JUDGMENT: GUPTA, J. 1. THIS appeal is directed against a judgment dated 20th May, 2005 passed by the learned additional Sessions Judge, 1st Court, dakshin Dinajpur, Balurghat in Sessions Trial No. 19 of 2004 arising out of sessions Case No. 69 of 2004 convicting appellant under Section 376 of the Indian Penal Code and an order dated 23rd January, 2005 by which the appellant was sentenced to eight years rigorous imprisonment as also to pay fine of Rs. 3,000/-, in default to suffer further rigorous imprisonment for one year more. The amount of fine to be realised was directed to be given to the victim Lilima Khatun. 2. THE facts and circumstances of the case briefly stated are that on 23rd May, 2003 at about 19.30 hours the prosecutrix along with her maternal grand-mother was intercepted on the way by the appellant. They were threatened on the point of a knife. The grand-mother of the prosecutrix (P.W. 3) was tied down by jute plant and the prosecutrix (P.W. 2) was raped between 19.30 hours on 23rd May, 2003 and 3.30 hours on 24th May, 2003. 3. A written complaint was lodged at 15.30 hours on 24th May, 2003. The P.W. 13, Dr. Ranjan Mustafi examined the prosecutrix on the 25th May, 2003 and opined that he did not find any swelling, inclemation or injury in the vaginal canal. According to him, the prosecutrix was not raped at any point of time either fully or partially. 4. CONSIDERING the fact that the P.W. 13 by his opinion has belied the complaint as regards alleged rape, we have to carefully examine the evidence-on-record. 5. THE written complaint marked Exhibit-2 was scribed by the P.W. 4 mokshed Sarkar a Co-villager. P.W. 4 deposed that "this is the FIR which was written by me in presence of Lilima and Mafija. Thereafter, Lilima put her signature. "in the written complaint it is alleged that the appellant repeatedly raped the prosecutrix throughout the night. On 26th May, 2003 the prosecutrix made a statement under Section 164 of the Code of criminal Procedure before a learned Judicial Magistrate which has been marked Exhibit 3. In her statement made in vernacular she stated that "aamar Izzat Nilo". A statement under Section 164 of the Cr. On 26th May, 2003 the prosecutrix made a statement under Section 164 of the Code of criminal Procedure before a learned Judicial Magistrate which has been marked Exhibit 3. In her statement made in vernacular she stated that "aamar Izzat Nilo". A statement under Section 164 of the Cr. P. C. was also made by Mafuja Bibi, the P.W. 3 in vernacular on the same date before the same learned Judicial Magistrate which has been marked Exhibit-11. A translated version of the statement of Mafuja Bibi reads as follows:- "i went to my sisters house on last Wednesday. I started from there in the afternoon at 3. 30. I had no money with me. So, I decided to go walking. It grew dark while walking. A man, named malek came out from a jute-field. He, in no time, caught hold of my two hands and tied me up. Then he made my grand-daughter, Nilima Khatun, fallen on the ground. Thereafter, he started to intercourse with my granddaughter in front of me. The grand-daughter started shouting. She cried out saying, "grand-mother, save me. "The man then pressed her mouth while shouting. He continued. He was lying with my granddaughter all night long. At about 3.30 a.m. when it rained he fled away leaving us. Next, I returned home weeping. We disclosed the fact before the co-villagers. All went to search him out. " 6. THE prosecutrix in her examination-in-chief deposed as follows:- "i was coming from village of Kulohari at 3.30 p.m. by walking. When we reached at Tara Village in the side of canal in the western field then it was about 7.30 p.m. then the accused Malek came out from the jute-field. He had a large knife in his hand. He threatened us by showing that knife by saying that he would cut us. Thereafter, he tied the hand of my dadi by a green jute and he also tied my legs by my urni prior to that he undressed me forcibly and thereafter committed rape upon me. Then I shouted loudly then he pressed my mouth by his hand and threatened me. He committed rape upon me for two times. Then I was almost unconscious. The accused left the place at dawn, Thereafter I untied my dadi and dressed myself and we returned to our house. On our way we disclosed the fact to afsen Mia. Then I shouted loudly then he pressed my mouth by his hand and threatened me. He committed rape upon me for two times. Then I was almost unconscious. The accused left the place at dawn, Thereafter I untied my dadi and dressed myself and we returned to our house. On our way we disclosed the fact to afsen Mia. Thereafter to Makshed, Mujibur, Rafed and Taffajjal, sayed Mazid, I lodged FIR in the afternoon on the next date. The fir was written by Makshed as per my instruction. This is the written complaint written by Makshed. I put my signature after writing. This is my signature. It also bears signature of Makshed. I know his signature (Ext. 2). It was read over to me after completion