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2009 DIGILAW 816 (GAU)

Balai Natta v. State of Tripura

2009-11-18

UTPALENDU BIKAS SAHA

body2009
JUDGMENT U.B. Saha, J. 1. The instant criminal appeal is directed against the judgment and order dated 23.5.2009 passed by the learned Addl. Sessions Judge, West Tripura, Agartala in case No. ST(WT/A) 31/2007 whereby and whereunder the appellant was found to be guilty of commission of offence of rape upon the victim prosecutrix (PW2) and accordingly, sentenced to undergo RI for 10 years with a fine of Rs.1,000, id., of payment of fine to suffer SI for one month by convicting him under Section 376(2)(f). 2. Heard Mr. A.K. Bhowmik, learned senior Counsel assisted by Mr. R. Dutta, learned Counsel for the accused/appellant as well as Mr. D. Sarkar, learned P.P., for the state respondent. 3. The prosecution case in brief is that an FIR was lodged on 23.6.2006 at about 22.35 hrs by PW1, Smt. Rita Debnath, mother of the victim with Bishalgarh police station being registered as bishalgarh P.S. Case No. 102/2006 under the above mention section alleging, inter alia, that on 22.6.2006 AD (Thursday), at about 2 p.m. the accused committed rape on the prosecutrix aged about 4½ years taking her in the jungle situated in their village. After returning home her daughter, victim prosecutrix PW2 had stated to her about the incident of rape and thereafter she informed the neighbouring people of her locality about the incident and also had shown them the physical condition of her daughter. The accused Balai Natta is their neighbour and her daughter used to call him as 'Barda'. The mother of accused Balai had requested her not to disclose the incident to anybody. When the incident was stated to the elderly people of the locality, they advised her to take shelter of law and to lodge FIR before the police. On receipt of the FIR from PW1, mother, of victim prosecutrix, the Officer-in-Charge of the police station asked PW11 Sri Nripendra Narayan Das, Sub-inspector of police for investigating the incident. Accordingly, PW11 after investigation of the case filed the charge sheet. During trial the learned Addl. Sessions Judge framed charge against the accused for committing offence punishable under Section 376(2)(f), IPC. The relevant portion of the charge is reproduced hereunder for ready reference. CHARGE I, Sri S. Bhattachrjee, Addl. Sessions Judge, Court No. 2, West Tripura, Agartala, do hereby charge you, 1. During trial the learned Addl. Sessions Judge framed charge against the accused for committing offence punishable under Section 376(2)(f), IPC. The relevant portion of the charge is reproduced hereunder for ready reference. CHARGE I, Sri S. Bhattachrjee, Addl. Sessions Judge, Court No. 2, West Tripura, Agartala, do hereby charge you, 1. Balai Natta,- As follows: That, you on 22.6.2006 at about 1400 hrs at Ganiamara, under Bishalghar PS committed rape on a minor Girl viz. Astami Debnath, aged about 4½ years, D.O Kalipada Debnath and thereby committed an offence punishable under Section376(2)(f) of the, IPC and within my cognizance. And I hereby direct that you be tried by this Court of Sessions on the said charge. Addl. Session judge, West Tripura : Agartala 4. To bring home the charge, prosecution examined as many as 12 witnesses and exhibited some documents but the defence did not examine anybody as his case was pure denial. PW1, Smt. Rita Debnath is the informant and mother of the prosecutrix, PW2 is the victim prosecutrix, PW3 Sri Kalipada Debnath father of the prosecutrix, PW4, Smt. Anju Ghosh is the domestic helper of the family of the prosecutrix. PW5 Smt. Anjali Das is the Ex-pradhan of the village. PW6, Sri Indrajit Kar is the scribe of the FIR. PW7 Smt. Kajal Bhowmik and PW8 Smt. Kajal Das are the residents of the village of the prosecutrix. PW9 is the learned Judicial Magistrate who recorded the statement of the victim prosecutrix under Section 164(5), Cr.PC. PW10, Dr. Gautami Chakraborty is the pathologist who examined the vaginal swab of the victim. PW11, Sri Nripendra Narayan Das is the investigating officer and PW12, Dr. Samar Das is the medical officer who examined the victim medically. 5. On appreciation of the materials available on record, both oral and documentary and also upon hearing the learned Counsel for the parties, learned Addl. Sessions Judge found the accused/appellant guilty of the offence of rape under Section 376(2)(f), IPC and accordingly convicted and sentenced him as stated supra. Being aggrieved by the impugned conviction and sentence the accused-appellant preferred the instant appeal. 6. For better appreciation of the submission of learned Counsel for the parties, it would be proper to reproduce the salient portion of the evidence of PWs 1, 2, 3, 5, 9, 10, 11 and 12. 7. Being aggrieved by the impugned conviction and sentence the accused-appellant preferred the instant appeal. 6. For better appreciation of the submission of learned Counsel for the parties, it would be proper to reproduce the salient portion of the evidence of PWs 1, 2, 3, 5, 9, 10, 11 and 12. 