JUDGMENT Hon’ble Sudhanshu Dhulia, J. (Oral) 1. This is a jail appeal arising out of judgment and order dated 14.10.2011 passed by learned Additional Sessions Judge/IVth F.T.C., Dehradun in Session Trial No. 196 of 2010, State Vs Bhagat Singh whereby the accused/appellant has been convicted under Section 376/506 of I.P.C. and sentenced for ten years of rigorous imprisonment for the offence punishable under Section 376 of I.P.C. and rigorous imprisonment for five years for the offence punishable under Section 506 of I.P.C. 2. This is a jail appeal and there was no one to represent the appellant. Hence, this Court appointed Mr. Tapan Singh, Advocate, as Amicus Curiae to assist this Court on behalf of the appellant, who assist this Court to the best of his ability, but later on this Court also called for the assistance of Mrs. Pushpa Joshi, Senior Advocate as Amicus Curiae to assist the Court. They have done their best to assist the Court in the present matter. 3. What complicates the matter and has thereby caused an extended hearing in the matter is this: 4. The victim at the time of the alleged crime was 80 years old woman and the accused was 55 years old man, who is said to have committed this rape. But this is not all; the accused is also the son of the victim! 5. The First Information Report was lodged on 16.07.2010 by the prosecutrix – Smt. Maina Devi alleging therein that on the intervening night i.e. 14/15.07.2010, when she was raped by her son (appellant – Bhagat Singh) twice on that fateful night with whom she was residing, and thereafter he threatened her of dire consequences, if she dared to report about the incident to anyone. Her grandson – Raju, who generally stays out from the house due to the nature of his work, came to the house on 16.07.2010, when she (victim) narrated the incident to him and thereafter with the help of her grandson she has lodged the First Information Report against the accused/appellant. Her evidence was recorded under Section 164 of Cr.P.C. before the Magistrate where she said that she has been raped by her son and she did not need to say anything more. The accused/appellant was arrested on 18.07.2010 and since then he is in jail. 6. Her evidence was recorded under Section 164 of Cr.P.C. before the Magistrate where she said that she has been raped by her son and she did not need to say anything more. The accused/appellant was arrested on 18.07.2010 and since then he is in jail. 6. After completing the investigation chargesheet was submitted by the Investigating Officer before the learned Magistrate and thereafter the learned Sessions Judge framed the charges against the accused on 08.11.2010 under Sections 376/506 of I.P.C. Thereafter, the matter was transferred to Additional Sessions Judge/IVth F.T.C., Dehradun. 3 7. The prosecution in order to establish its case examined as many as seven witnesses. The defence also came up with two witnesses. 8. The first testimony, which would be relevant for the present case is of Smt. Maina Devi (P.W.1), the prosecutrix. According to her, she was raped by her son (appellant) on the fateful night of July 14, 2010. For the first time in her testimony she says that at the time of alleged incident the accused was under the influence of alcohol, he was drunk. She says that her husband had died 14 years back and she has seven children, out of the wedlock of which four are girls and three are boys. One of her son, namely, Bhagat Singh (appellant) raped her in the night of 14.07.2010. She further states that at the time of the commission of this offence she was also beaten by the accused. She also sustained injuries on her private parts. After the said incident blood also started oozing out from her vagina, which carried a very foul smell. 9. Raju (P.W.2), who is the grandson of the prosecutrix, was examined on 01.03.2011, who states that he is a driver by profession and usually stays away in the night as the nature of his profession is such. On 16.07.2010 his grandmother was staying with his father at their village in Timli. He reached home in the morning of 16.07.2010, and met his grandmother who informed him about the incident, and the fact that his father had raped her. He then took her to a hospital for medical examination and then to the police station in order to lodge a report about the incident. His statement under Section 164 Cr.P.C. was also recorded before the Magistrate, which is exhibit Ka-3 available on record. 10. Dr. He then took her to a hospital for medical examination and then to the police station in order to lodge a report about the incident. His statement under Section 164 Cr.P.C. was also recorded before the Magistrate, which is exhibit Ka-3 available on record. 10. Dr. Mamta Pangte (P.W.3), who has medically examined the prosecutrix on 17.07.2010 at Women Hospital, Dehradun, says no definite opinion about rape could be given though the appearance showed that she was subjected to sexual intercourse. 