JUDGMENT The appellant is convicted for the offences punishable under Sections 448 and 376 of the Indian Penal Code. He is sentenced to suffer rigorous imprisonment for three months for the offence punishable under Section 448 of Indian Penal Code and is further sentenced to suffer rigorous imprisonment for seven years for the offence punishable under Section 376 of the Indian Penal Code. 2. Charge against the appellant in brief is that he had committed trespass at the house of the complainant on 20th September, 2009 at 14.30 hrs. at village Pandhari, District : Amravati and had sexual intercourse with the complainant without her consent. Complainant Ku. Meena Santosh Kapse claims in her first information report that she was 15 years old at the time of incident and that she was residing in a farm house situated at village Pandhari in the agricultural field of her family. She was studying in standard IX of Jijamata High School Pusala. 3. The incident had occurred on 20th September, 2010. It was Sunday. The complainant was at home. Her parents and both brothers had gone to the field nearby the said farm house. They left farm house at about 11.00 a.m. The complainant was alone at home at the farm house. At about 2.30 pm appellant Ramrao, resident of the same village had entered the farm house and took the complainant to the backside room of the house. He laid the complainant on the floor, removed her clothes and undergarments and had forcible sexual intercourse with her till ejaculation. After some time he left the farm house. Complainant's father returned to the farm house after sometime. The incident was narrated to him by the complainant and the matter was reported to police. The first information report was registered on the same day at about 18.00 hrs. The complainant was sent for medical examination. It appears from the police papers that the clothes of the complainant were seized during the course of investigation. The clothes of the appellant were also seized and they were sent for chemical analysis to the Forensic Science Laboratory. The Forensic Science Laboratory reported that the clothes and undergarments of the complainant had no semen or blood. Spermatozoa was not found on pubic hair of the appellant also. Neither semen nor spermatozoa was found on pubic hair and vaginal swab collected by the Medical Officer. The Forensic Science Laboratory reported that the clothes and undergarments of the complainant had no semen or blood. Spermatozoa was not found on pubic hair of the appellant also. Neither semen nor spermatozoa was found on pubic hair and vaginal swab collected by the Medical Officer. After completion of investigation charge-sheet was filed in the Court of Magistrate and the same was committed to the Court of Session. 4. At the commencement of trial, charge for the offences punishable under Sections 448 and 376 of the Indian Penal Code was framed against the appellant on 12th April, 2010. The appellant had pleaded not guilty and had claimed to be tried. 5. The prosecution, in support of its case, had examined in all three witnesses. P.W.1 is complainant and P.W.2 is her mother and P.W.3 is Investigating Officer. At the conclusion of trial the learned trial Judge has convicted the appellant for the above stated two offences. 6. During the course of hearing of the appeal the learned counsel Mr. Babrekar has submitted that the appellant has been convicted on the basis of material which was not admissible in the evidence. Oral testimony of P.W.1, it is contended, was not reliable at all. 7. Learned Additional Public Prosecutor has supported the judgment and has submitted that though there are some glaring mistakes in the judgment of the trial Court, this Court can appreciate the evidence independently without looking into the judgment of the trial Court and can come to the conclusion that the final order is acceptable. Mr. Doifode has invited my attention to the statement of P.W.1 Meena, who is victim and complainant, and has submitted that there is nothing seriously wrong in her evidence and that the said evidence can be believed. It was brought to the notice of Mr. Doifode that Medical Officer has not been examined and the Chemical Analyzer's reports do not support the prosecution case. Mr. Doifode has contended that despite non-examination of Medical Officer and negative Chemical Analyzer's reports, the appellant could be convicted for the offence punishable under Section 376 of the Indian Penal Code only on the basis of evidence of P.W.1 as it is most reliable evidence and there was no reason for P.W.1 to give false evidence against the appellant. 8. I have gone through the evidence of P.W.1. 8. I have gone through the evidence of P.W.1. It is very cryptic and material portion of the same can be reproduced as under: "I along with my parents and two brothers reside in the house. At the time of incident, I was studying in the 9th standard. Incident took place on Sunday. Incident took place in last year. I was alone in the house. At about 2 p.m. the accused came to my house. He is of my native, hence, I know him. He lifted me and took on back side room. He gagged my mouth by one hand. Thereafter he removed my clothes. Thereafter he removed his own clothes. Then he laid me on the ground and committed rape on me. Thereafter he left my house." It is on the basis of this evidence that the appellant has been convicted for two offences. The case of the appellant is that he has been falsely implicated in this case and that he was brutally assaulted by brothers of P.W.1 before being handed over to the police. My attention was invited by learned Advocate Mr. Babrekar to the evidence of P.W.3 Mr. Kakde P.S.I. P.W.3 in his cross-examination has admitted that the appellant was arrested on 20th September, 2009 at about 9.30 pm. He has further admitted that in the requisition letter issued to Doctor it was mentioned that the appellant was caught hold of by the public and he was assaulted. He has admitted that he did not inquire from the appellant or had not carried out any inquiry as to where and how the appellant was assaulted. He, however, denied that the appellant was assaulted by father and brother of P.W.1. This admission on the part of P.W.3 assumes importance in view of the cross-examination of P.W.1. It was suggested to P.W.1 that her father and brothers had assaulted the appellant. It was further suggested to her that the appellant was brought near the farm house and he was tied and was assaulted. It is thus, clear that the appellant was in injured state when he was sent to Medical Officer after his arrest. These injuries were not explained by the P.W.3. As already stated, these injuries assume importance in view of the cross-examination of P.W.1 and admission on the part of P.W.3. 