ADITYA KUMAR TRIVEDI, J.:–Sole appellant Gauri Shankar Mandal has been found guilty for an offence punishable under Section 376 of the I.P.C. and directed to undergo rigorous imprisonment for seven years and to pay fine appertaining to Rs.10,000/- and in default thereof, to undergo imprisonment for six months, additionally, vide judgment of conviction dated 17.02.2017 and order of sentence dated 23.02.2017 passed by the Additional Sessions Judge-1st, Supaul in Sessions Trial No.01 of 2014. 2. Shanti Devi (PW-4) filed written report alleging inter alia that his daughter (name withheld being victim) was married with Jeytish Paswan of village-Ghurna about four years ago. Unfortunately, she became partial insane whereupon she was deserted by her sasuralwala. Since then, she was staying with her. Her neighbour Yogendra Mandal has got rice mill, flour mill as well as grocery shop. Her daughter used to visit his shop for grinding wheat, purchase of household items and during course thereof, Gauri Shankar Mandal began to allure her and after assuring that he will marry with her, developed physical intimacy and continued it for the last one year as a result of which, her daughter became pregnant. After perceiving her abnormal physical appearance, she made query, whereupon detailed the event. Then thereafter, they had gone to the place of Gauri Shankar Mandal where Gauri Shankar Mandal, his brother Sanjay Mandal, Hare Ram Mandal, father Yogendra Mandal and mother Jithi Devi abused them as well as they also chased to assault. 3. After registration of Bhimpur P.S. Case No.15 of 2012, investigation taken up and after completing the same, chargesheet was submitted paving the way for trial before the Court of Sessions wherefrom, vide the judgment impugned, others were acquitted. However, finding of guilt followed with sentence has been recorded against the appellant, subject matter of instant appeal. 4. Defence case as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial of the occurrence. Furthermore, it has been pleaded that this case has been filed with ulterior motive in order to satisfy their personal grudge, vendetta as well as out of political rivalries in the background of the fact that Nani (maternal grandmother) of the victim namely Gulabi Devi had fought Mukhiya Election against Jiwachhi Devi, mother of the appellant. However, neither oral nor the documentary evidence has been adduced on his behalf. 5. However, neither oral nor the documentary evidence has been adduced on his behalf. 5. In order to substantiate its case, prosecution had examined altogether eight PWs, out of whom, PW-1 Shambhu Mandal, PW-2 Bablu Paswan, PW-3 Jagdish Paswan, PW-4 Shanti Devi, PW-5 Shyam Sundar Paswan, PW-6 Rambha Devi, PW-7 Dr. Reeta Singh and PW-8 Jitendra Kumar. Side by side, had also exhibited the document as Exhibit-1 injury report, Exhibit-2 (wrongly mentioned as Exhibit-1) endorsement over the written report. 6. During course of hearing of this appeal, it has been found that with regard to status of the victim, there happens to be initial version regarding her mental status that she happens to be partial insane and on account thereof, she was deserted from her sasural. To search out the positive evidence on that very score, L.C. Record has properly been scrutinized. After perusal of the same, it is evident that though in the judgment impugned, there happens to be reference of mental condition of the victim duly acknowledged by the Court to be mentally retarded, but on that very score, neither the Court on its own recorded demeanor of the witness, PW-6 (victim) as prescribed under Section 280 of the Cr.P.C. nor during course of evidence of doctor (PW-7), the learned lower Court by way of exercising its extra-ordinary power in accordance with Section 165 of the Evidence Act questioned over the mental state of the victim, PW-6. Furthermore, it is also evident that before examination of PW-6, the Court also failed to enquire with regard to mental state of the victim, although her appearance on the first day was completely blanked which is apparent from the deposition form whereupon, an adjournment was granted. To appreciate the same, her statement under Section 164 of the Cr.P.C. available on the record has also been gone through and the same exposes the event of hallucination on account of being contrary to the narration as flashed by PW-4, though substantiated the factum of rape (poses gangrape). 7. Accordingly, with the aid of Section 118 of the Evidence Act whereunder identification, status of a witness is found duly acknowledgeable, save and except, in exceptional cases including being lunatic. In the aforesaid facts and circumstances, learned counsel for the appellant as well as learned Additional Public Prosecutor have been requested to assist the Court properly to arrive at just conclusion. In the aforesaid facts and circumstances, learned counsel for the appellant as well as learned Additional Public Prosecutor have been requested to assist the Court properly to arrive at just conclusion. During course thereof, three questions have been put forward:— (a) So for trial of an insane accused is concerned, the trial is to be held up, till he suffers from insanity whether such opportunity is available to a witness deffering her/ his examination till having been properly cured from mental ailment. (b) Whether the evidence be outrightly rejected identifying the mental infirmity irrespective of status of the witness. (c) Whether trial court be directed to record evidence of victim after her medical examination ascertaining mental state. 