11. During the examination of the accused, which has a medical relevance, it is admitted by the prosecution that the accused had undergone vasectomy about 20 years back and for this, a piece of land has been allotted to him by the Government, which is also a subject matter of dispute in the family, i.e. the land. 12. The accused, while in custody made a request that he should also be medially examined and as such he was medically examined on 16.05.2011 by Dr. Sushma Joshi (D.W.1), where his fresh semen were taken and pathological test was conducted, where it was found that no sperms were detected and for spermatozoa it was negative. 13. On the other hand Dr. Sunita Singh (P.W.5), who was posted at Women Hospital, Dehradun as Pathologist states that after conducting the pathology test on the victim on 18.07.2010 two slides of vaginal smear were prepared and which are positive of spermatozoa, and the report bears her signature. 14. It is their conflicting medical evidence, which is puzzling. If the accused had undergone vasectomy, which is admitted, how can spermatozoa be present in the pathology report on the vaginal smear taken from the body of the prosecutrix two days after the incident! Further the later medical tests, including pathological test of the sperm of the accused shows that it is negative of “spermatozoa”. 15. Rest are the formal witnesses, such as, Ms. Mamta Saini (P.W.4) - constable, who took the prosecutrix to the hospital, Sub-Inspector – Prakash Shah (P.W.6) who conducted the investigation, Constable Basu Dev Singh Rana (P.W.7) who written the complaint of the victim. 16. The accused/appellant has produced Dr. Sushma Joshi (D.W.1) and Bhagat Singh (D.W.2) - appellant in support of his case. 17. Dr. Mamta Saini (P.W.4) - constable, who took the prosecutrix to the hospital, Sub-Inspector – Prakash Shah (P.W.6) who conducted the investigation, Constable Basu Dev Singh Rana (P.W.7) who written the complaint of the victim. 16. The accused/appellant has produced Dr. Sushma Joshi (D.W.1) and Bhagat Singh (D.W.2) - appellant in support of his case. 17. Dr. Sushma Joshi (D.W.1) was posted at Doon Hospital as Pathologist, who examined the accused – Bhagat Singh on 16.05.2011 and fresh semen of the accused was taken for the purpose of pathology test. She found no sperms were detected and spermatozoa found negative. 18. Bhagat Singh (D.W.2) is the accused/appellant. He states that he has been falsely implicated in the commission of rape. He further states that he has been implicated because he wants to give his entire property to Layak Ram and Ramesh, who are his children from his first marriage, whereas his mother and his second wife as well as Raju wants the property in the name of Raju and Balbir. Only for this reason he has been falsely implicated in the crime. 19. It is undoubtedly true that in a case of rape, sole testimony of the prosecutrix is sufficient to establish the charges against the accused and a conviction can be based on the sole testimony of the prosecutrix. Therefore, the testimony of the prosecutrix as well as the entire testimony, including the testimony of D.W.2 i.e. accused/appellant has been very closely examined. 20. All the same, there are facts which complicate the matter, such as the victim/prosecutrix being 80 years of age and the accused, her son, who was about 55 years of age at the time of the alleged incident. On the other hand the scientific evidence which has been gathered and placed before the trial court tell a different story. It is an admitted fact that the accused had under gone vasectomy, about 20 years prior to the alleged incident. Although there are a chances of failure in such cases, but the percentage of failure is extremely low. Moreover, on the application of the accused, when he was in jail at the relevant time, he was medically examined and it was found in the pathological test done on him that his semen did not contain spermatozoa, which shows that his vasectomy was successful. Moreover, on the application of the accused, when he was in jail at the relevant time, he was medically examined and it was found in the pathological test done on him that his semen did not contain spermatozoa, which shows that his vasectomy was successful. Although, the viginal smear of the victim tests positive of spermatozoa, the fact remains that this spermatozoa is of the accused has not been established. 21. Reasonable doubt always belongs to the accused. This has not been given to him in this case. Human nature and human psychology is such that it would never fail to baffle us, such as the prosecution story in the present case. What can, however, never be in doubt is clear scientific evidence. Spermatozoa, or lack of it, makes all the difference as it has in the present case. This Court is of a considered view that under these circumstances a benefit of doubt should have been given to the accused. 22. Hence, the appeal is allowed. The impugned judgment and order dated 14.10.2011 thereby convicting the accused/appellant under Sections 376/506 of I.P.C. and sentencing him for ten years rigorous imprisonment is hereby set aside. Accordingly, the accused/appellant is acquitted of the offence under Sections 376/506 I.P.C. The appellant is in jail. He shall be released forthwith. Lower court records be sent back for compliance of the judgment.