JUDGMENT : H. Billappa, J. This appeal by the appellant-accused is directed against the judgment and order dated 30-1-2014 passed by the Principal District and Sessions Judge, Chickaballapur, in S.C. No. 25 of 2010. 2. By the impugned judgment and order, the learned Sessions Judge has convicted the appellant-accused for the offence punishable under Section 376(2)(f) of Indian Penal Code, 1860 and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 5,000/- and in default of payment of fine, to undergo R.I. for a period of one year. 3. Aggrieved by that, the appellant/accused has filed this appeal. 4. Briefly stated the case of prosecution is as follows: That P.W. 1-Karan Bahaddur is the father of the victim. He is the complainant. Ex. P. 1 is the complaint. In Ex. P. 1, it is stated, P.W. 1 was residing with his wife and children in the garden house of one Jagadish situated near Mastenahalli Village. He had three sons and two daughters. P.W. 3-Rathnamma is the wife of P.W. 1. The victim and one Kumari are the daughters of P.W. 1. The victim was studying in 5th Standard and Kumari was studying in 1st Standard. On 15-8-2009, P.W. 1 had gone to Kuppam to see his son Ganesh who was working there. P.W. 1 returned on 17-8-2009 in the afternoon. When he returned, his wife P.W. 3 informed him that on 15-8-2009, when she returned in the evening, the victim was weeping. When she questioned the victim, she told her that at about 4.00 p.m., on 15-8-2009, the accused took the victim to his house and had forcible sexual intercourse with her. P.W. 3 noticed injury on the private part of the victim. When P.W. 1 enquired his daughter, she told that on 15-8-2009, at about 4.00 p.m., the accused took the victim and her sister to his house and had sexual intercourse with the victim. P.W. 1 has requested to take action against the accused. Based on Ex. P. 1, a case in Crime No. 252 of 2009 of Chintamani Rural Police Station has been registered against the accused for the offence punishable under Section 376 of IPC. 5. After investigation, the charge-sheet has been filed against the accused for the offence punishable under Section 376 of IPC. 6. Based on Ex. P. 1, a case in Crime No. 252 of 2009 of Chintamani Rural Police Station has been registered against the accused for the offence punishable under Section 376 of IPC. 5. After investigation, the charge-sheet has been filed against the accused for the offence punishable under Section 376 of IPC. 6. At the trial, the prosecution has examined in all twelve witnesses i.e. P.W. 1 to P.W. 12 and Exs. P. 1 to P. 8 have been marked. On behalf of the accused, no evidence has been adduced. 7. The Trial Court on appreciation of the evidence on record has held the that appellant is guilty of the offence punishable under Section 376(2)(f) of IPC and has sentenced him to undergo R.I. for a period of 10 years and to pay a fine of Rs. 5,000/- and in default of payment of fine, to undergo R.I. for a period of one year. 8. Aggrieved by that, the appellant-accused has filed this appeal. 9. The learned Counsel for the appellant contended the that impugned judgment and order cannot be sustained in law. He also submitted the that Trial Court has failed to consider the evidence on record in proper perspective. Further he submitted the that lodging of complaint itself is doubtful. P.W. 12 has deposed that P.W. 1 lodged written complaint as per Ex. P. 1 and he registered a case based on Ex. P. 1 in Crime No. 252 of 2009. P.W. 1 has deposed the that complaint was written by the police and he signed it. He does not know where the complaint was typed. Further, he does not know the contents of the complaint. The investigation has proceeded on the basis of a false complaint and a false charge-sheet has been filed. Further he submitted the that evidence of P.Ws. 1 to 3 who are material witnesses is totally inconsistent, contradictory and suffers from serious infirmities. Therefore, the Trial Court was not justified in convicting the appellant-accused based on the evidence of P.Ws. 1 to 3. Further he submitted that none of the witnesses have deposed regarding the sexual act and there is no medical evidence. A false case has been foisted against the accused due to enmity in connection with financial matter and theft of vegetables in the garden land of the accused. 