JUDGMENT N. Chaudhury, J. 1. This is a criminal appeal against conviction under Section 374 of the Code of Criminal Procedure challenging judgment and order dated 31.1.2013 and 5.2.2013 passed by learned Addl. District and Sessions Judge-IV, Aizawl in Crl. Tr. No. 1720/2010 under Sections 376/325 IPC. The prosecution story is that one H. Lalhlupuia lodged ejahar with the officer-in-charge of Bawngkawn Police Station, Aizawl on 7.7.2010 at around 12:35 a.m. alleging that on 6.7.2010 at around 11:00 p.m., his younger sister-in-law was raped by Lalnunsiama (appellant herein) in a City Bus bearing Registration No. MZ 01 6886. On the basis of the said ejahar GD entry No. 172/2010 at 12:35 a.m. was registered and investigation started. The Police arrested the accused in the same night within few hours and thereafter submitted chargesheet on completion of investigation. 2. The learned Addl. District and Sessions Judge, Aizawl to whose Court the case was transferred after it was committed, framed charges against the appellant on two grounds. First, commission of rape on the victim on 6.7.2010 at 11 p.m. inside City Bus bearing registration No. MZ 01-6886 at Zuangtui, Muanna Veng, Aizawl and secondly, for causing grievous hurt to the victim under Section 325 IPC. The point for determination before the learned Sessions Judge was whether the accused committed rape on the victim and whether he caused grievous injuries on her person to materialize his lust for committing rape while she was going alone in the bus of which he was the driver. 3. To prove the charges prosecution examined as many as 6 witnesses including I.O. and M.O. while defence examined one witness. 4. PW 1 in deposed in course of trial that on 6.7.2010 at about 11 p.m., he received a phone call from his sister-in-law, the prosecutrix informing that she had arrived at Thuampui from Silchar asking him, as to whether he was in a position to pick her up from the Thuampui stand. Initially, the PW 1 told her that she could herself come by hiring a taxi, as he did not have any means of communication of his own but in the meantime, one of his friends Marova arrived and so he requested and rather persuaded Marova to take him to the taxi stand in his Maruti car. Initially, the PW 1 told her that she could herself come by hiring a taxi, as he did not have any means of communication of his own but in the meantime, one of his friends Marova arrived and so he requested and rather persuaded Marova to take him to the taxi stand in his Maruti car. When they reached Thuampui junction near Zuangtui they found that the bus was coming towards them and he heard the prosecutrix shouting to him from inside the bus. She told her from inside bus to go back as she had already boarded in the bus and accordingly, he went back home only to find that the bus did not reach in front of their house. Even after waiting for sometime the prosecutrix was not seen in their house. This made them suspicious and he along with his wife proceeded towards the bus stop which was near their house when they saw that the bus was coming back. Then his wife entered the bus and immediately started screaming and called the PW 1. He at once went inside and found that the prosecutrix was lying down on the floor of the bus with bleeding injuries over her body. She did not respond on being asked but on being vigorously shaken she stated that the appellant had assaulted her. The appellant was sitting in the driving seat at that time. On a hue and cry being raised, people assembled when the appellant escaped. Thereafter, FIR was lodged with the police and finally police arrested him at night from the TNT camp. The victim was also taken to hospital where she was examined. 5. PW 2 the sister of the victim who is also the wife of PW 1 stated in the same breath as did her husband. Only difference in her statement is that when she first entered into the bus, she found her sister in a pool of blood but sitting on the floor of the bus leaning against the chair of the bus. The driver was still then sitting in the driving seat. She claimed to have held her sister. By that time the neighbors had also assembled. Then police came and after conducting some formalities the victim was taken to hospital by police and she stayed in the hospital for one week. The driver was still then sitting in the driving seat. She claimed to have held her sister. By that time the neighbors had also assembled. Then police came and after conducting some formalities the victim was taken to hospital by police and she stayed in the hospital for one week. PW 2 stated that she did not accompany her sister to the hospital. She further stated that when she first saw the victim inside the bus sitting on the floor with a pool of blood, she screamed 'Kanau, ka nau' but the victim only said 'a na, a na'. She further stated that she did not ask her sister whether she was raped or not. In course of cross examination, the PW 2 could not disclose the gap between the time when the bus passed in front of their house and the time when it was halted in front of their house after turning. 