7. PW1, Smt. Rita Debnath, in her deposition stated that when she as well as the prosecutrix was in their house, the accused called the prosecutrix to go with him for taking bath in the pond at a distance of half k.m. Accordingly, both of them went there. Subsequently, the prosecutrix came back after about an hour. She was found extremely depressed. She told her mother that the accused taking her in the nearby jungle committed rape upon her and also complained that she was suffering pain in her private parts. After that, the PW1 opened her panty and found blood in her private parts. Then she was confirmed that the prosecutrix was sexually assaulted by the accused. Then PW1 took the prosecutrix to the mother of the accused who saw her position and requested PW1 not to disclose the same to any other person. However, when PW1 informed the matter to her husband and other village elders they advised her to report the matter to the police and accordingly on the next day she lodged the complaint. Police took the prosecutrix for medical examination. In cross-examination PW1 stated that she had not stated in the FIR that the victim was taken by the accused on call to have bath and the victim told her about pain in her vagina and she was confirmed about rape. She further stated that she had not stated during investigation that her pant was washed away. 8. PW2, the victim prosecutrix, in her deposition stated that the accused took her in the jungle, opened her pant and committed rape. She suffered pain and there was blood in her private parts. The accused washed all these and took her to their house. She informed the fact to her mother. In cross-examination she denied the suggestion made to her inter alia, that her statement is due to tutoring by her mother. 9. PW3, Sri Kalipada Debnath, the father of the victim prosecutrix stated in his deposition that at the time of occurrence he was not at home. She informed the fact to her mother. In cross-examination she denied the suggestion made to her inter alia, that her statement is due to tutoring by her mother. 9. PW3, Sri Kalipada Debnath, the father of the victim prosecutrix stated in his deposition that at the time of occurrence he was not at home. He returned home at about 9 p.m. and then his wife told him that the accused took the victim from their residence for bathing and there he committed rape on the victim. He found the vagina of the victim with trauma and reddish in colour. So he was confirmed that she was raped. On the following morning he went to the Gaon Pradhan Smt. Anjali Das (PW5) and narrated the incident. He was asked by the pradhan to report to the police. Thereafter, he along with his wife, the Gaon Pradhan and other persons went to the police station and lodged complaint. In cross-examination he stated that on the way to place of occurrence there are some houses. He further stated that he did not state to the, I.O., that he came to know the incident from his wife after returning borne and found trauma in the private parts of the victim and has also not stated to the, I.O., that the witnesses Anju Ghosh is his domestic helper and was present in their house at that time. 10. PW4, Smt. Anju Ghosh, in her deposition stated that on the date of occurrence at noon she was working in the vegetable garden of the informant and saw the accused taking the victim prosecutrix for bath. Thereafter, the victim returned back after about half an hour and she was crying. She reported in her presence to her mother that the accused took her in the jungle and committed rape and also complaint about pain in the vagina. She along with the mother of the victim she kid her vagina and found it reddish and they were confirmed about rape upon the victim girl. In her cross-examination she admitted that she has not stated to the, I.O., that the girl informed the fact of rape to her mother in her presence and the victim girl was crying and complaining about the pain, She further stated that she has not stated to the, I.O., that the informant went to the house of the accused to inform his mother. 11. 11. PW5, Smt. Anjali Das, the former village pradhan in her deposition stated that the occurrence took place on 23.6.2006 and on the next date at about 10 a.m. the parents of the victim told her that the accused committed rape on their minor daughter. Then she inspected the private parts of the victim by opening her panty and as of common knowledge she presumed that the girl was sexually harassed and there was trauma in the area of the vagina and if was reddish in colour. In her cross-examination, she stated that though she was examined by the police in the, P.S., she had not stated that she had personally inspected the vagina and seen the same. 12. PW9 Sri Arindam Pal, the judicial Magistrate who recorded the statement of the prosecutrix under Section 164(5) stated in his deposition that he was satisfied regarding the intelligentsia of the prosecutrix and accordingly he recorded the statement of the prosecutrix in her own language, Bengali. He also stated that the victim prosecutrix was produced before him by one lady constables, namely, Shikha Sen and the statement recorded by him under Section 164. He also identified the statement recorded by him and his signature which was marked as Exhibit 3 series and Exhibit 3(1). 