JUDGMENT AND ORDER : Paran Kumar Phukan, J. Under assailment in this appeal is the judgment and order dated 03.01.2013 passed by the learned Assistant Sessions Judge, Morigaon in Sessions Case No. 42/2012 whereby, the learned court acquitted the accused of the offence u/s 376 (1) (b) of the IPC. 2. Accusation against the respondent No. 1 is that on the night of 22.07.2011, while respondent No. 1 Dr. Atul Ch. Pator was functioning as Medical Officer in Jhargaon PHE, he called the prosecutrix, a Nurse working in the said hospital who was attending a delivery case, to the seminar room of the hospital and as soon as she arrived near the door, he pulled her inside and closed the door and made her to sit on a chair and thereafter indulged in sexual intercourse with her and after satisfying himself while he was withdrawing his male organ, the prosecutrix slashed his organ with a blade which she kept concealed in her hand. 3. Immediately, after the incident, the prosecutrix informed about the same to police over telephone. Police arrived on getting the information and took the respondent No. 1 and the prosecutrix to police station. 4. On the next day, written FIR, Exbt. 1 was filed with the O/C, Jagiroad P.S. on the basis of which case was registered and on conclusion of investigation charge sheet was submitted against the accused respondent. 5. During trial which commenced before the learned Assistant Sessions Judge, the prosecution examined as many as 11 witnesses including 3 officials. Defence plea is that there were public complaints against the prosecutrix for dereliction of duty and she was warned by the respondent No. 1. But she continued to ill treat him which compelled him to lodge a complaint with the Joint Director of Health Services, Morigaon on 02.07.2011 copies of which was also given to the Deputy Commissioner and the police. Apprehending that action would be initiated against her, she has foisted this false case of rape against the respondent No.1. However, he declined to adduce any evidence in support of the plea. 6. Mr. Apprehending that action would be initiated against her, she has foisted this false case of rape against the respondent No.1. However, he declined to adduce any evidence in support of the plea. 6. Mr. A. K. Bhattacharjee, learned senior counsel appearing for the respondent No. 1 assailed the prosecution case from all sides, but main thrust of his arguments centered around the delay in filing the FIR, failure of the police to register any case on getting the verbal telephonic message from the prosecutrix of alleged commission of rape, non examination of the respondent No. 1 by doctor to ascertain the presence of injury on his private part, failure of the police to send semen stained cloth for DNA testing etc. 7. Per contra, learned Addl. PP emphatically submitted that there was no delay in filing the written FIR before police and whatever delay was there it was not due to the fault of the informant. It was contended that for non examination of the respondent No. 1 by doctor the entire prosecution case cannot be thrown out of consideration and the same principle also applies for inability of the police to send the cloths for DNA testing. Learned Addl. PP strenuously submitted that while evaluating the evidence of the prosecutrix the court must keep in mind that no self respecting woman would expose herself to shame and ignominy in the society by concocting a case of rape. 8. To bring home his submissions, he has referred to the decision of Hon'ble Apex Court in State of Punjab v. Gurmeet Singh reported in (1996) 2 SCC 384 wherein it has been observed as follows ::-- "A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practise incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction of her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence." 9. Referring to the above observation, learned Addl. PP, contended that the testimony of the victim in a case of rape is vital and on her sole testimony alone accused can be convicted for commissions of rape. 10. Before adverting to the submissions of the learned counsels, it would be essential to have an overview of the deposition of the prosecution witnesses, more particularly, the evidence of prosecutrix, who has been examined as PW 1. 10. Before adverting to the submissions of the learned counsels, it would be essential to have an overview of the deposition of the prosecution witnesses, more particularly, the evidence of prosecutrix, who has been examined as PW 1. Her evidence is that while she was discharging her duty as Nurse in the PHE, the accused respondent No. 1 who was a Doctor of the said hospital called her to the Seminar room of the hospital and as soon as she arrived near the door she was pulled inside and the accused respondent No. 1 made her to sit on the chair and thereafter had sexual intercourse with her by force. After satisfying himself while he was withdrawing his male organ she slashed the organ with a surgical blade which she carried in her hand. Immediately, after the incident she had given information to police over telephone, police came on that very night and took the respondent No. 1 and the prosecutrix to the Jagiroad Police Station. A written FIR was filed on the basis of which the case was registered and on completion of investigation charge sheet was submitted. Going further she had stated that on earlier occasions also the accused respondent No. 1 tried to commit rape on her. 11. In her cross-examination, she admitted having carried the blade inside the Seminar room. But strangely enough the blade was not used