8. The learned counsel for the appellant made two fold argument, the first one relates with proprietary of the evidence of the victim (PW-6) and submitted that though there happens to be some sort of lapses at the end of the learned lower Court on that very score, in properly appreciating whether PW-6 (victim) was suffering from insanity at the time of her evidence, though she on first day shown unusual activity whereupon, the case was adjourned and so, as per principle laid down in Kanhaiyalal Sewaram, Appellant Vs. State reported in A.I.R. 1953 Madhya Bharat 262, it has been submitted that the evidence of victim (PW-6) is liable to be rejected and for that, referred Para-4 thereof, which reads as follows:— “(4) Out of the two witnesses, Madhva, P.W. 16 was not produced before the learned Sessions Court. His statement in the committing Court had been transferred to the Sessions file under S. 33, Evidence Act. It is well settled that before the Sessions Judge can transfer a statement he must record a finding that any of the circumstances enumerated in S.33 existed and unless he is so satisfied on evidence led before him, the power vested in him under S.33 cannot be exercised.- “Saudagar Singh Vs. Emperor‘, AIR 1944 Lah 377(A). When a witness is material (in this case the eye witness Madhva was a material witness) justice requires that the witness, if possible, be examined in the trial in the presence of the accused. Emperor‘, AIR 1944 Lah 377(A). When a witness is material (in this case the eye witness Madhva was a material witness) justice requires that the witness, if possible, be examined in the trial in the presence of the accused. The learned Sessions Judge has admitted the evidence of an absent witness on the application of the Public Prosecutor, and the application alleged that something had gone wrong with the mind of the witness Madhva and that he was not in a condition that he may answer the questions correctly in the Court. A report of the Assistant Medical Officer Shujalpur was also submitted to the Court along with the application. This report dated 7-10-1952 that after some days‘ observations in the Hospital, full report could be sent. During these days, the learned Sessions Judge was recording the evidence in the case and he could have easily seen the eye-witness himself when he was at Shajapur, in order to satisfy himself whether he was competent to testify and could understand the questions put to him. The explanation appended to S. 118, Evidence Act is quite clear on the point that a lunatic when he is in lucid intervals is not incompetent to testify, if he can understand and rationally answer the questions put to him. The Doctor could have been, but was not examined in the Court. The Police constable Kanhaiyalal P.W.15 and P.W.3 Bhanwarji were procured in the Court and as lay men they said “his mind had gone wrong”. This may mean nothing. The learned Judge did not care to arrive at the finding whether it was a case of general or partial insanity, whether the delusions were multifarious and of the wildest and most irrational character, abundantly indicating that the mind was diseased throughout or, while the mind may have been overpowered by delusions, though may be the offspring of mental disease and so far constituted insanity, yet left the individual in all other respects rational and capable of transacting the ordinary affairs and fulfilling the duties and obligations incidental to the various relations of life, and, during lucid intervals, the witness was not prevented by partial unsoundness of the mind from understanding the questions put to him and giving rational answers to them. From a perusal of the judgment of the learned Sessions Judge, it appears, though not clearly, that the learned Judge was of opinion that the witness was incapable of giving evidence because of insanity. In such cases the provisions of S.118 could not have been ignored, and in my opinion, where a witness is declared incapable of giving evidence owing to insanity it is the duty of the Court to record its finding that the witness is prevented by his lunacy from understanding the questions put to him and giving rational answers to them. The fact that the witness had become incompetent to testify and so incapable of giving evidence must be proved strictly. As their Lordships observed in –Chainchal Singh Vs. Empress‘, AIR 1946 PC 1 (B) in a civil case a party, if he chooses, can waive the proof, but in a criminal case strict proof ought to be given that the witness is incapable of giving evidence. Their Lordships further observed that the fact that the counsel of the accused consented to the evidence of the witness being read under S.33 in the Sessions Court does not do away with the necessity of the Court being satisfied by proof that the witness was incapable of giving evidence. In my opinion the learned Sessions Judge was wrong in admitting the evidence of Madhva P.W. 16 under S.33, Evidence Act, without himself seeing the witness or without examining the doctor who had sent the report to the Public Prosecutor. It is clear that sufficient foundation was not laid for the reception of the previous deposition of Madhya in this case and I have therefore to exclude it from consideration.“ 9. Also referred Rana Ranjeet Singh Vs. the United India Insurance Co. Ltd. & Ors. reported in 2015(3) P.L.J.R. 305 (High Court), but this judgment is not going to help the appellant on that very score. 10. The second leg of argument is that the trial Court be directed to get the victim examined by the doctor and after being satisfied, she be re-examined, and for that, after setting aside the judgment impugned, matter be remitted to the learned lower Court. 11. 10. The second leg of argument is that the trial Court be directed to get the victim examined by the doctor and after being satisfied, she be re-examined, and for that, after setting aside the judgment impugned, matter be remitted to the learned lower Court. 11. At the other hand, the learned Additional Public Prosecutor submitted that as the learned lower Court acted contrary to law on account thereof, the matter be remitted back to the learned lower Court after setting aside the judgment impugned to proceed afresh with regard to PW-6, the victim with a further direction to get her examined by a medical board headed by Civil Surgeon himself, who will report the matter and thereupon, the Court will pass necessary order to the effect whether her evidence is to be recorded or not and if so, be directed to record evidence afresh, hear the parties, pass judgment in accordance of law. 12. Without adverting to merit of the case, after going through the L.C. Record, hearing the parties, the first and foremost question relates with legality, admissibility of the evidence of PW-6, the victim and further, the subsequent event to be followed. From the written report itself, it is evident that the victim, who was married much earlier, was deserted by her sasuralwala on account of becoming partial insane and thereupon, she was staying at the place of her Naihar. 