of writing. On the date of incident I wore two Pyjamas, one frock and one kamiz and one urni. Police came to my house and seized my those dress. I was forwarded to the hospital for medical examination. I went to the doctor with my dida. I put my LTI before the doctor on a medical paper. I was also forwarded to the Court where I stated the entire fact before the Magistrate who recorded the same. I also put my signature after writing. It was also read over to me. Those are my signatures appear on that record (Ext. 3/1). At the time of incident i was aged 13 years. I was the student of Elendari. I read up to class-V. I cannot say my actual date of birth. I gave my statement before the Magistrate in my own accord. " 7. IN her cross-examination, she deposed that "i received serious injury as the accused committed rape upon me throughout night. The accused committed rape two times in the same night. I stated in my FIR that the accused committed rape upon me several times on the same night. I did not see whether my private part was seriously injured by act of the accused. But there was some injuried on the private part by the same accused by the said incident. I had dress on the upper portion of the body at the time of committing rape by the accused. " 8. MR. Banerjee, the learned Advocate, appearing in support of the appeal, drew our attention to the written complaint Exhibit-2 wherein it is alleged that the prosecutrix was forcibly stripped. I had dress on the upper portion of the body at the time of committing rape by the accused. " 8. MR. Banerjee, the learned Advocate, appearing in support of the appeal, drew our attention to the written complaint Exhibit-2 wherein it is alleged that the prosecutrix was forcibly stripped. He submitted that the allegation made in the written complaint that the prosecutrix was stripped has been given a go-by at least partly when the prosecutrix deposed that the garments of the upper portion of her body had not been removed. He also submitted that in the written complaint there is no allegation that the prosecutrix suffered any injury whereas in her deposition she stated that she received serious injury. This was contradicted by the prosecutrix herself when she stated that "she did not see whether her private part was seriously injured". She again contradicted herself by stating that "there were some injuries on her private part. " She deposed in-her-chief that she was wearing two pyjamas on the date of the incident. Mr. Banerjee submitted that this is rather unusual way of dressing. Nobody would put on two pyjamas simultaneously. This, according to him, is a piece of concoction deliberately resorted to in order to justify seizure of a red pyjama and a green pyjama by the police on 23rd May, 2003 at 19.05 hours vide seizure list marked Exhibit-4. He drew our attention to the F.S.L. report marked Exhibit-13 which goes to show that Spermatozoon have been detected in the semen stains on the Salwar marked "c". 9. MR. Banerjee submitted that going by the evidence of prosecutrix, the lower portion of her body was undressed. How could then the red salwar be stained with the marks of semen? The salwar was lying somewhere else, if the story of the prosecutrix is to be believed. Therefore, irresistible conclusion, according to him, is that this salwar has been implanted and that is why the prosecutrix alleged that she wore two pyjamas which is another piece of concoction deliberately resorted to with sinister motive. Criticizing the evidence of P.W. 2, Mr. Banerjee added that prosecutrix in her evidence stated that the accused "tied my legs by my urni. Prior to that he undressed me forcibly and thereafter committed rape upon me. "Mr. Banerjee contended that going by the evidence of the prosecutrix, commission of rape is impossible. Criticizing the evidence of P.W. 2, Mr. Banerjee added that prosecutrix in her evidence stated that the accused "tied my legs by my urni. Prior to that he undressed me forcibly and thereafter committed rape upon me. "Mr. Banerjee contended that going by the evidence of the prosecutrix, commission of rape is impossible. When her legs were tied by her scarf, she could not have been raped. The fact that her legs were tied by her urni (scarf) would go to show that neither the accused raped upon her nor he intended to do any such thing. In order to buttress his submission, Mr. Banerjee drew our attention to the evidence of P.W. 13 dr. Mustafi who in his cross-examination deposed as follows:- "I found no redness or inflamation over the body of the victim. There is no swelling, inclemation and injury in the vaginal canal. This report does not suggest that the girl was raped at any point of time i.e. once or consecutive. " 10. P.W. 13 in his Examination-in-Chief deposed as follows:- "on her examination, I found that she was conscious and her l. M.P. was 15 days back. There is no mark of violence or external injury on her body or private part. On local examination, there is no external injury in her vulva-vagina. Vulva