Judgement GIRISH CHANDRA GUPTA, J. :- This appeal is directed against the judgment dated 29th April, 2006, passed by Mr. M. M. Banerjee, learned Additional Sessions Judge, Basirhat, in Sessions Trial No. 27(12)05 arising out of Sessions Case No. 19(9)05 convicting the appellant under S. 376(2) (f) of the Indian Penal Code, and an order dated 2nd May, 2006, by which the accused was sentenced to suffer rigorous imprisonment for a period of ten years as also to pay fine of Rs. 5,000/-, in default to suffer further rigorous imprisonment for a period of six months. 2. Briefly stated the prosecution case is that between 19th June, 2005 and 20th June, 2005 after 12.00 hours (in the night), the prosecutrix, a minor aged six years, was raped by the accused, Shyamal Biswas. The victim suffered severe bleeding injury. Immediate medical assistance was rendered by a quack, P.W. 5, Abdur Salam Mondal. In the morning an F.I.R. was lodged. The victim was referred to Basirhat S.D. Hospital where she remained for a week and was discharged on 28th June, 2005. The accused was charged under S. 376(2)(f) of the Indian Penal Code and has been convicted by the learned trial Court. The accused has come up in appeal. 3. Mr. Manna, the learned senior counsel, appearing in support of the appeal, submitted that there is no reliable piece of evidence in this case on the basis of which it can be held that the appellant is guilty of the charge levelled against him. He submitted that the judgment under challenge is perverse being not based on any evidence. He added that the accused, a young man of twenty-four years, married two months before the alleged incident, has been languishing in jail for no reason whatsoever. 4. Mr. Dastoor, the learned counsel, appearing for the State, submitted that the evidence on the record has to be assessed and the Court has to come to its own findings as regards the guilt of the appellant. 5. From the evidence on the record there can be no denial of the fact that the prosecutrix was, in fact, sexually assaulted in the night between 19th and 20th June, 2005. But the question is who has committed this crime. Was the crime committed by the accused-appellant or by somebody else? 6. The prosecutrix was examined-in-chief on 9th March, 2006. She was cross-examined on 10th March, 2006. But the question is who has committed this crime. Was the crime committed by the accused-appellant or by somebody else? 6. The prosecutrix was examined-in-chief on 9th March, 2006. She was cross-examined on 10th March, 2006. 7. The prosecutrix in her evidence-in-chief deposed that she had been raped by the accused. The prosecutrix in her cross-examination admitted that whatever she had deposed during her examination-in-chief was on the basis of tutoring made by her father. The evidence of the prosecutrix in this regard is as follows : "Yesterday I have stated what my father tutored me to state. In my statement before the Magistrate I narrated what my father instructed to state." 8. The learned trial Judge discarded the aforesaid admission of the prosecutrix and held as follows :- "In cross-examination she once denied the defence suggestion that she deposed falsely as tutored by her father but it is true that in the very next line she answered that she gave evidence as tutored by her father. Considering the totality of the testimony of P.W. 1, the victim girl, I am not inclined to rely on the concluding line of her evidence." 9. Mr. Dastoor, the learned counsel, appearing for the State, did not support this part of the judgment under challenge. It is indeed not supportable. 10. The next reasoning given by the learned trial Judge is as follows :- "She disclosed that the accused committed rape on her. As already stated above, there is no reason whatsoever to disbelieve her testimony." 11. The learned trial Judge failed to see the admission of the P.W. 2, father of the prosecutrix which is as follows : "We have dispute with the villagers at large including accused-Shyamal over the land of Kali temple at our village." 12. This is an addition to the admission of the prosecutrix that whatever was tutored by her father, she deposed that in Court. 13. The next reasoning given by the learned trial Judge is as follows : "I do not find any reason as to why P.W. 3 would give false evidence against the accused." 14. P.W. 3 in his cross-examination has admitted that he is not an eye-witness of the alleged rape. His evidence in this regard is as follows : "It is true that I have heard about the rape from P.W. 2." 15. P.W. 3 in his cross-examination has admitted that he is not an eye-witness of the alleged rape. His evidence in this regard is as follows : "It is true that I have heard about the rape from P.W. 2." 