1 to 3. Further he submitted that none of the witnesses have deposed regarding the sexual act and there is no medical evidence. A false case has been foisted against the accused due to enmity in connection with financial matter and theft of vegetables in the garden land of the accused. Further he submitted the that doctor has deposed that she cannot give any definite opinion about the sexual act. It is in the evidence of P.W. 2 that her aunt and her mother took her to Kaivara Hospital and she was treated there. Nothing is produced to show as to what was the treatment that was taken at Kaivara Hospital. No explanation is forthcoming. He also submitted that it is not clear who sent the victim to Chintamani Hospital. The certificate shows that father of the victim accompanied her, but father of the victim has not stated that he accompanied victim to the Chintamani Hospital. Therefore, it is clear, the prosecution has failed to prove its case beyond reasonable doubt. Therefore, the Trial Court was not justified in convicting the appellant-accused for the offence punishable under Section 376(2)(f) of IPC. The impugned judgment and order cannot be sustained in law. In support of his submission, he placed reliance on the judgment of the Hon'ble Supreme Court in the case of Mohd. Ali alias Guddu v. State of Uttar Pradesh, (2015) 7 SCC 272 . 10. As against this, learned Government Pleader submitted the that impugned judgment and order does not call for interference. He also submitted the that Trial Court on proper consideration of material on record has rightly convicted the appellant/accused for the offence punishable under Section 376(2)(f) of IPC and therefore, the impugned judgment and order does not call for interference. Further P.Ws. 1 to 3 have deposed regarding the incident. The evidence of the victim shows that she was subjected to forcible sexual intercourse by the accused. The medical certificate shows there was rupture of hymen. Therefore, the Trial Court was justified in convicting the appellant/accused for the offence punishable under Section 376(2)(f) of IPC. The impugned judgment and order does not call for interference. 11. I have carefully considered the submissions made by the learned Counsel for the parties. 12. The medical certificate shows there was rupture of hymen. Therefore, the Trial Court was justified in convicting the appellant/accused for the offence punishable under Section 376(2)(f) of IPC. The impugned judgment and order does not call for interference. 11. I have carefully considered the submissions made by the learned Counsel for the parties. 12. The point that arises for my consideration is: Whether the Trial Court was justified in convicting the appellant-accused for the offence punishable under Section 376(2)(f) of IPC? 13. It is relevant to note, it is alleged, that on 15-8-2009, at about 4.00 p.m., the victim was taken to the pump house of the accused and there the accused had forcible sexual intercourse with the victim. 14. In the complaint, it is alleged, that on 17-8-2009, when P.W. 1 returned from Kuppam, his wife informed him that on 15-8-2009, at about 4.00 p.m., the accused took the victim to his house and had sexual intercourse with the victim. When P.W. 1 enquired, the victim told him that accused had forcible sexual intercourse with her. 15. The material witnesses are P.Ws. 1 to 3. 16. P.W. 1 is the father of the victim. He has deposed that on the date of alleged incident, the victim was taken by the accused. At that time, he was not in the house. He came next day. At that time, his brother Narabahaddur had taken the victim to the hospital as the victim was not well. The victim stayed in the house of his brother for about two days. Thereafter, the victim came to their house. The victim did not say anything to him. Again he has stated the that victim informed him the that accused took the victim to his house and had forcible intercourse with her. He has lodged complaint as per Ex. P. 1. Ex. P. 1(a) is his thumb impression. 17. P.W. 1 is cross-examined by the prosecution treating him as a hostile witness. In the cross-examination, P.W. 1 has admitted that on 15-8-2009, he had gone to see his son Ganesh at Kuppam. On 17-8-2009, he returned to his place. At that time, his wife told him that on 15-8-2009 she had gone to Kaivara and when she returned in the evening, the victim was weeping. On enquiry, the victim told her the that accused took her and had forcible sexual intercourse with her. On 17-8-2009, he returned to his place. At that time, his wife told him that on 15-8-2009 she had gone to Kaivara and when she returned in the evening, the victim was weeping. On enquiry, the victim told her the that accused took her and had forcible sexual intercourse with her. There was bleeding in the private part of the victim. When P.W. 1 enquired the victim, the victim told him the that accused took the victim and her sister to his house and had forcible sexual intercourse with the victim. He has stated the that victim was aged about 11 years. He gave complaint as per Ex. P. 1. 