9. It is thus, clear that the appellant was in injured state when he was sent to Medical Officer after his arrest. These injuries were not explained by the P.W.3. As already stated, these injuries assume importance in view of the cross-examination of P.W.1 and admission on the part of P.W.3. 9. Before I proceed further, it may be noted here that though P.W.1 has stated that she was 15 yeas old at the time of incident, she had admitted in her cross-examination that her date of birth was 14th December, 1992. As such, she was more than 16 years of her age at the time of incident. P.W.1, in her cross-examination, has also stated that agricultural field of her family was adjoining the farm house. She has also stated that there is a road from western side of the house. There is one forest office at the distance of 10 to 15 feet from the farm house. She has also admitted that the area remains crowded due to the forest office. In this regard, it may be noted here that P.W.1 claims that she was lifted by the appellant and was taken to the backside room and thereafter she was gagged. She had not shouted for help when she was lifted and was being taken to the backside room. In this regard, it is not necessary to be stated that a stranger going to the house of P.W.1 and lifting her in his lap was not a common act. The appellant being more than 16 years of her age should have sensed a trouble and should have shouted for help. The learned trial Court in its judgment has stated that she could not have shouted because she was gagged. The learned trial Court should have realized that after being taken to the backside room there was a lot of opportunity to P.W.1 to shout for help. 10. It is interesting to note that though P.W.1 has stated that her parents returned home at 3.00 p.m. and she narrated the incident to her parents, father of P.W.1 has not been examined. The prosecution has chosen to examine mother of P.W.1. Mother of P.W.1 has been examined as P.W.2. P.W.1 has not stated that her father had gone to Warud. She had stated in her evidence that her parents returned home together. The prosecution has chosen to examine mother of P.W.1. Mother of P.W.1 has been examined as P.W.2. P.W.1 has not stated that her father had gone to Warud. She had stated in her evidence that her parents returned home together. Whereas, P.W.2 Lalita, mother of P.W.1, has stated that her husband had gone to Warud and that P.W.2 herself returned home from the field at about 3.00 p.m. and that after some time her husband returned back from Warud. Her husband had taken P.W.1 to the Police Station. As such, in the circumstances of the case the evidence of father of P.W.1 could have been better evidence as compared to the evidence of P.W.2. It is not explained as to why father of P.W.1 has not been examined as prosecution witness. What is interesting to note is that P.W.2 has admitted in her examination in chief that the appellant was called at the house of P.W.1 by her parents and he was made to sit in front of their house. He was handed over to police after arrival of police. This part of the evidence of P.W.2 lends support to the defence case that the appellant was brought at the farm house and he was assaulted. This is fortified by the evidence of P.W.3 who has admitted that requisition letter issued to the Medical Officer states that the appellant was assaulted by the public. 11. If one takes overall view of the evidence of P.W.2 it gives clear impression that sexual intercourse, if any, between the appellant and P.W.1 was by consent. P.W.1 was more than 16 years old at the time of incident and therefore, it did not amount to an offence punishable under Section 376 of the Indian Penal Code. It appears that the appellant was most probably visiting P.W.1 in absence of her parents and brother at the farm house. Curiously enough, the prosecution had not examined the Medical Officer. The Court can draw adverse inference for non-examination of the Medical Officer who had examined the appellant. The adverse inference drawn by the Court against the prosecution again lends support to the story of the defence. 12. The learned trial Court misdirected itself by holding that the appellant had not taken the defence of sex by consent. The Court can draw adverse inference for non-examination of the Medical Officer who had examined the appellant. The adverse inference drawn by the Court against the prosecution again lends support to the story of the defence. 12. The learned trial Court misdirected itself by holding that the appellant had not taken the defence of sex by consent. The learned trial Court failed to realize that it was not necessary for the appellant to specifically state in his statement under Section 313 of the Code of Criminal Procedure that the sex between him and P.W.1 was by consent. The appellant can take a specific defence or he can demonstrate his defence in the cross-examination of the witnesses. The learned trial Court has erred inasmuch as it failed to understand that even if there is no specific defence the same can be gathered from the cross-examination of the witnesses. Even falsity or weakness of defence of the accused cannot strengthen the case of prosecution. 13. The learned trial Court has further misdirected itself by relying upon the statement of the P.W.1 recorded under Section 161 of the Code of Criminal Procedure. It appears that the learned trial Court was not aware of the legal position that the statements recorded under Section 161 of the Code of Criminal Procedure are not substantive piece of evidence and they can be used only for contradictions and omissions. Unfortunately, the contents of the statement of P.W.1 recorded under Section 161 are used by the learned trial court to arrive at the judgment of conviction. 14. As such, it is abundantly clear that the judgment of the learned trial Court cannot be sustained and needs to be set aside. Hence, I pass the following order. i) The appeal is allowed. ii) The judgment and order passed by learned trial Court on 3rd August, 2010 in Sessions Trial No.11 of 2010 is set aside. iii) The appellant is acquitted of the offences punishable under Sections 448 and 376 of the Indian Penal Code. iv) He shall be released from prison immediately, if not required in any other case. v) Fine, if paid by the appellant, shall be refunded to him. The appeal, accordingly, stands disposed of. Appeal allowed.