when she was pulled inside by the accused respondent No. 1. There is also no evidence that any resistance was offered by her when she was pulled inside the room or when the accused respondent No. 1 was indulging in sexual act. Her evidence reveals that night Chowkidar Tarun Deka and one Dr. Anita Boro were on duty with her but she stated that there was nobody when she raised alarm. At the same breadth she had stated that one attendant came looking for her but night Chowkidar Tarun Deka asked her not to disturb as she was with the Doctor inside the room which again belies her version that there was nobody in the hospital when she raised alarm. She could have easily attracted their attention by raising alarm but that was not done. She claims to have informed police about the occurrence over telephone immediately after the occurrence and police also arrived at night and took her and respondent No. 1 to the police station. She could have easily attracted their attention by raising alarm but that was not done. She claims to have informed police about the occurrence over telephone immediately after the occurrence and police also arrived at night and took her and respondent No. 1 to the police station. Her evidence in this regard is not corroborated by any other witness including the I.O. (PW 11) rather his evidence shows that no telephonic information was received by police from the prosecutrix regarding commission of rape on her. According to the I.O. the written FIR was received on 23.07.2011 in the morning and on that basis the case was registered. If her version that information was given soon after the occurrence before police over telephone and police also arrived is believed to be true, then it was a serious lapse on the part of the I.O. On receiving the information, he should have made a G.D. Entry at-least and on arrival at the spot he should have conducted investigation of the case on the basis of the G.D. Entry but that was not done which creates serious doubt regarding the credibility of the prosecution case. The genesis of the crime appears to have been suppressed either by the prosecutrix or by the I.O. but it cannot be held with certainly that telephonic information was given to police soon after the occurrence. Moreover, PW 2, Kanak Sarma, husband of the prosecutrix who was residing in a quarter situated near the hospital claims that his wife arrived at home at about 1 O'clock and disclosed about the incident to him and he along with his wife went to Jagiroad police station and lodged an FIR before police in connection with the case. The version of PW 2 is not supported by the prosecutrix and her evidence is that she had not disclosed about the incident to her husband. It is unusual for the wife not to disclose about such incident to her husband. But this is the evidence which she has adduced before the Court as a result of which implicit reliance cannot be placed on her evidence. 12. Mr. It is unusual for the wife not to disclose about such incident to her husband. But this is the evidence which she has adduced before the Court as a result of which implicit reliance cannot be placed on her evidence. 12. Mr. A. K. Bhattacharyya, learned senior counsel inviting my attention to the evidence of prosecutrix submitted that on earlier occasions also the accused respondent No. 1 committed rape on her as claimed by her but there is no evidence that she ever lodged any complaint before any authority regarding sexual harassment by the accused respondent and even no information was given to her husband regarding the commission of any such offence on earlier occasions. Non disclosure of such conduct of the appellant to any other person including her husband is indicative that she might have been a consenting party. There is also no evidence that she raised any protest or offered any resistance to the accused respondent while he made her to sit on the chair and indulged in sexual intercourse with her. Although, she claims to have slashed the male organ of the accused respondent but there is no corroborative evidence in this regard. Going further Mr. Bhattacharyya submitted that after insertion of section 53A in the Cr.P.C., by way of amendment w.e.f., 23.06.2006 it is incumbent on the part of the I.O. to get the accused examined by a doctor if there are reasonable grounds for believing that examination of the person will afford evidence of the commission of offence of rape. There has been flagrant violation of the mandates of law by the I.O. as contemplated under Section 53A of the Cr.P.C. When there was allegation of rape and slashing of the male organ by the prosecutrix with the blade which was seized by police from her he should have got the accused examined by doctor to ascertain presence of injury on his male organ and had the procedure been followed a fool proof case would have been made out. 13. Reverting back to the evidence of prosecution witnesses I have found that PW 3, Nurul Haque and PW 4 Fulbanu Begum were in the hospital at the time of occurrence in connection with a delivery case and they were informed by a nurse that the doctor had indulged in bad act with her and she slashed his male organ with a blade. It was the prosecutrix who had informed them about the occurrence and they had no personal knowledge. PW 7 Anita Boro was not in the hospital at the relevant time and on the next morning only she came to know that Doctor Patar and the night Chowkidar Tarun Deka were taken to police station by police which belies the version of the prosecutrix that she was present in the hospital at the time of occurrence. The evidence of the prosecutrix is also not corroborated by PW 8, night chowkidar who was present at the time of occurrence. His evidence is that on that night police visited the hospital and asked him to show the nurses duty room and accordingly he had shown the room to police. According to him, police took him and Doctor Patar to police station and on the next morning he was released. He had no knowledge regarding the occurrence. Similarly, PW 9 Narayan Das also could not say anything regarding the occurrence. 