13. PW10, Dr. Gautami Chakraborty, who was posted as medical officer at the relevant time in I.G.M. Hospital examined the vaginal swab of the prosecutrix. Dr. Chakraborty in her deposition stated that on microscopic examination of the vaginal swab of the victim prosecutrix, spermatozoa was found absent. 14. PW11, Sri Nripendra Narayan Das is the, I.O., of the case and a formal witness. In his cross-examination he admitted the suggestion of the defence that no chemical examination of the seized panty was done and he has also not collected any paper to ascertain the age of the accused. 15. PW12, Dr. Samar Das, is a vital witness of the case who also examined the victim prosecutrix aged about 4 1/2 years on 23.6.2006, i.e. the following day of the incident. During examination he found no external on the body of the prosecutrix including her private parts. He also stated that her hymen was intact and no injury was detected in anal part. He also collected the vaginal swab and the same was sent to the I.G.M. Hospital for examination and that was accordingly examined. During examination he found no external on the body of the prosecutrix including her private parts. He also stated that her hymen was intact and no injury was detected in anal part. He also collected the vaginal swab and the same was sent to the I.G.M. Hospital for examination and that was accordingly examined. No spermatozoa was found in the swab. In his opinion, there is no evidence of penetration into her vagina but according to him chance of rape cannot be ruled out. In cross-examination he stated that the history of rape was given by PW1 and PW3, the parents of the victim prosecutrix but not by the victim herself. In his report he specifically stated that chances of rape cannot be ruled out and by that he wants to mean that there may or may not be rape in this case. 16. Mr. Bhowmik, learned senior Counsel while assailing the impugned conviction and sentence has drawn the attention of this Court primarily to the evidence of PW1, the informant mother of the victim and the evidence of PW2, the victim girl who was admittedly minor aged about 4 1/2 years and PW10, the doctor who examined the vaginal swab and PW12, another doctor who examined the victim prosecutrix. According to him, the victim being child witness cannot be said to be a reliable one and particularly as she is not aware, what is rape and also the possibility that she was tutored by the family members cannot be ruled out and her statement cannot therefore be the basis for conviction. 17. Further, referring to the medical report, Mr. Bhowmik has categorically submitted that medical evidence belied such offence of rape as the doctor PW10 who examined the vaginal swab specifically stated that on microscopic examination of vaginal swab of victim, prosecutrix, she did not find spermatozoa and the doctor PW12 who examined the victim prosecutrix (PW2) has also stated in his deposition that he did not find any external injury on her person including her private parts and no fording hair has been detected and her hymen was intact. There was no evidence of penetration into the vagina of the prosecutrix. In such a circumstance, the order of conviction and sentence passed by the learned Addl. Sessions judge in the impugned judgment and order is liable to be interfered with by this Court of appeal. There was no evidence of penetration into the vagina of the prosecutrix. In such a circumstance, the order of conviction and sentence passed by the learned Addl. Sessions judge in the impugned judgment and order is liable to be interfered with by this Court of appeal. He also contended that when there is a difference between the ocular evidence and the medical evidence in a rape case, the court has to give more weight to the medical evidence when particularly the evidence of prosecutrix is belied by medical evidence. In support of his aforesaid contention he placed reliance on a decision of the Apex Court in the case of Yerumalla Latchaiah v. State of A.P. (2006) 9 SCC 713 wherein the Apex Court set aside the order of conviction and sentence stating, inter alia, "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". He also relied the judgment of this Court in the case of Md. Jamiruddin v. State of Assam 2008 Cri. LJ 586 particularly paras 12, 13, and 14 wherein this Court discussed regarding the evidence of the doctor of that case. He also contended that in a rape case penetration is must and in absence of penetration there cannot be any rape and penetration means act of inserting penis into the female organ which is totally absent in the instant case as per the evidence of the PW12 and the opinion of PW12 that chances of rape cannot be ruled out is not a firm opinion, rather PW12 is also in doubt regarding the rape and whenever there is a doubt, accused is entitled to get the benefit of that doubt. In support of his aforesaid contention relating to penetration, he relied upon the decision of the Bombay High Court in the case of Vishnu s/o Parmeshwar Yadav and Ors. v. State of Maharashtra 1997 Crl. In support of his aforesaid contention relating to penetration, he relied upon the decision of the Bombay High Court in the