was healthy and the vagine admits one finger. Hymen was intact. No foreign body was seen. Two vaginal swab was taken and handed over to the escorting constable with proper label. This is the report prepared and signed by own handwriting. The report is marked (Ext. 10). " 11. IN his cross-examination, he deposed as follows:- "in case of a virgin girl, only one finger admits into the vagina. As per the report, there is no case of partial or full case of rape. " 12. RELYING on the evidence of P.W. 13 Mr. Banerjee submitted that this a clear case of false implication. The reason for such false implication is that the appellant had given evidence in favour of the father of the prosecutrix in a salis concerning a dispute between the parents of the prosecutrix. When the case was suggested to the P.W. 2, the prosecutrix, she deposed as follows:- "i have no connection with my father. I am not aware regarding any salish regarding dispute between my parents. When the case was suggested to the P.W. 2, the prosecutrix, she deposed as follows:- "i have no connection with my father. I am not aware regarding any salish regarding dispute between my parents. Not a fact, the accused stated in favour of my father to that salish. Not a fact, Mujibur abused the accused at the time of salish. Not a fact, I am deposing falsely due to enmity. " 13. THE only other relevant witness is the P. W. 3 Mafuja Bibi who deposed as follows:- The incident took place by the side of Canal at Tara village at 7 p.m. At that time, the accused came out from the jute field and threatened us by showing a big knife and told us not to shout. Then he tied my hands and legs and undressed my granddaughter and thereafter committed rape upon her in my presence. Then I was crying. The granddaughter started by saying to rescue her but I was unable to do as my hands and legs were tied and there was no house near by the place of occurrence. Thereafter, I became unconscious. Thereafter, at the dawn Nilima untied me then the accused already left the place. Then we returned to our house. " P.W. 3 in her cross-examination deposed as follows:" i received swelling injury when the accused tied me then nilima was standing near me. When accused undressed my granddaughter then those dress were not torned. While the accused started committing rape upon my grand daughter then I became unconscious. Nilima received bleeding injury in her private parts. Then says she received some injury in her private parts, I stated to the doctor regarding such injuries. I have two daughters and one son. The mother of Nilima was divorced by her husband. One case was instituted by the mother of Nilima. It was settled between both parties by the intervention of the persons of both the villages. " 14. MR. Banerjee submitted that the evidence of the P.W. 3 is another piece of concoction which will be illustrated by the fact that this witness admitted at first that she did not receive any injury then she corrected herself by saying that she received a swelling injury because she was tied but she crossed all limits of probability when she deposed that she had become unconscious. What led her to become unconscious? Mr. What led her to become unconscious? Mr. Banerjee submitted that this story of having become unconscious was introduced for the first time in Court. This is not to be found in the statement under section 164 made by the P.W. 3. She introduced this in order to avoid cross-examination in greater detail. Interestingly she did not corroborate in her deposition that the prosecutrix was wearing two pyjamas. She deposed that the prosecutrix suffered bleeding injury in her private parts but she corrected herself by saying that some injury in her private parts was suffered by the prosecutrix whereas the medical officer found none. She admitted in-her-cross-examination that the mother of the prosecutrix has been divorced by her husband and that settlement had been arrived through salish by villagers. Mr. Banerjee, therefore, submitted that this is a clear case of false implication. He relied on a judgment in the case of yerumalla Latchaiah v. State of Andhra Pradesh, reported in 2006 (3) SCC (Crl.) 373 wherein the following view was expressed:-Para. 3: "in the present case, age of the victim was only eight years at the time of alleged occurrence. Immediately after the occurrence, she was examined by Dr. K. Sucheritha (P.W. 7) who has stated in her evidence that no injury was found on any part of the body of the victim, much less on private part. Hymen was found intact and the doctor has specifically stated that there was no sign of rape at all. In the medical report, it has been stated that vaginal smears collected and examined under the microscope but no sperm detected. The evidence of the prosecutrix is belied by the medical evidence. In our view, in the facts and circumstances of the present case, the High Court was not justified in upholding the conviction. " 15. MR. Goswami, the learned Public Prosecutor, submitted that the P.W. 