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2021 DIGILAW 399 (ORI)

Rabi Munda v. State Of Odisha

2021-09-13

S.K.SAHOO

body2021
JUDGMENT S.K. Sahoo, J. - The appellant Rabi Munda faced trial in the Court of learned Additional Sessions Judge -cum- Special Judge, Keonjhar in Special Case No.185/61 of 2016-14 for commission of offences punishable under section 376(2)(i) of the Indian Penal Code and section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereafter referred to as 'POCSO Act') on the accusation that he committed rape on the victim, a girl aged about twelve years on 02.08.2014 at about 12 noon in Chiragunidhoda forest at village Uchumadihi under Nayakote police station in the district of Keonjhar. The learned trial Court vide impugned judgment and order dated 10.11.2017 found the appellant guilty of the offences charged and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.5,000/- (rupees five thousand), in default, to undergo further rigorous imprisonment for one year for the offence under section 376(2)(i) of the Indian Penal Code and he was further sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.3,000/- (rupees three thousand), in default, to undergo further rigorous imprisonment for one year for the offence under section 4 of the POCSO Act and both the sentences were directed to run concurrently. 2. The prosecution case, as per the first information report lodged by the father of the victim, namely, Shyama Sundar Majhi (P.W.6), in short, is that on 02.08.2014 at about 12 noon, while the victim (P.W.4), who was a minor girl aged about twelve years had been to nearby Chiragunidhoda forest for grazing goats and she was grazing goats, at that time, the appellant suddenly came near the victim finding her alone, made her lie on the ground, torn her frock and undergarments and forcibly committed rape on her. The victim (P.W.4) raised hullah and on hearing her hullah, when one Sabita Barik (P.W.2) and others who were working in the nearby cultivable fields rushed to the spot, on seeing them, the appellant fled away. The victim was feeling pain on her private parts. The victim (P.W.4) narrated about the occurrence before her brother Ganesh, who in turn intimated the same to his father (P.W.6) and his mother (P.W.7) over phone. After the parents of the victim returned, they came to know about the occurrence from the victim. The victim was feeling pain on her private parts. The victim (P.W.4) narrated about the occurrence before her brother Ganesh, who in turn intimated the same to his father (P.W.6) and his mother (P.W.7) over phone. After the parents of the victim returned, they came to know about the occurrence from the victim. Since it was late night, on the next day i.e. on 03.08.2014 P.W.6 came to Nayakote police station in the district of Keonjhar and lodged the written report which was scribed by one Mangulu Palei (P.W.1) of village Dudhapasi as per his instruction, who read over and explained the report to P.W.6 and after he found it to be correct, he signed on the report. 3. P.W.10 Rashmi Ranjan Dash, who was the Sub- Inspector of police of Nayakote police station and also in-charge of I.I.C. in his absence, on receipt of the written report from P.W.6, registered the same as F.I.R. (Ext.1) in Nayakote P.S. Case No.34 dated 03.08.2014 under section 376 of the Indian Penal Code and section 4 of the POCSO Act against the appellant. He took up investigation of the case and during course of investigation, he examined the informant (P.W.6), the victim (P.W.4) and others. He proceeded to the spot and prepared the spot map (Ext.7). The victim was sent to District Headquarters Hospital, Keonjhar for medical examination along with her wearing apparels for examination. On 04.08.2014, he seized the wearing apparels of the victim and prepared the seizure list vide Ext.8. On the same day, he made prayer for recording of statement of the victim under section 164 Cr.P.C. and accordingly, the same was recorded by the Magistrate on 05.08.2014. The appellant was arrested on 04.08.2014 and on the next day i.e. on 05.08.2014, he was sent for medical examination to C.H.C., Banspal and then forwarded to the Court on the same day. On 08.08.2014, the I.O. (P.W.10) received the medical examination report of the appellant and on 13.08.2014 he received the medical examination report of the victim. He seized three numbers of sealed vials containing biological sample of the appellant, wearing apparels of the appellant and the command certificate as per seizure list vide Ext.9. On 08.08.2014, the I.O. (P.W.10) received the medical examination report of the appellant and on 13.08.2014 he received the medical examination report of the victim. He seized three numbers of sealed vials containing biological sample of the appellant, wearing apparels of the appellant and the command certificate as per seizure list vide Ext.9. The Investigating Officer visited the school where the victim had taken her admission in Standard-I and seized the school admission register from the Headmaster as per seizure list vide Ext.11, which reflected the date of birth of the victim to be 15.04.2005. The school admission register was handed over to the Headmaster of the school on executing zimanama vide Ext.3. The Investigating Officer sent the material objects to the Director, State Forensic Science Laboratory, Rasulgarh, Bhubaneswar for chemical examination through Court. On 02.09.2014, as per the order of his superior, P.W.10 handed over the charge of investigation of the case to Mr. B.K. Bihari (P.W.8), Inspector in-charge of Nayakote police station, who re- examined the victim, her parents and other witnesses. On 29.09.2014, on completion of investigation, P.W.10 submitted charge sheet against the appellant under section 376(2)(i) of the Indian Penal Code read with section 4 of the POCSO Act. 4. After submission of charge sheet, the leaned Special Judge, Keonjhr framed the charges against the appellant on 25.09.2015 as already stated and since the appellant refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. 