case of Vishnu s/o Parmeshwar Yadav and Ors. v. State of Maharashtra 1997 Crl. LJ 1724 particularly paras 27 and 28 wherein the learned Single Judge of the Bombay High Court taking into all the evidences of the prosecutrix, medical officer as well as the medical report of the prosecutrix, exhibit 34 of that case, it is noted that, "In the said report. It is suggested that there were no signs of external injuries on any part of her body. There were no seminal or blood stains found on the body. Her hymen was found to be intact. Her pubic hair, vaginal swab, vaginal smear and blood samples were obtained and sent for further investigation. It was opined further that the girl was capable of sexual intercourse, and whether she was raped or not, could not be said. Now, unfortunately, there is no explanation given by the prosecuting agency as to what happened to the questionnaire which was sent to the Medical Officer vide Exhibit 24, which questionnaire was sent by P.S.I. Dadaji Kapadnis, the Investigating Officer.... In fact it was for the prosecuting agency to examine the doctor and to bring all the evidence on record which would have gone long way to suggest as to whether there really was sexual intercourse with the prosecutrix or not. On the back drop of the medical certificate of the prosecutrix which was gleefully admitted by the defence, it is certain that the hymen of the girl was intact and that there no outward sings of injuries or violence or anything suggesting that the prosecutrix had taken part in the sexual intercourse. If the hymen was intact then the claim of the prosecutrix that there was a physical contact 3 or 4 times in the two days at Patna becomes really suspicious. In this, the tender age of the prosecutrix will have also to be taken into consideration as to whether she knew what the sexual intercourse was. If the hymen was intact and if the doctor in her certificate could not state as to whether there was rape or not, it would be highly doubtful as to whether any sexual intercourse had taken place between the accused No. 1 and the prosecutrix(emphasis supplied). If the hymen was intact and if the doctor in her certificate could not state as to whether there was rape or not, it would be highly doubtful as to whether any sexual intercourse had taken place between the accused No. 1 and the prosecutrix(emphasis supplied). It will be seen from the evidence of the prosecutrix that the Public prosecutor also did not get it clarified in the examination-in-chief of the prosecutrix what she meant by physical contact. In order to bring home the offence of rape, the prosecuting agency should have brought on record the clinching evidence of penetration which is conspicuously absent." It is also noted by the learned Single Judge of the Bombay High Court, as to when sexual intercourse can be considered as highly doubtful. According to him, the following factors therefore, render the theory of sexual intercourse highly doubtful. (i) Complete absence of evidence as to what transpired at Allahabad and at Patna. (ii) The tender age of the prosecutrix which was only 14 years and 8 months as per the parents version and, therefore, she probably being unable to know what the sexual intercourse was. (iii) Apathy on the part of the prosecuting agency to get the term explained by the prosecutrix and the absence of the actual evidence of penetration in the oral testimony of the prosecutrix. (iv) Apathy on the part of the investigating agency to place the reply to the requisition Exhibit 24 on record, if there was any. (v) Non-examination of the concerned doctor at the trial. (vi) Finding in the medical certificate that the hymen of the prosecutrix was intact and there were no signs of any physical violence. (vii) Last but not the least, the opinion expressed in the medical certificate to the effect that it could not be said as to whether the rape has taken place or not. All these factors should put the court on guard against the finding of rape. 18. Mr. (vii) Last but not the least, the opinion expressed in the medical certificate to the effect that it could not be said as to whether the rape has taken place or not. All these factors should put the court on guard against the finding of rape. 18. Mr. Bhowmik also placed reliance on a decision in Natha v. The Crown AIR 1923 Lah 536 wherein it was held that to constitute penetration it must be proved that "some part of the virile member of the accused was within the libia of the pudendum of the woman, no matter how little." The said case of Natha (supra) has also been followed in the case of Smt. Sudesh Jhaku v. KCJ and Ors. 1998 Cri. LJ 2428. In para 23 of Smt. Sudesh Jhaku (supra) the Delhi High Court noted that, "The primary test remains to be the language employed in the Act. Section 375 of the Code uses word, which are clear and plain band unambiguously express the intention of the Legislature. As shown above, the definition of rape is based on the common law and in England, as well as in India the words "sexual intercourse" and "penetration" have all along been taken to mean the act of inserting the penis into the female organs of generation. It would not be permissible to strain the