6. PW 3 is the victim. She was about 29 years at that time after expiry of about 2 years from the date of alleged offence. According to her she proceeded in the bus to reach the house of the PWs 1 and 2 when she saw PW 1 in a taxi near the water point and called him to go back since she had already boarded on the bus. At that time the bus had almost halted but since the victim asked the PW 1 to go, the bus started moving again. But after the bus reached near the house of PW 2, she asked the driver to stop. She also saw her sister standing outside the house and called out to her. The driver did not stop and accelerated the speed. The bus reached near Zuangtui Muanna veng and then stopped. The accused driver then came to her and held her and said he would pay her if she had sexual intercourse with him. She further stated that she had resisted and struggled against him and then there was a physical fight between them and that she was ready to fight him till death. The accused gave her fist blows, pulled her, kicked her inside the bus but she struggled with her best effort. He banged her head on the bus seat and then hit her head by the weapon and thereafter, she lost her consciousness. The accused gave her fist blows, pulled her, kicked her inside the bus but she struggled with her best effort. He banged her head on the bus seat and then hit her head by the weapon and thereafter, she lost her consciousness. The witness deposed that she regained her consciousness when she was in hospital. She found pain all over her body including her private parts. She stated that during the fight, she lost her pant and under pant. In the course of cross examination, the witness also could not say the time gap between she saw her sister in front of her house and the time when the bus came to a halt in front of her house since at that time she was unconscious. She denied the suggestion that out of panic, she jumped out of the bus and the driver pulled her inside the bus and then took her near the house of her sister by bus. Of course she admitted that when she had regained her senses, but there was no bleeding from her private parts. Although she denied the suggestion that the accused did not penetrate his male organ into her private part, she stated that she was not aware as to what the accused did over her body after she lost consciousness but she did not remove her under pant and pant by herself. 7. The medical officer who examined her injuries was examined as PW 4. He deposed that there was no smell of alcohol from her mouth and her clothes were soiled and torn and her speech was normal at the time of examination. According to the Doctor, she sustained severe injuries for which she could not walk and could not perform the muscular coordination test, her conjunctiva was mildly congested, her pupils were mildly dilated on reacting to light but she was well oriented to time, place and person. She found to have laceration on her right arm, right side of chin and sub-mandibular reason of lower jaw. She had abrasions on right cheek and right forehead. The Doctor also opined that injury was grievous in nature and then he referred her to report to Surgeon Dr. Zothana for having a CT Scan. The Doctor proved Exhibit P2, the medical examination report of accused; Exhibit P5 is the injury report in respect of the victim. She had abrasions on right cheek and right forehead. The Doctor also opined that injury was grievous in nature and then he referred her to report to Surgeon Dr. Zothana for having a CT Scan. The Doctor proved Exhibit P2, the medical examination report of accused; Exhibit P5 is the injury report in respect of the victim. Exhibit P2 shows the date and time of examination as at 2:40 a.m. on 7.7.2010 i.e. the same night the offence was said to have been committed. I shall deal with Exhibit P2 in the later part of the judgment. Exhibit P5 is the injury reported of the victim and it shows that the time and place of the examination was 7.7.2010 at about 1:10 p.m. i.e. in the same night within about 2 hours of the alleged occurrence. 8. One Dr. Ngurnunzami Sailo, PW 5 is the gynecologist who examined the genital of the victim. According to her, she received the requisition at around 8:30 a.m. on 7.7.2010. She examined the victim and recorded statement. She stated that at that time the victim was unconscious. She found that the victim had sustained injury over her right forearm, abrasion on her chin and forehead. There was stain on her under pant. There were marks of violence on her body. She stated that three vaginal smears were taken for laboratory examination and her pant and under pant were also sent for laboratory examination. She found laceration on her left labia minora, abrasion over her perineum and her hymen was intact. From the findings, she opined that the victim was sexually assaulted. But she could not definitely state as to whether there was any vaginal penetration. However, she did not rule out that there might be partial penetration on her labia minora and perineum. In course of her cross examination, she denied that abrasion and laceration could be caused by any male organ. She further stated that perineal area being very delicate abrasion and laceration may be caused even due to stretching. She stated that there can be such abrasion and laceration due to reasons other than penetration of a male organ but definitely it cannot be due to falling from a bus. In course of her cross examination, she further testified that laboratory report in respect of seminal stain was negative. She stated that there can be such abrasion and laceration due to reasons other than penetration of a male organ but definitely it cannot be due to falling from a bus. In course of her cross examination, she further testified that laboratory report in respect of seminal stain was negative. She did not receive the laboratory report in respect of the stain found on the under pant and pant of the victim. Thus, from the deposition of this witness, no material is available to come to the definite finding that there was rape of the victim. 