18. In the cross-examination by the accused, P.W. 1 has stated that his daughter was not well Therefore, his brother had taken her to the hospital. He has denied the suggestion that false complaint has been lodged taking advantage of the fact the that victim was bleeding due to menstruation. Further he has stated the that police wrote Ex. P. 1-complaint and he signed Ex. P. 1. He does not know the contents of Ex. P. 1. The police asked him to put his thumb impression and therefore, he put his thumb impression. Further he has stated that he does not know how to read or write Kannada. There was monetary transaction between the complainant and father of the accused. They used to demand money from the complainant. He has stated that his daughter is now married and he does not know where she is staying. He has denied the suggestion that a false complaint has been lodged as there was dispute between them and the accused in connection with stealing of vegetables from the land of the accused. 19. P.W. 2 is the victim. She has deposed that on the date of alleged incident, at about 4.00 p.m., the accused called the victim and her sister saying that he will give beans. The victim and her sister went with the accused. They were taken near the house of the accused. The accused took the victim inside the house, leaving her sister outside and bolted from inside. The accused removed the dress of the victim and loved her. Thereafter, the accused removed his dress also and switched off the light. Thereafter, the accused fell on the victim and loved her though she resisted. Thereafter, the accused assaulted the victim. The accused took the victim inside the house, leaving her sister outside and bolted from inside. The accused removed the dress of the victim and loved her. Thereafter, the accused removed his dress also and switched off the light. Thereafter, the accused fell on the victim and loved her though she resisted. Thereafter, the accused assaulted the victim. The victim went to her house weeping. At that time, her parents came. The victim revealed about the incident to her mother. She showed injury to her private part to her mother. Thereafter, she took bath. She did not reveal about the incident to her sister. Next day, the victim went to her aunt Kamalamma's house who is staying at Kaivara. The victim told about the incident to her aunt. At that time, the victim's mother was also there. Thereafter, the victim's aunt and her mother took the victim to Kaivara Hospital. Thereafter, the victim's father and his brother lodged the complaint. She has stated that spot mahazar was conducted as per Ex. P. 2 and she has signed Ex. P. 2 at Ex. P. 2(a). She does not know-how to write Kannada. At the time of incident, she was studying in 5th Standard. In her cross-examination, the victim, has stated, on the date of alleged incident, when she returned home at 4.00 p.m., her mother was in the house. She opened the gate. On that day, Independence Day was celebrated in her school. It was over by 12.00 O'Clock. Thereafter, she went to her friend's house and stayed there till 4.00 p.m., when she returned home at 4.00 p.m. her mother was there. She has admitted the suggestion that as the gate was locked, the accused could have come to her house only by jumping the fence or breaking the lock. Again she has stated that though the gate was locked there was another way. Further she has stated that before the police she has not stated that on the date of alleged incident at about 4.00 p.m., the accused took her and her sister saying that he would give beans and that she was taken inside the house and her sister was staying outside. She has not stated before the police the that accused removed her dress and loved her and thereafter, he switched off the light and though she resisted, the accused loved her. She has not stated before the police the that accused removed her dress and loved her and thereafter, he switched off the light and though she resisted, the accused loved her. Similarly, she has not stated before the police that she revealed about the incident before her mother. Further, she has not stated before the police as deposed by her at paras 2, 3 and 4 of her deposition. 