words and their well-understood and well-entranched meaning so as to bring within their fold certain acts which do not come within the reasonable interpretation of the provision it is not a case where the main object and intention of the provision is not clear. It is also not a case of absolute intractability of the language used. The language used also poses no difficulty in the intention or spirit of the law. The duty to mould or creatively interpret the legislation does not arise." Relying the aforesaid noting of the Delhi High Court, Mr. Bhowmik finally reiterated, that in absence of insertion of the penis into the female organs of generation, there can be no rape and as it is admitted by the doctor PW12 that the penis of the accused was not inserted into the female organs of generation of the victim prosecutrix. Therefore, the trial court ought to have held that there was no rape but without doing so the trial court convicted the accused/appellant on mere presumption. 19. Mr. Therefore, the trial court ought to have held that there was no rape but without doing so the trial court convicted the accused/appellant on mere presumption. 19. Mr. Bhowmik also assailed the order of conviction and sentence on the ground that the examination of the accused under Section 313 of the Code of Criminal Procedure (for short "the Code") is mandatory and in the instant case it would be evident that the trial court in fact failed to record the statement of the accused/appellant under Section 313 of the Code. Mr. Bhowmik said that the trial court put the question as well as signed the statements under Section 313 but did not record any answer given by the accused/appellant and according to him the same does not even come within the purview of improper examination, rather it is non-examination of the accused under Section 313 and as a result the accused/appellant did not get any opportunity to explain the circumstances appearing in the evidence against him and for that he failed to make out his defence. He further urges that question of examination under Section 313 is prescribed by the Legislature to fulfill the principle of natural justice so that the accused should not be penalized without providing an opportunity to him to make his defence. As the evidence, if any, against the accused was not put to him in examination under Section 313 of the Code those evinces have to be excluded even from consideration and obviously on the basis of those evidences no order of conviction and sentence can be passed. But in the instant case that was done by the trial court. In support of his contention he relied the decision of the Apex Court in case of Hate Singh Bhagat Singh v. State of Madhya Bharat AIR 1953 SC 468 , the case of Basavraj R. Patil and Ors. v. State of Karnataka and Ors. (2000) 8 SCC 740 particularly paras 19 and 20. He also relied the decision of the Apex Court in Latu Mahato and Anr. v. Stare of Bihar (2008) 8 SCC 395 wherein the Apex Court noted that, "The High Court was dearly wrong in holding that the charges were properly explained to the accused persons while recording their statement under Section 313 Cr.PC. He also relied the decision of the Apex Court in Latu Mahato and Anr. v. Stare of Bihar (2008) 8 SCC 395 wherein the Apex Court noted that, "The High Court was dearly wrong in holding that the charges were properly explained to the accused persons while recording their statement under Section 313 Cr.PC. Therefore, their conviction as recorded by the trial court and upheld by the High Court cannot be maintained." He also relied upon the decision of the Apex Court in the case of Keya Mukherjee v. Magna Leasing Ltd. and Anr. 2008 CrLJ 2597 wherein the Apex Court discussed the objective of examination of accused under Section 313 of the Code. While discussing the object of examination under Section 313 of the code the Apex court noted that, "the section itself declares the object in explicit language that "it is for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him". The court also noted that in Jai Dev v. State of Punjab AIR 1963 SC 612 Gajendragadkar, J. (as he then was) speaking for a three-Judge bench has focused on the ultimate test in determining whether the provision has been fairly complied with. He observed this: "The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to inquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him that would no doubt be a serious infirmity." It is further noted that, "it is well settled that the provision is mainly intended to benefit the accused and as it is corollary to benefit the court in reaching the final conclusion." Mr. Bhowmik further contended that it is due to non-examination of the accused under Section 313 a serious prejudice has been caused to him and the learned trial court reached to a wrong conclusion while finally deciding the matter. 