be of no assistance to the prosecution case. particularly when the prosecutrix in her evidence itself had admitted that her evidence was tutored one and that the version given by her is totally contrary to the medical evidence. 15. In that view of the matter I find that the prosecution has failed to prove the case beyond reasonable doubt. The order of conviction and sentence, therefore is not sustainable in law. 16. The appeal is allowed. 15. In that view of the matter I find that the prosecution has failed to prove the case beyond reasonable doubt. The order of conviction and sentence, therefore is not sustainable in law. 16. The appeal is allowed. The order of conviction and sentence is set aside. The accused is directed to be set at liberty forthwith if not required in any other case. Appeal allowed.