JUDGMENT : M.G. Giratkar, J. 1. Appellant assailed his conviction awarded by learned Additional Sessions Judge, Nagpur in Sessions Trial No. 214/2002 by which he is convicted for the offence punishable under Section 376 read with Section 511 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for four years and also to pay fine of Rs. 3000/- in default to suffer rigorous imprisonment for a further period of three months. He is further convicted for the offence punishable under Section 448 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for six months and also to pay fine of Rs. 1000/- in default to suffer further rigorous imprisonment for a period of one month. 2. The case of the prosecution against the appellant can be summarized as under. (i) Victim was residing with her parents in a rented premises of the appellant. Before the reported incident, appellant tried to do sexual intercourse with the victim, aged about 10 years but she did not disclose to anybody. On the day of incident i.e. on 24-11-2001, victim returned from the school at about 12.00 in the afternoon, after lunch, she was sleeping. Appellant entered in the room. He uplifted her dress, removed her underwear. He was inserting his penis into her vagina. Mother of Rahul came to the spot. Appellant was in nude condition. He ran away. Her mother came to house in evening. Victim narrated incident to her. Mother of victim along with other ladies went to Police Station, Ambazari and lodged the report. (ii) Victim was examined thrice by the Medical Officer. She was examined on 27-11-2001 by the Medical Officer. He issued certificate stating that "no evidence of any injury mark on private part, no evidence of injury marks on body, hymen is intact, sexual intercourse has not taken place with the said patient". (iii) The complainant again taken the victim to Mayo Hospital. P.W. 2 Dr. Nivedita Kulkarni examined her on 29-11-2001 and issued certificate, Exhibit 19 stating that "hymen was torn. This is most probable due to repeated sexual intercourse. There is no possibility of any other reason." Again she was examined by the Medical Officer on 1-12-2001. In the certificate, Exhibit 58, Medical Officer found that "there was no injury fresh or old on body. This is most probable due to repeated sexual intercourse. There is no possibility of any other reason." Again she was examined by the Medical Officer on 1-12-2001. In the certificate, Exhibit 58, Medical Officer found that "there was no injury fresh or old on body. There were no markings of injury old or new on abdomen or thigh, groin pubic hair and axillary hair not developed. No bleeding or discharge from vagina. No hymen injury. Hymen intact." (iv) Complainant and Mahila Mandal insisting to register the crime against appellant. Crime was registered. ACP Chavan investigated the crime. After complete investigation filed charge-sheet before the Chief Judicial Magistrate, Nagpur who, in turn, committed the same to the Court of Sessions for trial. (v) Trial Court framed charge at Exhibit 3. Same was read over and explained to the accused/appellant. He pleaded not guilty and claimed to be tried. Defence appears to be of false implication. At the conclusion of trial, learned trial Court convicted the accused/appellant as stated above. 3. Heard learned counsel Shri A.S. Ambatkar appearing with learned counsel Shri P.R. Agrawal for the appellant. He has pointed out contradictory medical certificates on record. He has pointed out material omissions and contradictions in the evidence of witnesses. Learned counsel has submitted that appellant was landlord. He was insisting to vacate the premises, therefore, he is falsely implicated by the complainant. 4. Heard learned Additional Public Prosecutor Shri Patil for the State/respondent. He has supported the impugned judgment. 5. Evidence of P.W. 1 victim shows that she was a tutored witness. She has stated in her evidence that before the incident, there was such type of incident for two times but she did not disclose to anybody. From the situation of the spot, it was not possible for the appellant to do such act. It was a small house. Appellant along with his parents, sister, wife and children were residing in one part of the house. There were other two tenants residing in a single room. There was only one latrine. It was not possible in such situation to do such heinous act. 6. Victim has stated in her evidence that appellant removed her clothes and inserted his penis into her vagina, mother of Rahul came to her house and thereafter appellant ran away. It is pertinent to note that who was mother of Rahul not explained by the prosecution. It was not possible in such situation to do such heinous act. 6. Victim has stated in her evidence that appellant removed her clothes and inserted his penis into her vagina, mother of Rahul came to her house and thereafter appellant ran away. It is pertinent to note that who was mother of Rahul not explained by the prosecution. Her cross-examination shows that she along with her mother went to Police Station twice. Her mother narrated the incident to police. Police did not ask anything to her. Whatever query was made by police was from her mother and one lady Sitabai. Her cross-examination shows that she was not interrogated by the police. 