13 exceeded his limit when he deposed that no rape partially or fully had been committed. In support of his submission he relied on a judgment in the case of Madan Gopal Kakkad v. Naval Dubey and Anr., reported in 1992 SCC (Cri.) page 598. " 15. MR. Goswami, the learned Public Prosecutor, submitted that the P.W. 13 exceeded his limit when he deposed that no rape partially or fully had been committed. In support of his submission he relied on a judgment in the case of Madan Gopal Kakkad v. Naval Dubey and Anr., reported in 1992 SCC (Cri.) page 598. He drew our attention to paragraph-37 of the judgment wherein Their Lordships quoted with approval a passage from the Modis Medical Jurisprudence which reads as follows:-Para - 37: "we feel that it would be quite appropriate, in this context, to reproduce the opinion expressed by Modi in Medical jurispruduce and Toxicology (Twenty-first Edition) at page 369 which reads thus: "thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition, Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one. " 16. AFTER hearing the learned Advocates and perusing the evidences both oral and documentary, we are of the view that the prosecution has not been able to prove its case under Section 376 beyond any reasonable doubt. The reasons which have weighed with us to take this view are as follows:- (a) The evidence of the prosecutrix that she was wearing on the fateful day two pyjamas one of which was stained with marks of semen is not believable. This was not disclosed by her either in the written complaint or in her statement made under Section 164 of the Cr. This was not disclosed by her either in the written complaint or in her statement made under Section 164 of the Cr. P.C. On the top of that according to the Serologist Report exhibit-13, the semen was disintegrated and its group could not be identified. Therefore, the semen found on the red salwar cannot be connected with the accused besides the fact that the story of the prosecutrix that she was wearing two pyjamas/salwars is inherently suspicious. The possibility of red salwar having been implanted cannot be ruled out. (b) Both the prosecutrix and her grand-mother, P.W. 3, deposed that the prosecutrix had suffered serious injury. The P.W. 3, as a matter of fact, deposed that the prosecutrix suffered bleeding injury. The fact that the P.W. 13 found no injury whatsoever renders the evidence of P. Ws. 2 and 3 highly suspect. (c) The evidence of the prosecutrix that her legs had been tied prior to commission of the rape eliminates the probability of rape. (d) In the written complaint it was alleged that the prosecutrix was fully stripped which is also the deposition of the P.W. 3 but the prosecutrix in her evidence deposed that garments of the upper portion of her body were not touched which militates against the case of the prosecutrix. The judgment in the case of Madan Gopal Kakkad (supra) relied upon by Mr. Goswami was rendered in the facts of an altogether different case. In that case, there was overwhelming evidence to show that a rape had been committed. The medical evidence in that case confirmed the fact that there were injuries on the vagina of the victim. Even without taking into account the evidence of P.W. 13 it is difficult to hold that the prosecution has been able to make out a case under section 376 of the Indian Penal Code. 17. HOWEVER, the question remains as to whether it is a case of false implication. It was suggested by the learned Counsel that because the appellant had sided with the father of the prosecutrix in a dispute between her parents, the appellant was falsely implicated. It is difficult to believe that in order to feed a grudge, even assuming it was there, any sane person would invite such a stigma on his or her daughter. We are unable to accept that the appellant has been falsely implicated in this case. It is difficult to believe that in order to feed a grudge, even assuming it was there, any sane person would invite such a stigma on his or her daughter. We are unable to accept that the appellant has been falsely implicated in this case. We are inclined to hold that an attempt to commit rape was indeed made by the accused. Salwar/pajama of the prosecutrix was removed with that intention. Once that was done the attempt to commit a rape was complete. It was thereafter not possible for the accused to go back to the mere stage of preparation. The fact that her legs were tied goes to show that at that stage either he dropped the idea or did something which rendered rape impossible. Since actually rape was not committed the P. W. 13 did not find any sign thereof. 18. WE, therefore, hold the appellant guilty under Section 376 read with Section 511 of the Indian Penal Code. The appellant has already suffered imprisonment for more than three years. The custodial sentence, in our view, shall serve the purpose of justice. The appeal is, thus, partly allowed. The appellant should be released forthwith, if his presence is not required in any other case.f