20. P.W. 3 is the mother of the victim. She has deposed that on the date of alleged incident, when she returned from Kaivara in the evening, the victim told her the that accused took her and did VERNACULAR MATTER. The private part of the victim was bleeding. She took the victim to Kaivara. At Kaivara, her brother-in-law and his wife were staying. Thereafter, the victim was taken to Kaivara Hospital and she was treated by the doctor there. Next day morning her husband came and she revealed about the incident. In her cross-examination, P.W. 3 has stated the that victim's clothes were bloodstained and the clothes were handed over to the police. She has denied the suggestion the thatre was dispute between them and the accused with regard to stealing of the vegetables and also in connection with the money matter. She has stated before the police the that victim revealed to her the that accused took the victim and did She has not stated before the police the that private part of the victim was bleeding. Similarly, she has not stated before the police the that accused had forcible sexual intercourse with the victim. She has stated that her daughter is married and she does not know where she is staying. 21. The evidence of P.Ws. 1 to 3 who are material witnesses suffers from serious infirmities. It is full of omissions and contradictions. P.W. 1 has deposed that he had gone to Kuppam on 15-8-2009 to see his son and returned only on 17-8-2009. On the date of alleged incident, the victim was taken by the accused. At that time, he was not in the house. He came next day. His brother Narabahaddur had taken the victim to the hospital as she was not well. The victim has stated that after the incident, she went to her aunt's place Kaivara along with her mother. She was taken to hospital at Kaivara and she was treated there. At that time, he was not in the house. He came next day. His brother Narabahaddur had taken the victim to the hospital as she was not well. The victim has stated that after the incident, she went to her aunt's place Kaivara along with her mother. She was taken to hospital at Kaivara and she was treated there. P.W. 3 has also stated the that victim was taken to Kaivara and there she was taken to the hospital and treated there. Though all the witnesses have consistently stated that treatment was taken at Kaivara Hospital, nothing is produced to show as to what was the treatment, who treated the victim and what was the history that was furnished at the time of taking treatment at Kaivara Hospital. The evidence shows the that victim was taken to the hospital as she was unwell. Absolutely no explanation is forthcoming from the prosecution. It is a serious lapse. Further, it is clear, the evidence of P.Ws. 1 to 3 is full of omissions. Though the victim has deposed that she was taken by the accused and he had sexual intercourse with her, in her cross-examination, the victim has stated that she has not stated before the police the that accused took her to the pump house and had sexual intercourse with her. Therefore, the evidence of the victim with regard to the incident is an omission. Therefore, the evidence of the victim cannot be relied upon as it suffers from serious infirmity. Similarly, P.W. 3-the mother of the victim has deposed that she has not stated before the police the that victim revealed about the incident to her. Further, P.W. 11 has stated that P.W. 3 has not stated before him the that accused did VERNACULAR MATTER and the thatre was injury on the private part of the victim. Therefore, the evidence of P.W. 3 is full of omissions. It is an improvement before the Court. Therefore, the evidence of P.Ws. 1 to 3 is unreliable. Further, P.W. 1 has deposed the that police wrote Ex. P. 1-complaint and he signed it. He does not know where Ex. P. 1 was typed. He does not know the contents of Ex. P. 1. But, P.W. 12 has deposed that a typed complaint was lodged by P.W. 1 and a case was registered based on that. It is not clear, how Ex. P. 1-complaint and he signed it. He does not know where Ex. P. 1 was typed. He does not know the contents of Ex. P. 1. But, P.W. 12 has deposed that a typed complaint was lodged by P.W. 1 and a case was registered based on that. It is not clear, how Ex. P. 1 was lodged. The evidence of P.Ws. 1 to 3 suffers from serious infirmity and cannot be relied upon. 22. It is relevant to note, P.W. 3 has stated the that clothes of the victim were bloodstained and it was handed over to the police. What happened to these clothes is not known. 