JUDGMENT : The learned Adhoc Additional Sessions Judge, Aurangabad in Sessions Case No. 152 of 2006, by order dated 16.8.2007 convicted the accused for the offence punishable under Sections 376(2)(f) read with Section 511 of IPC, directing him to undergo rigorous imprisonment of seven years and to pay a fine of Rs. 10,000/-, in default, to suffer R.I. for two years. The same is under challenge. 2) The accused/appellant stays with his family members nearby house of the complainant - Kavita. Victim aged 5 1/2 years is her daughter. Victim is friend of daughter of accused and they used to play together. 3) On 22.4.2006 the victim returned home complaining pains. She informed her mother, the accused called her on the earlier day under a ruse to give a chocolate, accused removed her nicker, then applied ghee to his private part, and rubbed his private part against her private part. The victim suffered severe pains and started yelling. Accused allowed her to leave. Smt. Kavita, the complainant noticed some swelling on the private part of her daughter. Consequently, the victim was examined by Dr. Jayshree Jadhav, who on noticing redness on private part of the victim, prescribed certain medicines. 4) The complainant learnt from her daughter - the victim, in the past, similar such incident has taken place, where the accused sexually tried to molest the victim. The matter was referred to police by lodging F.I.R. P.W.6, referred the victim to Govt. Hospital for medical examination, where, P.W.7 - Dr. Rupali examined her. Clothes of the victim and the accused were taken charge. Spot panchanama was drawn. The seized articles were sent to the office of Chemical Analyzer for analysis. Statement of the victim under section 161 Cr.P.C,. could not be recorded by the police officer. Consequently, he solicited services of social worker PW5 - Suhasini. She recorded such statement. Charge sheet came to be filed before the C.J.M. Aurangabad and the learned CJM committed the case to the court of Sessions. Charge was explained to the accused. The accused pleaded not guilty and claimed to be tried. could not be recorded by the police officer. Consequently, he solicited services of social worker PW5 - Suhasini. She recorded such statement. Charge sheet came to be filed before the C.J.M. Aurangabad and the learned CJM committed the case to the court of Sessions. Charge was explained to the accused. The accused pleaded not guilty and claimed to be tried. The defence of the accused, in his statement under Section 313 Cr.P.C., is that accused had illicit relations with complainant - Kavita and there was quarrel due to exposition of such illicit relations to wife of the accused and in such quarrel the accused played a docile role as against his wife, the complainant is embittered and he has been falsely implicated in this case. 5) In order to establish the case, the prosecution has examined PW1 - Poonam, who acted as panch for the panchanama. PW3 - victim at Exhibit-16; PW2 - complainant mother of the victim at Exh. 13; PW4 - Dr. Jayshree at Exh.18. PW7 Dr. Rupali, who gave her report at Exh.30. The victim’s father produced victim’s frock and nicker before police which was taken charge under panchanama, Exh.10. Spot panchanama is at Exh.19. The Investigating Officer PW6 Jagannath s/o Pandharinath Kinge, carried the investigation. 6) The C.A.report produced during the trial at Exh.39 to 41 are negative in nature as they could not detect any presence of semen or blood on the respective apparels. Consequently, the seizure panchanama of the victim’s apparels or the seizure of the apparels from the accused loses any significance and not to be further dissected. 7) There is no dispute between the parties about the identity and respective residence. PW3 states that during first incident, accused removed his nicker and her nicker, then rubbed his buttock against her buttock. The term ‘buttock’ has been explained by the victim in marathi as ‘Dhungan’ (an anus). However, the learned Judge treated the term ‘buttock’ as to mean private part or male organ. The second incident, which the learned Judge has referred, as indicated by PW3, relates to application of ghee by the accused on his private part and he rubbed his private part on the private part of the victim, resulting in sustaining pains to the victim and subsequently the victim narrated the events to her mother. The second incident, which the learned Judge has referred, as indicated by PW3, relates to application of ghee by the accused on his private part and he rubbed his private part on the private part of the victim, resulting in sustaining pains to the victim and subsequently the victim narrated the events to her mother. 8) There is no head and tail of the first incident as to when it has taken place. The second incident, as per F.I.R. and evidence of PW2 - Kavita, has taken place on 20.04.2006. The observations of the learned Judge that the inconsistency in exact date is also not material and does not go to the root of the matter to discredit the witness, in this context are based on surmises and conjectures. 9) After the first incident, PW 3 had not gone to the house of Accused because she was apprehending, the Accused would commit the same thing with her. In Para 3 she again reiterates : "At the time of first incident, I had pain and burning sensation on my private part and therefore I cried. I came to my house by running and told to my mother about the first incident. After the first incidence I had decided not to go to the house of the accused. I had not gone to the house of the accused on second occasion. It is true that, urinal part I used called as "Shu Chi Jaga" to buttock region as "Dhungan". " The evidence of mother (PW2) cannot be treated to be evidence of eyewitness to the incident. Whatever PW2 has stated is restricted to what she got from her daughter - the victim (PW3). However, to base conviction, reliance on the report (Exh.14), could not have been putforth beyond limits. Evidence of PW 2 - mother is discussed in paragraph 13 of judgment to base conviction. 