14. On a critical analysis of the entire evidence on record, it is found that apart from the prosecutrix, PW 1 there is no other evidence direct or circumstantial to connect the accused with the commission of the crime. From the evidence of the prosecutrix it comes to the fore that she neither raised alarm nor offered resistance and she claims to have slashed the male organ after the act was over. But her evidence is not corroborated by medical evidence and the accused was never produced before doctor to ascertain the same. Presence of injury on the private part of the accused would have proved the case to the hilt, but unfortunately that was not resorted to which casts doubt regarding veracity of the prosecution case. 15. Prosecution appears to have made a peculiar mode of investigation of the case. According to prosecutrix police visited the hospital in the night on getting the information from her over telephone but her evidence is not corroborated by the IO and there is nothing to show that any GD entry was made on getting the telephonic information from the prosecutrix. Prosecution appears to have made a peculiar mode of investigation of the case. According to prosecutrix police visited the hospital in the night on getting the information from her over telephone but her evidence is not corroborated by the IO and there is nothing to show that any GD entry was made on getting the telephonic information from the prosecutrix. According to her, she had not disclosed about the incident to her husband but her husband had stated that information was given to him in the night itself and he also went to the police station to lodge FIR with his wife which further makes the prosecution case doubtful. 16. Mr. Bhattcharyya, learned senior counsel has emphasised that in a case of such nature when allegation of rape has been brought against the accused respondent by a nurse against whom he had alleged misconduct and dereliction of duty the court should take great care and attention with regard to law and fact, while agreeing that rapist should not go unpunished, he has submitted that while evaluating the evidence of prosecutrix it must be ensured by the court that her evidence inspires full confidence in the mind of the court. He referred to the observation of the Apex Court in Rajinder @ Raju v. State of Himachal Pradesh reported in (2009) 16 SCC 69 wherein the Apex Court observed as follows:--- "9. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix in unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The court shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen." 17. Mr. Bhattacharyya, also submitted that when the Serologist (PW 8) who examined the wearing apparels of the prosecutrix found presence of semen, the I.O. should have sent the cloths for DNA examination along with samples of semen collected from the accused respondent. Relying on the decision of the Apex Court in Krishan Kumar Malik v. State of Haryana reported in AIR 2011 SC 2877 Mr. Relying on the decision of the Apex Court in Krishan Kumar Malik v. State of Haryana reported in AIR 2011 SC 2877 Mr. Bhattacharyya submitted that it was a serious lapse on the part of the I.O. Matching of semen of the accused respondent No. 1 with that found on the wearing apparels of the prosecutrix would have made it full proof case but matching was not done even though there are specific provision in the Cr.P.C. for doing so (Section 53A). The observation of the Apex Court is reproduced as under:-- "45. Now, after the incorporation of Section 53(A) in the Criminal Procedure Cod, w.e.f, 23.06.2006, brought to our notice by learned counsel for the Respondent-State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, event without the aforesaid specific provision in the Cr.P.C. prosecution could have still resorted to this procedure of getting the DNA test or analysis and matching of semen of the Appellant with that found on the undergarments of the prosecution to make it a foolproof case, but they did not do so, thus they must face the consequences." 18. As I have discussed above, the major lacuna in this case is that the accused respondent No. 1 was not produced before any doctor to ascertain the injury on his private part alleged to have been caused by the prosecutrix, the other distressing lacuna is failure of the I.O. to send the cloths for matching of semen to FSL for DNA test. Moreover, there is no evidence that wearing apparels of the prosecutrix were seized by police during investigation and no such seizure has been proved by the I.O. His evidence is also lacking to show that any such seizure was made. It is not known wherefrom the cloths were procured or seized and whether the cloths belonged to the prosecutrix. The way the investigation of the case was done is very distressing and displays total lack of sensitivity while conducting the investigation in a case of rape in such a slipshod manner. It is not known wherefrom the cloths were procured or seized and whether the cloths belonged to the prosecutrix. The way the investigation of the case was done