15. The next reasoning given by the learned trial Judge is that P.W. 10, who scribed the written complaint, would not have agreed to do so if there was no ring of truth in the complaint. This is something extraordinary. No Court is expected to proceed on the basis of this kind of presumption. Presumptions can only be raised where they are permitted under the law, and such a presumption is not permitted by any of the provisions of the Evidence Act or any other law. 16. The next reasoning given by the learned trial Judge is as follows : "It is not quite improbable or impossible that although P.W. 3 left the house where marriage ceremony was going on before the accused, he made a sojourn or chatted for a while in the vicinity of that house and in such circumstances it was quite possible that P.W. 2 reached his house before the arrival of P.W. 3." 17. This is a guesswork made by the learned trial Judge which is not permissible in the facts of this case. P.W. 3 has deposed as follows :- "P.W. 2, accused-Shyamal Biswas and I took the marriage feast at about 1.00 a.m. We completed the feast within 10/15 minutes. I came out from the marriage house after giving a call to P.W. 2. They did not come with me. From the marriage house I was going back to my house and on the way I heard cries of daughter of P.W. 2." 18. P.W. 3 has not stated in his evidence that on his way back home from the marriage house, he had stopped in the way or he had talked to any one. It was already half past or quarter past one in the night. How could the learned trial Judge presume that the P.W. 3 may have stopped in the way or he may have sojourned in the way or he may have chatted in the way is not only difficult to follow but is also contrary to the common course of human conduct. 19. How could the learned trial Judge presume that the P.W. 3 may have stopped in the way or he may have sojourned in the way or he may have chatted in the way is not only difficult to follow but is also contrary to the common course of human conduct. 19. The learned trial Judge proceeded to give the following further reasoning in support of his finding :- "So, considering the evidence of the victim girl (P.W. 1), her father (P.W. 2) and Biswajit Mondal, P.W. 3, I find that there is nothing on record to entertain any reasonable doubt regarding the innocence of the accused. Having regard to the evidence of P.W. 1 and the medical evidence on record it must be held that the victim girl was subjected to rape and it was the accused who committed rape on her." 20. This part of the reasoning is equally without merit. P.W. 3, we have already indicated, is not an eye-witness. P.W. 1, the prosecutrix, admitted in her cross-examination that her deposition in Court, as also her statement made before the learned Magistrate were based on the tuition tutoring of her father. The evidence of the P.W. 2 that when he came back; entered the room and lighted the chimney, he found the accused standing by the side of the victim is not believable. In the F.I.R. it is stated that the incident took place after 12.00 hours on 19th and 20th June, 2005. P.W. 2 came back to his house after 1.30 a.m. His evidence in this regard is as follows : "I was there at the marriage house from 6 p.m. to 1.30 a.m. I alone came out from the marriage house but I cannot say whether Biswajit noticed my departure." 21. It is believable that after committing a crime at 12 in the night, the criminal will continue to remain at the P.O. till after 1.30 a.m.? 22. The only other piece of evidence relied upon by the prosecution is Exhibit 5 proved by P.W. 8, Dr. Mrs. Ghosh. The Exhibit 5 contains the following recital : "Patient has been raped as per verbal statement of patient by Shyamal Biswas at night of 19/20-6-2005 at 0-45 hours." 23. There are two versions as regards the time of occurrence. According to the version recorded in the F.I.R., the time of occurrence is after 12.00 hours. Mrs. Ghosh. The Exhibit 5 contains the following recital : "Patient has been raped as per verbal statement of patient by Shyamal Biswas at night of 19/20-6-2005 at 0-45 hours." 23. There are two versions as regards the time of occurrence. According to the version recorded in the F.I.R., the time of occurrence is after 12.00 hours. According to the statement allegedly made by the victim to P.W. 8, the time of occurrence is 0.45 hours. In the charge levelled against the accused, the time of offence is stated to be 1.45 hours. Exhibit 5 further goes to show that the time of occurrence was initially possibly written as 1.45 hours, and then it has been corrected to read as 0.45 hours. What is more important is that the following portion of the recital contained in Exhibit 5 extracted above :- "Of patient by Shyamal Biswas at night of 19/20-6-2005 at 0.45 a.m." has been subsequently inserted in a different ink. 24. There is thus no dependable evidence to hold that the accused raped the prosecutrix. 