7. P.W. 2 Dr. Nivedita Kulkarni has stated that she examined the victim on 29-11-2001 and she issued Medical Certificate, Exhibit 19 in which she has stated as under. (1) Exam showed her hymen was torn and patulous. This most probably was due to repeated sexual intercourse. There is no possibility of any other reason for such patulous hymen. (2) Patulous hymen is due to repeated sexual assault. There was no evidence of any fresh injury. 8. P.W. 3 Sou. Manisha Pendure has stated that Kantabai came to her and told her that appellant was in the room of victim. Therefore, Manisha went to room and found that appellant sitting on the person of victim. He ran away. Evidence of P.W. 3 is not reliable because victim not stated that Manisha came to the spot of incident. 9. P.W. 4 Kalawati Giri, mother of victim has stated that she returned to house in the evening at about 6.00 p.m. Then victim narrated the incident. She had taken her to Police Station, Ambazari and lodged the report. Whatever she has stated are the material omissions brought on record in her cross-examination. She has stated as under. "I stated to police before in my report that my daughter told me that Sanju Mama removed his Pant and Chaddi and inserted his penis into her vagina. I also told to police that time that she told that Sanju pressed her mouth. I have also told to police that my daughter told me that she narrated this fact to Manisha. My daughter also told me that Manisha kicked our door and opened it. I stated to police that Ujwala told me that Manisha rubbed white liquid from her person. I have also told to police that my daughter told me that she narrated this fact to Manisha. My daughter also told me that Manisha kicked our door and opened it. I stated to police that Ujwala told me that Manisha rubbed white liquid from her person. I also stated to police that once Sanju inserted his penis into her vagina as such Ujwala told, in latrine. I also stated to police that Ujwala told me that once such incident also repeated in room of God. I stated to police that Ujwala told me that Sanju and his wife told her that if she will narrate incident to anybody they will beat her by stick. All these facts are not scribed in my report because police took money from them. ....." 10. P.W. 5 Sitabai Jugnake has stated in her evidence that she enquired from the victim and she narrated the incident. Whatever she has stated are the material omissions. She has admitted in her cross-examination in paragraph 5 as under. 5. I stated to police that I returned to house from Kalabai. I also stated to police that Manisha told me that Sanjay Wankhede had entered into house of Kalabai Giri. I also stated to police that incident occurred at 4 P.M. I stated to police that Manisha told me that Sanjay had removed his entire clothes and he was sitting on the waist of Ujwala and he was pressing her mouth. I also told to police that Manisha told me that clothes of Ujwala had become dirty and she rubbed white liquid from her person. I also told that Sanjay ran away with his clothes. I told to police that the incident occurred in absence of Ujwala's parents. I also told to police that Ujwala's mother washed her clothes. I also told to police that myself and mother of Ujwala took her to hospital. I told to police that Ujwala told me that this is third incident of similarly. I told to police that in similar way Sanju had inserted his penis into her vagina in the room of God. I cannot say why these aforesaid facts are not scribed in my statement before police. 11. P.W. 6 Kantibai Raut has stated that Manisha knocked the door. Door was opened. Appellant ran away. P.W. 7 Yuvraj Gaikwad has stated about spot panchanama, recording statements of witnesses etc. I cannot say why these aforesaid facts are not scribed in my statement before police. 11. P.W. 6 Kantibai Raut has stated that Manisha knocked the door. Door was opened. Appellant ran away. P.W. 7 Yuvraj Gaikwad has stated about spot panchanama, recording statements of witnesses etc. P.W. 8 ACP Sadashiv Chavan has stated about the investigation. 