20. Per contra Mr. D. Sarkar, learned Public Prosecutor for the State respondent, placing reliance on the decision of the Apex Court in the case of State of M.P. v. Dharkole alias Govind Singh and Ors. 2005 Cri. 20. Per contra Mr. D. Sarkar, learned Public Prosecutor for the State respondent, placing reliance on the decision of the Apex Court in the case of State of M.P. v. Dharkole alias Govind Singh and Ors. 2005 Cri. LJ 108 wherein the Apex Court held that "coming to the plea that the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye witnesses' account which had to be tested independently and not treated as the Variable' keeping in the medical evidence as the "constant" and also held that, "where the eye witnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive" and referring to the decision in the case of State of Punjab v. Hakam Singh 2005 Cri.LJ 4111 wherein the Apex Court while discussing the medical evidence of PW2 of that case. Dr. S.K Gupta who conducted the Post Mortem examination noted that, "whenever there is a conflict between medical evidence and ocular testimony normally ocular testimony should be preferred unless it belies fundamental facts", contended that when there is a difference between the ocular evidence and the medical evidence the ocular evidence will prevail over the medical evidence being the medical evidence is a opinion evidence. He also contended that a small child, victim prosecutrix though not aware what is rape, but she narrated the story what happened with her immediately after the occurrence and from the narration every reasonable person can come to a conclusion that the prosecutrix was raped. In the instant case also the mother of the victim on her narration channel to a conclusion that her daughter was raped by the accused and accordingly she took the shelter of law. He also contended that there is no doubt that for rape, penetration is must but that does not mean that full penetration is required for every rape. In the instant case also the mother of the victim on her narration channel to a conclusion that her daughter was raped by the accused and accordingly she took the shelter of law. He also contended that there is no doubt that for rape, penetration is must but that does not mean that full penetration is required for every rape. And in the instant case the doctor PW12 though stated in his report that no injury detected in anal part and no evidence of penetration into vagina was found as well as no spermatozoa was available but at the same time he also stated in his report that chance of rape cannot be ruled out, meaning thereby, the opinion of the doctor is also inconclusive and the same cannot be relied upon by the court. 21. So far as the contention of Mr. Bhowmik relating to Section 313 of the Code Mr. Sarkar fairly conceded that the trial court failed to discharge its duty a entrusted on it by the Legislature and non-examination of the accused has taken away a valuable right of the accused/appellant on adducing his evidence relating to defence. And according to him, it would not be proper for this Court to maintain the order of conviction and sentence. Rather it would be proper to remit the case before the trial court again for examining the accused/appellant under Section 313 of the Code so that he can place his case of defence before the trial court. 22. Before discussion on the submission of the learned Counsel for the parties, it would be proper for this Court to reproduce the relevant paragraphs of Md. Jamiruddin Ahmed (supra) as relied upon by Mr. Bhowmik. Accordingly, the paragraphs 12 to 16 are quoted herein under: 12. To justify such a claim of commission of offence of rape for which she suffered pain for such penetration, let us examine the meted evidence as deposed by Dr. PW5. As per medical evidence of PW5 on examination found as follows: Height 3' x 11", weight 25 kgs. Teeth 12/3 (four lower milk teeth had fallen). Breast not well developed, valve and vagina not well developed, Hymen were found present. No spermatozoa was seen on examination of labial smear. X-ray of the left elbow and wrist joint showed that epiphyseal plates of both the joints did not fuse with the corresponding shafts. Teeth 12/3 (four lower milk teeth had fallen). Breast not well developed, valve and vagina not well developed, Hymen were found present. No spermatozoa was seen on examination of labial smear. X-ray of the left elbow and wrist joint showed that epiphyseal plates of both the joints did not fuse with the corresponding shafts. The injury was (not) found on any part of the body including genetalia and breasts. 13. The Doctor in his opinion clearly stated that the girl was about 7 years but below 11 years of age. He did not find any symptom of sexual intercourse or any sexual assault on the girl. On cross-examination he explained that it was a fact that if a girl of less than 12 years was subjected sexual intercourse by an adult boy, there was bound to rupture of four chetty and abrasion of labia majora and minora and there was every possibility of tearing of hymen. 14. On bare perusal of the medical evidence it would be clear that there was no element of offence of rape on PW4 and the girl did not suffer any injury on any part of her body as claimed by the prosecutrix in her deposition as PW4. 15. In such a situation supported by the medical report of the Doctor, it can be easily held that there was no symptom of sexual intercourse or any sexual assault on the girl and the evidence of PW4 is belied by the medical evidence. 