9. The investigating officer was the last and the sixth witnesses in the case. According to him, he received telephonic information regarding the incident at about 10:00 p.m. on 6.7.2010. He was also informed that the driver was the prime suspect and that he might have gone to the TNT camp. Having informed the matter to the O/C, he immediately proceeded to the place of occurrence with two drivers. Where one of the driver was instructed to drive the bus from Zuangtui to Bawngkawn PS, he went to TNT camp and inmates of the camp heard over the accused who was immediately taken to Bawngkawn PS. He stated that he conducted investigation and made seizure of bus bearing registration No. MZ 01 6886. PW 6 stated that he found the victim inside the house of PWs 1 and 2. The victim and the accused were sent for medical examination. He seized her hair strand which was found inside the bus. Exhibit P7 is the seizure memo. 10. After examination of 6 witnesses from the side of the prosecution, the learned Addl. District and Sessions Judge-IV, Aizawl examined the accused under Section 313 Cr.P.C. He was asked as to why he did not stop the bus although victim asked him to stop in front of the house of PWs 1 and 2. He replied that he did not stop the vehicle in front of the house of PWs 1 and 2 because he wanted to have some more liquor and so proceeded to the house of the liquor vendor but found the same closed. Then, he came back slowly and proceeded about 2/3 furlong when he saw the victim lying on the roadside in injured condition with bleeding on her forehead. Then, he came back slowly and proceeded about 2/3 furlong when he saw the victim lying on the roadside in injured condition with bleeding on her forehead. He claimed to have taken her back to the bus and reached her up to the house of her relative namely, the PWs 1 and 2. He denied to have approached the victim for sexual intercourse against payment. He also denied to have assaulted the victim and hitting on her head inside the bus and also with a weapon. On the face of specific question as to whether he had escaped from the driving seat of the bus after the people had gathered, he stated that PW 1 entered the bus and took a dao to kill him. He felt the situation was out of control and he ran toward TNT camp. According to him, it is he who told the TNT people to call the police but they did not do so. The accused stated that the injury of the victim was not caused by him in anyway. Although in course of examination under Section 313 Cr.P.C., he refused to lead any evidence but subsequently he examined one P.C. Lalchhanhima as DW 1. This witness stated that he knew the accused. On the fateful night he was proceeding on the scooter and he saw a bus while he could not know the exact location but he spotted that a man carrying a woman inside the bus from the road side and thereafter the bus proceeded at some distance. He continued to follow bus till some distance and found the bus halted and he looked and saw a woman was standing on the roadside. He did not know whether the woman carried inside the bus was injured or drunk. This evidence of DW 1 is in conformity with the stand taken by the accused in his statement under Section 313 Cr.P.C. It is evident from Exhibit P2 that even within 2/3 hours of the alleged incident; the accused had taken the same stand as taken in his statement under Section 313 Cr.P.C. He stated that out of panic, the victim jumped out of the running bus and sustained injury. Even before the medical officer who had examined him on the very night of occurrence, he made same statement. Even before the medical officer who had examined him on the very night of occurrence, he made same statement. This stand of the accused is also corroborated by DW 1, who is an independent witness. This witness was cross examined at length. But from the cross examination, it does not appear that the prosecutrix had succeeded to shake his credibility. Apart from some suggestion, no serious question had been put to him. At least it was stated by him that at the given point of time, the bus driver had carried an injured lady from the road and took him to the bus and ultimately halted the bus in front of the house of PWs 1 and 2. 11. After consideration of the materials on record, the learned Addl. District and Sessions Judge-IV, Aizawl, passed her judgment on 31.1.2013 holding that the accused is guilty of offence under Sections 376(1)/325 IPC. The accused has been sentenced to undergo Rigorous Imprisonment for 7 years and to pay a fine of Rs. 30,000/- and in default to undergo another R.I. for a period of 6 months for the offence punishable under Section 376(1) IPC. In respect of the offence punishable under Section 325 IPC, the accused was sentenced to undergo RI for 3 years and to pay a fine of Rs. 10,000/-, and in default to suffer another RI for 2 months. The sentences were to run consecutively. 12. It is this judgment which has been challenged in this appeal. Since the accused did not engage any counsel, an Amicus Curiae was appointed by this Court. Mr. K. Laldinliana, learned Amicus Curiae has rendered valuable service to this Court by giving adequate assistance on facts as well as on law. I have also heard Mr. Lalsawirema, learned Addl. Public Prosecutor appearing on behalf of the State. 