12. From the cross-examination of ACP Chavan, it is clear that P.W. 4 Kalawati had made complaint to Commissioner of Police that no proper investigation was done, therefore, as per the directions given by the Commissioner of Police, investigation was handed over to him. Complainant also filed one petition before the High Court. 13. Looking to the material omissions in the evidence of material witnesses and the demeanor of the witnesses recorded by the trial Court, it is clear that some material is suppressed by the trial Court. Question was asked to the victim as under. Q. It is my say that at the say of Pendhare and parents you deposed false? : (Twice or thrice question put to the witness but she was not replying and she gets some time. Court also repeated the same question to the witness but inspite she not replied, though she has replied previous questions very boldly.) Victim has stated that mother of Rahul reached to the spot of incident. Prosecution not examined mother of Rahul. Manisha has stated that she along with Kantabai went to the spot of incident. But victim not stated that Manisha and Kantabai reached to the room at the time of incident. Medical certificate issued by P.W. 2, Exhibit 19 is not reliable because victim was examined by the Medical Officer on 27-11-2001 after the incident and he found nothing. Medical Officer opined as per Exhibit 56, as under. "On Examination:- No evidence of injury marks seen over the private parts. No evidence of injury marks on body. Hymen is intact. Sexual Intercourse has not taken place with the said patient." 14. She was examined by Medical Officer on Duty on 27-11-2001 at about 7.15 p.m. whereas P.W. 2 examined the victim on 29-11-2001. Looking to the medical certificate issued by P.W. 2, Investigating Officer again requested the Medical Officer to examine the victim. On 1-12-2001, Medical Officer examined the victim and issued certificate, Exhibit 58 and observed as under. "On examination. Average age of pt 10 yr. Looking to the medical certificate issued by P.W. 2, Investigating Officer again requested the Medical Officer to examine the victim. On 1-12-2001, Medical Officer examined the victim and issued certificate, Exhibit 58 and observed as under. "On examination. Average age of pt 10 yr. Thin built - well oriented & history told by herself. There is no injury fresh or old on body. There are no markings of injury old or new on abdomen or thigh, groin pubic hair and axillary hair not developed. No bleeding or discharge from vagina. No hymen injury. Hymen intact. Photograph of mother & daughter Ujwala taken for identification. Photographs of hymen taken for evidence." 15. From the perusal of Medical Certificates, Exhibit 56 and Exhibit 58, it is clear that no any sign of sexual intercourse/attempt to sexual intercourse was found. It appears that P.W. 2 issued Medical Certificate on the request of mother of the victim. P.W. 2 was not requested by the Investigating Officer to examine the victim. 16. It appears from the cross-examination of the witnesses that parents of the victim were residing as a tenant and appellant was insisting to vacate the premises. Situation on the spot shows that there was only one latrine. Family members of the appellant and two tenants were using only one latrine. In such situation, whatever stated about previous incidents by the victim is not reliable. Incident stated by victim on the day of incident is also not reliable. Mother of victim admitted in her cross-examination that she used to work only for four months and her work starts from December and ends in March and for remaining days, she used to remain at house. Therefore, it cannot be said that she was out of house on the day of incident. Manisha stated against the appellant because her husband was selling liquor and appellant made complaint against him. Evidence on record clearly show that prosecution has failed to prove the guilt of accused/appellant beyond reasonable doubt. On the other hand, medical certificates, Exhibit Nos. 19, 56 and 58 creates doubt about the incident and benefit of doubt must go to the accused/appellant. Hence, I am inclined to allow the appeal and proceed to pass the following order. ORDER (i) The appeal is allowed. (ii) Impugned judgment is hereby quashed and set aside. On the other hand, medical certificates, Exhibit Nos. 19, 56 and 58 creates doubt about the incident and benefit of doubt must go to the accused/appellant. Hence, I am inclined to allow the appeal and proceed to pass the following order. ORDER (i) The appeal is allowed. (ii) Impugned judgment is hereby quashed and set aside. (iii) Appellant is acquitted of the offences punishable under Sections 376 read with Section 511 and Section 448 of the Indian Penal Code. (iv) Appellant is on bail. His bail bond stands cancelled. (v) Fine amount, if paid, same shall be refunded to the appellant. (vi) R & P be sent back to the trial Court.