16. Having meticulously considered the testimony of PWs 4 and 5 and also having regard to the judicial pronouncement referred to in Yerumalla Latchiah's case (supra) as well as upon hearing the learned Counsel for the parties, we are of the considered opinion that in the facts and circumstances of the case in its totality, the testimony of PW4 cannot be accepted as the same has been totally impeached by medical evidence. 23. Having heard the learned Counsel for the parties and on appreciation of the evidences on record as well as the documents exhibited and the law reports cited, it appears that the learned trial court has reached its conclusion for passing an order of conviction and sentence only on mere presumption and he has forgotten the duty cast on the judicial office and the oath of deciding matters brought before it as per law, meaning thereby the evidence on record. In the instant case, while he is sending the accused/appellant for suffering a sentence of RI for 10 years he even did not consider to record the statement of the accused under Section 313. It further appears from the record that he obtained the signature of the accused/appellant on a purported form of 313 without recording the statement of accused/appellant and he himself also put his signature on the said purported form meaning thereby the trial court failed to discharge its duties as entrusted on it by the Legislature. Justice need not only be done but it must also be shown to have been done. 24. From the evidence of the prosecutrix, it appears that she stated before the court that she was raped by the accused/appellant but in the judgment of the trial court nowhere the learned trial judge stated whether a prosecutrix like PW2 is really aware of the meaning of rape and consequences of rape. In absence of the statement from the prosecutrix the court is supposed to take aid from the other witnesses. The parents of the prosecutrix PW1 and PW3 are the witnesses to whom the prosecutrix allegedly stated the incident of rape and the mother PW1 also found blood on the private parts of the prosecutrix PW2 but the said evidence of PW1 is in no way corroborated by the evidence of PW2, Doctor who examined the prosecutrix. And it also appears from the evidence of PW1 that she did not state to the I.O. of the case regarding the fact that the prosecutrix told her about the pain in vagina and she had seen blood thereof and was confirmed about rape. Therefore, it can be easily said that those statements are in fact the improved statements. There is no doubt that for rape full penetration is not required, as stated by Mr. Sarkar, but some sort of penetration is called for which is also absent in the evidence of prosecution before the learned court below though the prosecutrix in her 164 statement stated about penetration. We may now see the statement of prosecutrix under Section 164 of the Code recorded by the learned Magistrate after testing the intelligentsia of the prosecutrix, as relied upon by Mr. Sarkar. 25. We may now see the statement of prosecutrix under Section 164 of the Code recorded by the learned Magistrate after testing the intelligentsia of the prosecutrix, as relied upon by Mr. Sarkar. 25. It is the admitted position that the alleged occurrence occurred on 22.6.2006 and the 164 statement of the prosecutrix was recorded on 7.7.2006, i.e., after 15 days of the alleged occurrence and in the meantime she was with her parents. And it also appears that in her 164 statement she stated that the accused had taken her to the jungle and there he spread his gamcha (napkin) on the earth and got her laid dam and thereafter accused had penetrated his penis into her vagina and done 'ita ita'. Ita ita' means firstly inserting the penis and thereafter taking it (penis) slightly out, which she did not even state before the court at the time of trial. Therefore, it cannot be ruled out that between these 15 days the prosecutrix might be tutored either by her parents or by others and it world not be proper for the court to convict the accused person on the basis of such a statement. And so far as PW5, former Gao Pradhan is concerned, she is a witness who heard the story from the parents of the prosecutrix. Therefore, her statement will in no way help the prosecution case. 26. This Court has gone through the decision in the case of Dharkole (supra) as relied upon by Mr. Sarkar The fact of that case is different than the case in hand. The case of Dharkole (supra) is relating to a murder and the trial court convicted the accused Kamal Singh, Manni and Dharkole and the court considering the fact of that case noted that, "It would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye-witnesses account which had to be tested independently and not treated as the Variable' keeping the medical evidence as the 'constant'." Opinion in a murder case by a medical officer and opinion in a rape case by a medical officer has different footings as in a rape case a prosecutrix may implicate a person falsely but to test her evidence except the medical evidence there is no other way, when there is no eye witness. In this situation, it would not be proper for the court to discard the medical evidence and also to rely upon the ocular evidence. In the instant case, when there is a specific statement by the doctor PW12 that there was no external injury in the body of the prosecutrix including her private parts and even no injury was detected in her anal part and there was no evidence of penetration into her vagina it cannot be said that the prosecutrix was raped by the accused. 