is very distressing and displays total lack of sensitivity while conducting the investigation in a case of rape in such a slipshod manner. The Apex Court in Sunil Kundu and Anr., v. State of Jharkhand reported in (2013) 4 SCC 422 observed as follows:-- "It is true that acquitting the accused merely on the ground of lapses or irregularities in the investigation of a case would amount to putting premium on the depreciable conduct of an incompetent investigating agency at the cost of the victims which may lead to encouraging perpetrators of crimes. This Court has laid down that the lapses or irregularities in the investigation could be ignored subject to a rider. They can be ignored only if despite their existence, the evidence on record bears out the case of the prosecution and the evidence is of sterling quality. If the lapses or irregularities do not go to the root of the matter, if they do not dislodge the substratum of the prosecution case, they can be ignored. 19. In this case the lapses are serious in nature and the evidence of the prosecutrix is also not of sterling quality. The Trial Court elaborately discussed the entire evidence on record and I have not noticed any perversity in the judgment of the Trial Court. It is well settled that the appellate Court would not be justified in interfering with the order of acquittal unless same is found to be perverse. In Ghurey Lal v. State of U.P. reported in (2008) 10 SCC 450 the Apex Court provided the guidelines for the appellate court in dealing with the cases in which the Trial Court have acquitted the accused. Following principles emerged from the case- (1) The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent. (2) The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the appellate court must give due weight and consideration to the decision of the trial court. (2) The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the appellate court must give due weight and consideration to the decision of the trial court. (3) The appellate court should always keep in mind the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses. (4) The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. (5) If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused. 20. In the case of State of Rajasthan v. Nares reported in (2009) 9 SCC 368 the Apex Court laid down as under:-- "20…..An order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused. This court has dealt with the scope of interference with an order of acquittal in a number of cases". 21. The Apex Court in Aruvelvely and Anr., v. State reported in (2009) 10 SCC 206 on the subject held as under:-- "36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment cannot be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law." 22. Mr. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law." 22. Mr. Bhattahcharyya, learned senior counsel has submitted that the learned trial court has taken a reasonable view while acquitting the accused which calls for no interference in this appeal I have found, on scrutiny of the judgment of the learned trial court that the court has considered all the pros and cons and came to the finding that there were several discrepancies, disturbing features which are fatal to the prosecution and on consideration of the evidence on record, order of acquittal has been passed. Relying on the judgment of the Apex Court in Tota Singh and anr., v. State of Punjab reported in (1987) 2 SCC 529 Mr. Bhattahcharyya submitted that the view taken by the learned trial court is plausible one, the appellate court cannot legally interfere with the order of acquittal. 23. Apex Court in the above mentioned case observed as follows:-- "The High Court has not found in its judgment that the reasons given by the learned Sessions Judge for discarding the testimony of P.W. 2 and P.W. 6 were either unreasonable or perverse. What the High Court has done is to make an independent reappraisal of the evidence on its own and to set aside the acquittal merely on the ground that as a result of such reappreciation, the High Court was inclined to reach a conclusion different from the one recorded by the learned Sessions Judge. This Court has repeatedly pointed out that the mere fact that the Appellate Court is inclined on a re-appreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the Court below will not constitute a valid and sufficient ground for setting aside the acquittal. This Court has repeatedly pointed out that the mere fact that the Appellate Court is inclined on a re-appreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the Court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the Appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and is, therefore, liable to be characterized as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the Court below has taken a view which is a plausible one, the Appellate Court cannot legally interfere with an order of acquittal even it is of the opinion that the view taken by the Court below on its consideration of the evidence is erroneous. 24. Keeping in view the principles laid down by the Apex Court and having considered the submissions of the learned counsel appearing for both the sides and having gone through the evidence on record and on perusal of the impugned judgment of the learned trial court and in view of all my discussions above, I find and hold that there is no infirmity in the judgment passed by the learned trial court which calls for interference in this appeal. 25. Consequently, the appeal is dismissed. 26. Send down the LCR along with a copy of judgment.