13. Although, there happens to be special provision prescribed for trial relating to insane, lunatic, accused under the Criminal Procedure Code, properly identifiable under Chapter-XXV, but so far status of witness/ victim is concerned, there happens to be no such provision available under the Criminal Procedure Code guiding the affair. Furthermore, under the Evidence Act, Section 118 permits all the persons to be competent witness unless he/ she is forbidden by any legal deficiency or on account of being lunatic. That means to say, the witness being lunatic would not be allowed to depose as, did not stand to the test till he is cured, or during the intervening period where under the witness is found out of grip of lunar effect. However, no such provision is found relating to insane, category of witness. That means to say, the Court has to perceive whether on account of being lunatic, the witness is unable to proper understanding. However, no such provision is found relating to insane, category of witness. That means to say, the Court has to perceive whether on account of being lunatic, the witness is unable to proper understanding. In likewise manner, when Section 375 of the I.P.C. is being considered, it is evident that consent which the victim was incompetent to give on account of unsoundness of mind would not be a valid consent. For better appreciation, Section 118 of the Evidence Act as well as Section 375 of the I.P.C. is quoted below:— 118 Who may testify.—All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Explanation.— A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them. 375. Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:— (First) — Against her will. (Secondly) —Without her consent. (Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. (Fourthly) —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. (Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. (Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. (Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. (Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.] STATE AMENDMENT (Manipur) —(a) in clause sixthly, for the word “sixteen” substitute the word “fourteen”; and (b) in the Exception, for the word “fifteen” substitute the word “thirteen”. [Vide Act 30 of 1950, sec. 3 (w.e.f. 16-4-1950) (made earlier than Act 43 of 1983)]. COMMENTS Absence of injury on male organ of accused Where a prosecutrix is a minor girl suffering from pain due to ruptured hymen and bleeding vagina depicts same, minor contradictions in her statements they are not of much value, also absence of any injury on male organ of accused is no valid ground for innocence of accused, conviction under section 375 I.P.C. proper; Mohd. Zuber Noor Mohammed Changwadia Vs. State of Gujarat, 1999 Cr LJ 3419 (Guj). Penetration Mere absence of spermatozoa cannot cast a doubt on the correctness of the prosecution case; Prithi Chand Vs. State of Himachal Pradesh, (1989) Cr LJ 841: AIR 1989 SC 702 . 14. The learned lower Court as is evident had not taken recourse to record demeanor of the victim as prescribed under Section 280 of the Cr.P.C. which could have enable the Court to perceive the mental condition of the victim. Irrespective of the fact that till then the material which was available on the record by way of written report whereunder desertion by sasuralwala of the victm was duly incorporated on account of partial insanity. The learned lower Court failed to acknowledge and further, did not care to see the behavioral attitude of the victim, when she firstly stood before the Court as PW-6, who was completely obtund on the first day of her presentation, whereupon adjournment was granted. It is also apparent from the L.C. Record that there happens to be slackness at the end of the Investigating Officer in getting the victim medically examined over her mental condition, which was known since before and that happens to be reason behind that the doctor, a gynecologist, who deposed as PW-7 had not spoken a word on that very score. This happens to be a crucial aspect as a consent of the victim which was unfit to assent on account of unsoundness of mind, which has been duly acknowledged under Section 375 of the I.P.C. could have proper application which the judgment impugned snickly dealt with. 15. Insanity as well as lunacy is two different events. Section 118 of the Evidence Act deals with lunacy and not insanity. Lunacy happens to be intermediary in nature, while insanity is not. Insanity may be of different kinds, which has been properly identified under Modi Medical Jurisprudence & Toxicology. So, the question now remains to be answered is, being layman, the rustic illiterate villagers are not in a position to identify as well as bifurcate the aforesaid two kinds of mental disorder. That being so, its impact over admissibility of evidence, if the witness is being examined, is to be properly adjudicated upon, and further, the activity of the Court before recording of evidence relating to the particular witness have also to be pin-pointed. In likewise manner, whether the trial Court should wait till witness is cured likewise the status of an accused so prescribed under Chapter-XXV, in case, witness is found insane. This issue happens to be of great importance as well as will have vast impact over trial and further, the matter still not been properly taken up and decided in its conclusiveness on account thereof, needs to be answered by way of authoritative pronouncement and so, that matter is referred to Division Bench. 16. Accordingly, office is directed to place the matter before Hon’ble the Chief Justice.