13. The accused has been charged and convicted for two offences. First, under Section 376(1) IPC and secondly, under Section 325 IPC. Section 325 IPC deals with punishment for voluntarily causing grievous hurt. Grievous hurt has been defined in Section 320 IPC. Section 320 is exhaustive in nature and it has laid down as many as eight exigencies when an injury can be held to be a grievous one. In this case, injuries in the person of the victim are given in Exhibit P5. Grievous hurt has been defined in Section 320 IPC. Section 320 is exhaustive in nature and it has laid down as many as eight exigencies when an injury can be held to be a grievous one. In this case, injuries in the person of the victim are given in Exhibit P5. The types of injury mentioned at Exhibit P5 are three lacerations and three abrasions which are said to have been caused by blunt weapon. From perusal of Exhibit P5, it does not appear that any of these injuries come within the instances mentioned in Section 320 IPC and as such it cannot be said that any grievous injury has been caused to the victim. The statements given by the two Doctors, namely, PW 4 and PW 5 do not show that grievous injury is available in any part of the body of the victim. Rather from the cross examination of PW 5, it appears that the abrasion caused in the perennial or adjoining part of the genital of the victim can be caused owing to stretching also. If the evidence of DW 1 along with the stand taken by the accused in course of his statement under Section 313 Cr.P.C. and the stand taken at the threshold by the accused before the PW 4 is taken into consideration, it appears that the injuries on the body of the victim could be due to fall if she had made any attempt or really jumped outside the bus while it was moving. Thus, there is no material to hold that the injury caused on the body of the victim comes within the definition of grievous hurt within the meaning of Section 320 IPC. So, it is not possible to sustain the conviction of the accused under Section 325 IPC and, accordingly, this conviction is set aside. 14. Now it is to be seen as to whether there is any proof beyond reasonable doubt to hold that accused had raped the victim. PW 2 was the first person to walk inside the bus when it had come and stopped near their house. At that time the driver was sitting in the driving seat and the victim was found sitting on the floor of the bus with her head on the chair leaning against the seat. PW 2 was the first person to walk inside the bus when it had come and stopped near their house. At that time the driver was sitting in the driving seat and the victim was found sitting on the floor of the bus with her head on the chair leaning against the seat. The PW 2 screamed out 'ka nau, ka nau' to which the victim replied only as 'anaana, expressing that she was in pain. PW 1 stated that after PW 2 had entered into the bus and screamed, he had also entered into the bus. According to him, he found the victim lying on the floor of the bus. This witness said that the victim did not give any reply on being questioned, but only after being vigorously shaken, she expressed that the driver had assaulted her causing injury. If the versions of these two witnesses are taken together, it can be said that the victim was not in unconscious state as claimed by her. She replied when she was called by her sister PW 2. She also gave a meaningful reply about what had happened to her. She was sitting inside the bus as found by PW 2, who first saw her and the driver was sitting in the driving seat. It does not appear to be probable that after having committed any offence, the driver may dare coming in front of the house of PWs 1 and 2. Both the witnesses saw the accused sitting in the driving seat. If these statements of the PWs 1 and 2 are compared with the statement of the accused made under Section 313 Cr.P.C., it becomes clear that the accused continued sitting in the driving seat till he apprehended assault on him by the persons assembled there and then only he escaped from the place. Moreover, it is this driver who had taken away the victim by his bus and then he again reversed the vehicle and came back in front of the house of the PWs 1 and 2 where the victim wanted to alight from the bus and stopped the bus there. Had he been guilty of the offence of rape, he would have escaped from the place where he had committed any offence and had not carried the victim to her sister's house. 15. Had he been guilty of the offence of rape, he would have escaped from the place where he had committed any offence and had not carried the victim to her sister's house. 15. It is necessary to keep it in mind that the accused had expressed before the medical officer (PW 4) within 2/3 hours of the occurrence that the victim had jumped out of the running bus. He himself had taken her inside the bus and had carried him to the place near the house of the PWs 1 and 2. DW 1 had witnessed that a man took the unconscious body of a women inside the bus and this bus stopped near house of PWs 1 and 2. This version of the accused coincides with the version of DW 1 which has not been discredited in anyway either by the prosecution whereas or by cross examination of the DW 1. If there is any semblance of truth in this statement, as to jumping out of the running bus, and then taking her inside bus by accused, driver, then the prosecution story that she was assaulted by driver and that he made any attempt of committing rape on her cannot be accepted. Here there are two versions and both are probable on the basis of the material on record. In such case, the view in favour of the accused has to be taken. And once it is taken, it is to be held that the injuries on the person of the victim were due to fall on the road as she wanted to jump out of running bus and the same was not because of assault by the accused. 