27. Now let us consider the law laid down by the Apex Court relating to examination under Section313 of Cr.PC. In Naval Kishore Singh v. State of Bihar (2004) 7 SCC 502 , particularly para 5 of the said law report the Apex Court noted thus: 5. Counsel for the appellant pointed out that the Sessions Court committed serious error in not properly examining the accused under Section 313 Cr.PC. Our attention was drawn to the statement taken from the present appellant. Only three questions were put to the appellant. The first question was whether he heard the witnesses and the second question was that the evidence given by the witnesses showed that he committed the murder of the deceased and whether he had to say anything in defence. The questioning of the accused under Section 313 Cr.PC was done in most unsatisfactory manner. Under Section 313 Cr.PC the accused should have been given opportunity to explain any of the circumstances appearing in the evidence, which had been produced by the prosecution, should have been put to the accused in the form of questions and he should have been given opportunity to give his explanation. No such opportunity was given to the accused in the instant case. We deprecate the practice of puffing the entire evidence against the accused put together in a single question and giving an opportunity to explain the same, as the accused may not be in a position to give a rational and intelligent explanation. The trial judge should have kept in mind the importance of giving an opportunity to the accused to explain the adverse circumstances in the evidence and the Section 313, Cr.PC examination shall not be carried out as an empty formality. The trial judge should have kept in mind the importance of giving an opportunity to the accused to explain the adverse circumstances in the evidence and the Section 313, Cr.PC examination shall not be carried out as an empty formality. If is only after the entire evidence is unfurled the accused would be in a position to articulate his defence and to give explanation to the circumstances appearing in evidence against him. Such an opportunity being given to the accused is part of a fair trial and if it is done in a slipshod manner, it may result in imperfect appreciation of evidence. In various decisions of this Court, the importance of questioning the accused under Section 313, Cr.PC was given due emphasis, e.g., Rama Sankar Singh v. State of W.B., Bhalinder Singh v. State of Punjab, State of Maharashtra v. Sukhdev Singh and Lallu Manjhi v. State of Jharkhand. 28. This Court is really shocked on going through the prosecution story as the allegation is relating to rape on a child of 4½ years but there is no other way before the court except to decide the matter in accordance with law, i.e., evidences available. More so, when the golden thread in criminal jurisprudence is that nine guilty may escape but one innocent should not suffer but at the same time it is the duty of the court also to see that no guilty should escape unpunished once the guilt has been proved to the hilt. In the instant case, having meticulous examination of the testimony of PW1, PW2, PW10 and PW12 and also having regard to the judicial pronouncement as referred supra as well as the submission of the learned Counsel for the parties, this Court is of the considered opinion that in the facts and circumstances in its totality the statement of PW2 cannot be accepted as the same has been impeached by medical evidence. As there is a doubt in the mind of this Court, this Court initially considered it would be proper to remit the matter again before the trial court for re-examination of the accused, under Section 313, Cr.PC of the Code so that the accused can make his defence against the evidence of the prosecution. As there is a doubt in the mind of this Court, this Court initially considered it would be proper to remit the matter again before the trial court for re-examination of the accused, under Section 313, Cr.PC of the Code so that the accused can make his defence against the evidence of the prosecution. But as the prosecution totally fails to make out its case for conviction on the evidence as its, even if the case is remanded to the trial court for examination under Section 313, Cr.PC of the Code then also the prosecution case will not improve and the accused/appellant cannot be convicted. Therefore, this Court is refrained, from remitting the case to the trial court for examination under Section 313, Cr.PC of the Code. 29. In the result, the conviction and sentence of the appellant under Section 376(2)(f) IPC is hereby set aside and quashed and the accused/appellant is acquitted from the alleged charges. Appellant be set at liberty forthwith, if he is not wanted in connection with any other case. LCR be sent down forthwith.