23. P.W. 5-Dr. P. Manjula has stated that on 17-8-2009, at about 7.00 p.m., Chintamani Rural Police had brought the victim for medical examination. The victim was accompanied by her father. Her father told the Doctor that she was subjected to rape about three days prior to that date. On examination, she noticed the thatre were no external injuries. External genitalia was normal. The hymen was ruptured. There was bleeding. The victim's father told the that incident occurred three days back and the victim has taken bath and changed the dress. Therefore, it is difficult to say whether there was rape or not. Ex. P. 4 is the certificate. Her signature is at Ex. P. 4(a). She cannot say whether the rupture of hymen was old or new as the victim did not cooperate for the medical examination. When she was asked whether the victim was raped or not, she has stated that it may be. In her cross-examination, P.W. 5 has stated the that date of examination is written as 16 and thereafter, it is corrected as 17. She has mentioned in the case-sheet the that consent of her father was obtained. But the same is not mentioned in the certificate. There is no mention in Ex. P. 4 the that victim was an inpatient. She has not mentioned about any marks on the person of the victim. 24. Ex. P. 4 is the wound certificate. It shows the that victim was accompanied by her father and she was examined. There were no external injuries. External genitalia was normal. There was hymen tear. Swab was not taken since the patient had bathed and clothes were washed. The Doctor has opined that definite opinion about sexual act cannot be given. 25. P. 4 is the wound certificate. It shows the that victim was accompanied by her father and she was examined. There were no external injuries. External genitalia was normal. There was hymen tear. Swab was not taken since the patient had bathed and clothes were washed. The Doctor has opined that definite opinion about sexual act cannot be given. 25. P.W. 6-Dr. Santosh Babu has stated that he examined the accused on 19-8-2009. The genital organ was normal and he had no disease of testis or venereal disease. He had well-marked secondary sex characters. There is nothing to suggest the that accused is not capable of performing sexual act. Ex. P. 5 is the certificate issued by P.W. 6. It shows the that accused was capable of performing sexual act. 26. The evidence of P.W. 5 shows the that victim had not suffered any external injuries. The genital was normal. The vaginal swab was not taken as the victim had taken bath. The Doctor has opined that she is unable to give any opinion about the sexual act. It is clear, there is no medical evidence regarding the sexual act. No doubt, P.W. 6 has opined the that accused was capable of performing sexual act. From that, it cannot be inferred the that victim was subjected to sexual intercourse. 27. P.W. 4-Narabahaddur who is the brother of the P.W. 1 has deposed that he does not know about the incident. P.Ws. 2 and 3 did not go to his house. P.W. 2 did not tell him about the incident. But his brother told him about the incident. He has not sent the victim to the hospital. 28. P.W. 7 has deposed the that victim was studying in fifth standard and her date of birth was 3-5-2000 and she has issued the certificate. 29. P.W. 8 who is the mahazar witness has turned hostile. His evidence is not useful in any way. 30. From the evidence on record, it is dear, the evidence of P.Ws. 1 to 3 is inconsistent and unreliable. The doctor has opined that she is unable to give any opinion about the sexual act. Nothing incriminating has been recovered. From the material on record, it cannot be inferred the that accused has committed alleged offence. Therefore, the conviction under Section 376(2)(f) of IPC cannot be sustained in law. 1 to 3 is inconsistent and unreliable. The doctor has opined that she is unable to give any opinion about the sexual act. Nothing incriminating has been recovered. From the material on record, it cannot be inferred the that accused has committed alleged offence. Therefore, the conviction under Section 376(2)(f) of IPC cannot be sustained in law. The prosecution has failed to prove its case beyond reasonable doubt. The Trial Court has failed to consider the evidence on record in proper perspective. Therefore, the impugned judgment and order cannot be sustained in law. 31. Accordingly, the criminal appeal is allowed and the conviction and sentence passed by the Principal District and Sessions Judge, Chikkaballapura in S.C. No. 25 of 2010 for the offence punishable under Section 376(2)(f) of IPC is hereby set aside. The appellant is acquitted of the charge under Section 376(2)(f) of IPC. The appellant shall be released forthwith, if he is not required in any other case. Communicate the operative portion of the judgment to the concerned jail authorities to release the appellant forthwith, if he is not, required in any other case.