16. It is also noticeable that the under pant and pant of the victim were sent for forensic study. The PW 5 who is the Gynecologist stated that in the instant case the laboratory report in respect of seminal stain was negative. She further stated that she did not receive the laboratory report in respect of the stains found in the pant and under pant of the victim. It is nobody's case that the victim was found in a naked position. Her pant and under pant was sent to laboratory for examination. No seminal stain was available anywhere. She further stated that she did not receive the laboratory report in respect of the stains found in the pant and under pant of the victim. It is nobody's case that the victim was found in a naked position. Her pant and under pant was sent to laboratory for examination. No seminal stain was available anywhere. From the evidence, it appears that three vaginal smears were taken for examination to see if any spermatozoa were available but there is no positive result in this regard. The accused was also examined within a period of 3 hours from the time of occurrence. There is no material from Exhibit P2 (his medical report) to suggest that he had committed any sexual act. On the other hand, there is no material to hold that there was penetration of male organ into the private part of the victim. Moreover and above all, the victim had not stated once that the accused committed rape on her. She stated to have been engaged in fight with the accused who proposed her to have sex with him in return of money. She stated that he gave her fist blows, pulled her and kicked her and she fought with him. Exhibit P2 injury report of the accused does not show a single sign of violence on his body. While there were injuries of abrasions and lacerations on different parts of the body of the victim, not a single scratch even of nail could be found on the body of the accused who was examined within a period of 2/3 hours of the alleged incident. Had there been any medical report to the effect that there were spermatozoa or seminal stain even in the cloth of the accused it would have been possible to hold that the accused at least attempted to commit rape or really committed rape on the victim. On the other hand, it is the case of the victim that after such fight, she became unconscious and did not say as to what was done by the accused on her body. Having admitted to the hospital, she found pain all over her body including her private part. It is pointed out above that there are laceration and abrasion all over her body including her genital area. There is nothing to hold that there was any penetration. Having admitted to the hospital, she found pain all over her body including her private part. It is pointed out above that there are laceration and abrasion all over her body including her genital area. There is nothing to hold that there was any penetration. The learned Public Prosecutor repeatedly argued that even partial penetration may constitute on offence of rape. But even that evidence is not available on record. The learned Public Prosecutor could not point out a single piece of evidence to indicate that there was penetration of male organ into the private part of the victim. She herself did not claim to have experienced such penetration. It is established preposition that howsoever strong a suspicion may be, it cannot take place of proof. Here in this case also whole trial proceeded on suspicion. 17. On perusal of the evidence on record and alter hearing learned counsel for the parties, I could not find out any material to come to the finding that the accused had committed the offence of rape on the person of the victim. It is necessary to point out here that this victim is a driver and he was taken into custody within 2/3 hours of the alleged occurrence on 7.7.2010 and since thereafter, he has been in custody till date. The trial proceeded while he was in custody; the judgment was delivered when he as in custody and today when this appeal was heard, he continued to be in custody. In the process, the accused is in custody for more than 3 years. 18. As pointed out above and on totality of circumstances, I do not find material to hold that the accused is guilty of committing any of the offences for which he was tried and hence, he is entitled to be acquitted. He is accordingly acquitted of both the charges. The judgment and order passed by the learned Addl. District and Sessions Judge is set aside. 19. Registry shall immediately send message to the Special Superintendent, Central Jail, Aizawl to release the accused today. 20. A copy of this judgment shall be sent to the jail after the same is transcribed and signed. Before parting, I must appreciate the valuable service rendered by Mr. K. Laldinliana, learned Amicus Curiae. The Mizoram Legal Services Authority shall make payment of Rs. 20. A copy of this judgment shall be sent to the jail after the same is transcribed and signed. Before parting, I must appreciate the valuable service rendered by Mr. K. Laldinliana, learned Amicus Curiae. The Mizoram Legal Services Authority shall make payment of Rs. 5000/- to the learned Amicus Curiae for the service rendered by him to this Court. Appeal allowed