25. There are other infirmities in the case of the prosecution which are tabulated hereinbelow : (a) The prosecutrix, P.W. 1, in her evidence did not depose that she had told the name of the culprit who raped her to any of the Doctors; (b) P.W. 2 deposed in his chief (sic) that immediately after the incident the victim was not in a position to state anything as regards the occurrence. When did the prosecutrix get strength to disclose the name of the culprit has not come on the evidence. Therefore, the accused must have been named in the F.I.R. merely on the basis of a guesswok or on the basis of the earlier grudge. P.W. 2 has admitted in his cross-examination that there was dispute between himself and the accused; (c) P.W. 3 in his evidence has deposed that in the marriage house, P.W. 2, the accused-Shyamal Biswas, and P.W. 3 himself took dinner together at 1 a.m. on 20th June, 2005. According to him within fifteen minutes he completed the dinner and thereafter walked out of the marriage house. While he was returning home, he heard the cries of the victim; entered the place of occurrence and saw Shyamal Biswas, the accused. Shyamal Biswas was there dining with him in the marriage house. According to him within fifteen minutes he completed the dinner and thereafter walked out of the marriage house. While he was returning home, he heard the cries of the victim; entered the place of occurrence and saw Shyamal Biswas, the accused. Shyamal Biswas was there dining with him in the marriage house. Immediately after finishing the dinner, the P.W. 3 came back and on his way he entered the P.O. Then, how could the accused-Shyamal simultaneously be at two places-Marriage House and the Place of Occurrence? (d) The evidence of P.W. 2 is that his son, Shiba, two years older than the victim, was also sleeping in the same room. Then why was the son not called as a witness? (e) P.W. 2 deposed that his wife works as a maid-servant in Kolkata whereas the prosecutrix deposed that her mother works in Delhi. If the wife of P.W. 2 and the mother of the victim was working at Kolkata, then why was she not brought as a witness? (f) P.W. 6, Dr. Ghosh, admitted the patient in the hospital. He has proved Exhibit 3 which is the bed-head ticket which contains the following history of the case. "Sexually assaulted and vaginal injury." There is no indication as to who was the perpetrator of the crime. Exhibit 3 also contains another history of the case. "Sexually assaulted with vaginal injury as stated by party." Why does this part not include the name of the accused is also very strange. Exhibit 4, possibly the outdoor ticket, having the following superscription "Emergency Section" contains the following history of the case : "Sexually assaulted vaginal injury. Stitches done by outside Doctors as stated by party. No other external injury detected. Details to be had from indoor report." Exhibit 4 was proved by Dr. Samiran Mukherjee, P.W. 7. He did not depose that the name of the perpetrator of the crime was disclosed to him. (g) The wearing apparels of the victim and the accused are claimed to have been seized under seizure lists which were Exhibits 9 and 10. But strangely enough the alleged pair of trousers allegedly containing bloodstained marks, allegedly seized by the police, were not even produced in the Court. (h) The wearing apparels of the accused and the victim were allegedly sent to the Forensic Science Laboratory but the I.O. admitted that no report has been collected. 26. But strangely enough the alleged pair of trousers allegedly containing bloodstained marks, allegedly seized by the police, were not even produced in the Court. (h) The wearing apparels of the accused and the victim were allegedly sent to the Forensic Science Laboratory but the I.O. admitted that no report has been collected. 26. These are the additional reasons why the judgment under challenge cannot be supported. 27. The appeal is, as such, allowed. The judgment and the order of conviction and sentence under challenge are set aside. The appellant should be released at once, if his detention is not required in any other case. 28. Let a copy of this judgment be sent to the learned trial Judge Mr. M. M. Banerjee. He is reminded that before convicting a person proof beyond reasonable doubt is required. It is not an idle form of words which the Supreme Court and the High Courts have been repeating time and again. The learned trial Judge for his benefit is also reminded of a very instructive sentence written by Edmund Burke. "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 great Master; the Author and Founder of the society." 29. The concerned department of this Court is also directed to send a copy of this judgment together with lower Court records of this case to the learned trial Court forthwith for information and necessary action. 30. Urgent xerox certified copy of this order, if applied for, be delivered to the learned counsel, for the parties. 31. I agree. Appeal allowed.