10) PW5 - Suhasini is a social worker and the Investigating Officer (PW6) requested her on 5.5.2006 to record statement of the victim, which is recorded by her and marked as Exh.22. In a criminal prosecution, such statement under Section 161 of Cr.P.C., cannot be exhibited, as has been done by the learned Judge. After the incident dated 20th April, 2006, there was no plausible reason offered to record delayed statement of the victim on 5.5.2006, that too by PW5. In a criminal prosecution, such statement under Section 161 of Cr.P.C., cannot be exhibited, as has been done by the learned Judge. After the incident dated 20th April, 2006, there was no plausible reason offered to record delayed statement of the victim on 5.5.2006, that too by PW5. There is no scarcity of female police officer in the concerned police station, nor there was any injunction to take their services to get examination and statement under Section 161 Cr.P.C. from the victim. The exercise of putting in PW5 and getting the statement at Exh.22 recorded and proved is unwarranted, is an ordeal exercise and has resulted in a mayhem in the prosecution case. The learned Judge in paragraph 19 of his judgment, gave reference to Exhibit-22, having been proved by PW5 - Suhasini, to place reliance about the incident occurred with the victim. This is absolutely erroneous and illegal. Such statement below Exh.22 could not have been read as a document to rely. The user of statement is only to the extent of getting contradictions, omissions and to confront hostile witnesses. Such statements can not be read in evidence. 11) PW4 -Dr.Jayashree on victim’s examination issued certificate/prescription (Exh.15). This prescription does not indicate that there was history of sexual assault or redness of vulva and there was burning and irritation. There was no white discharge, tear or bleeding and hymen was intact. PW 4 - Dr. Jayashree has admitted that in case of forcible penetration, there could be wide spread damage to private parts. The next controversy created by prosecution is evidence of PW7 - Dr.Rupali, working as Resident Doctor in Government Hospital at Aurangabad, examined the victim on 23.4.2006. PW7 was vocal in saying that there was evidence of redness over labia majora and hymen was ruptured which disclose there was sexual intercourse. It was suggested that PW 7 Dr.Rupali was known to the sister of PW2 - Complainant as her sister is a nurse in the said Govt. Hospital. PW4 -Dr.Jayshree and PW7 - Dr.Rupali had to accept that in the case of forcible sexual intercourse, there should be wide spread damage to private parts of a minor girl like the victim in the present case. However, both the certificates referred above just indicate that there was redness on private part, which could occur because of constant itching and scratching. However, both the certificates referred above just indicate that there was redness on private part, which could occur because of constant itching and scratching. PW7 has gone to the extent of saying that hymen was ruptured and tears were old while PW4 - Dr. Jayshree says that there was no evidence of white discharge nor there was any tear to the hymen and it was not ruptured. Column No.6, requires "Examination of the evidence and violence on body " and reaction of PW7 was "No" however, she scored the same and added evidence of redness on labia majora. PW7 did not find any bruises, scratches lacerations, or swelling over monsubis and libia Minora. She did not mention in certificate that rupture of Hymen discloses sexual intercourse. Thus, obviously there is inconsistent evidence about rupture of hymen or damage to the private part of the victim, the two certificates Exh. 15 and Exh. 30 are contrary to each other. 12) The F.I.R. at Exh.14 refers that the victim rushed to her mother at 4.00 p.m. and consequently, PW2 - Kavita asked her as to what has happened and the victim disclosed the incident. However, during cross-examination, the complainant accepts that her daughter had not at all gone out of house from 1.00 p.m. Then she disclosed the incident at 4.00 p.m., dated 20.4.2006. The findings of the learned Judge that incident could have taken place either on 22.4.2006 or 20.4.2006 is obviously against the F.I.R. and version of PW 2 - mother. PW3 - victim had suffered the ignominy one month prior to the incident and she had decided not to visit the house of the accused. However, without any occasion and reason, she has gone to the house of the accused. This anomaly, is not resolved. 13) There was no evidence of the sexual assault. The evidence disclosed that there was an attempt as the accused slept over the victim and placed his private part on her private part or as the victim says the accused rubbed his private part (the anus) against her private part, due to which the victim suffered severe pains. 14) Section 511 of IPC contemplates that in every crime the first aspect is to establish intention to commit the offence. Second, preparation to commit it. Third, attempt to commit it. If at third stage the attempt is successful, then the crime is complete. 14) Section 511 of IPC contemplates that in every crime the first aspect is to establish intention to commit the offence. Second, preparation to commit it. Third, attempt to commit it. If at third stage the attempt is successful, then the crime is complete. If the attempt fails, the crime is not complete. However, the law punishes the person attempting the act. In this case, the intention or preparation to commit the offence is not at all proved. The tutored evidence of victim, though she was 5 1/2 years old, could not be read to base conviction against the accused. The aggravated form of conviction in such a sensational matter should be looked into with great care and caution. It is a well recognized principle, " all persons possessing a position of power ought to be strongly and awfully impressed with an idea that they act in trust and are to account for their conduct in the trust to one grat Master, the Author and Founder of society." 15) Taking survey of entire evidence, the findings of conviction recorded by the learned Judge will not be legally sustainable and hence, the following order : 16) The appeal is allowed. Accused is acquitted of the charge under Section 376(2)(f) read with Section 511 of IPC. He be set free forthwith, if not required in any other case.