5. The defence plea of the appellant is one of denial and it is pleaded that he had been falsely implicated in the case. 6. During course of trial, in order to prove its case, the prosecution has examined as many as ten witnesses. P.W.1 Mangulu Palei was the scribe of the F.I.R. (Ext.1). P.W.2 Sabita Barik is a post-occurrence witness and she has stated that while she was working in a nearby field, on hearing the cries of a girl, she along with others came there and found the victim was present there. She further stated that she had not seen anything else for which she was declared hostile by the prosecution. P.W.3 Dr. Nibedita Nayak, who was working as Medical Officer, District Headquarters Hospital, Keonjhar examined the victim (P.W.4) on police requisition and proved the medical examination report vide Ext.2. She further stated that she had not seen anything else for which she was declared hostile by the prosecution. P.W.3 Dr. Nibedita Nayak, who was working as Medical Officer, District Headquarters Hospital, Keonjhar examined the victim (P.W.4) on police requisition and proved the medical examination report vide Ext.2. P.W.4 is the victim, who supported the prosecution case and stated about the commission of rape on her by the appellant. P.W.5 Kartikeswar Mahanta was the Headmaster of the school, where the victim was prosecuting her studies and he is a witness to the seizure of school admission register vide seizure list Ext.4 and he took zima of that register vide zimanama (Ext.3). P.W.6 Shyam Sundar Majhi is the father of the victim, who is the informant of the case. P.W.7 Basanti Majhi is the mother of the victim, who stated that after enquiring about the matter from the victim, she informed the matter to her husband (P.W.6). P.W.8 Bijay Kumar Bihari was the Investigating Officer of the case, who submitted charge sheet. P.W.9 Dr. Rati Ranjan Mohanta was working as the Medical Officer, Banspal C.H.C., who medically examined the appellant on police requisition and noticed one injury on the ring finger of left hand of the appellant and proved the medical examination report vide Ext.6. P.W.10 Rashmi Ranjan Dash, the S.I. of Police of Nayakote Police Station, was the initial Investigating Officer of the case. The prosecution exhibited thirteen numbers of documents. Ext.1 is the F.I.R., Ext.2 is the medical examination report of the victim, Ext.3 is the zimanama, Ext.4 is the entry in the school admission register in Folio no.3 and sl. no.3/2058 dated 12.04.2011, Ext.5 is the 164 Cr.P.C. statement of the victim, Ext.6 is the medical examination report of the appellant, Ext.7 is the spot map, Exts.8, 9 and 11 are the seizure lists, Ext.10 is the 164 Cr.P.C. statement of the victim, Ext.12 is the forwarding report for chemical examination and Ext.13 is the command certificate. No witness was examined on behalf of the defence. 7. No witness was examined on behalf of the defence. 7. The learned trial Court on analyzing the oral as well as documentary evidence on record, particularly the entry relating to the date of birth of the victim in the school admission register and in view of Rule 12(3)(b) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereafter referred to as 2007 Rules') and the ratio laid down by the Hon'ble Supreme Court in the case of State of Madhya Pradesh -Vrs.- Anoop Singh reported in (2015) 7 Supreme Court Cases 773 has been pleased to hold that the age of the victim was below twelve years at the time of occurrence. The learned trial Court accepted the evidence of the prosecutrix that she was ravished by the appellant and that her evidence has remained unchallenged. It was further held that the evidence of the father (P.W.6) and mother (P.W.7) of the victim corroborated the evidence of the victim relating to the occurrence. It is further held taking into account the evidence of the Medical Officer (P.W.9) who examined the appellant and opined that the appellant was found capable of having sexual intercourse and that there was an injury found on the ring finger on his left hand, that the prosecution has successfully established the charges under section 376(2)(i) and section 4 of the POCSO Act against the appellant. 8. Mr. Chittaranjan Sahu, learned counsel for the appellant submitted that the prosecution has not adduced any clinching evidence to show that the victim was aged about twelve years at the time of occurrence and the conclusion arrived at by the learned trial Court in that respect is faulty. The evidence of the victim relating to commission of rape on her is not getting corroboration from the evidence of the doctor (P.W.3), who examined her on the next day of the occurrence. Highlighting that the imposition of sentence by the learned trial Court both for the offence under section 376(2)(i) of the Indian Penal Code as well as section 4 of the POCSO Act is impermissible in view of section 42 of the POCSO Act, he urged that benefit of doubt should be extended in favour of the appellant. Mr. Highlighting that the imposition of sentence by the learned trial Court both for the offence under section 376(2)(i) of the Indian Penal Code as well as section 4 of the POCSO Act is impermissible in view of section 42 of the POCSO Act, he urged that benefit of doubt should be extended in favour of the appellant. Mr. D.K. Pani, learned Additional Standing Counsel for the State, on the other hand, supported the impugned judgment and contended that on the basis of the entry made in the school admission register, it is apparent that the victim was below twelve years of age at the time of occurrence, which has been rightly held by the learned trial Court. He argued that even if no birth certificate has been proved, but the entry in the school admission register cannot be overlooked and when not only the victim but her parents have consistently stated that at the time of occurrence the age of the victim was below twelve years and nothing substantial has been brought out in the cross- examination to disbelieve such evidence, no fault can be found with the conclusions arrived at by the learned trial Court. He further argued that the victim has categorically stated about the commission of rape on her by the appellant while she had been to graze goats in the forest area and after the occurrence, she immediately disclosed about the same before her brother as well as her mother and there has been prompt lodging of the first information report and in such a scenario, even though the medical examination report indicated that there was no sign and symptoms of recent sexual intercourse found on her genitalia, it cannot be a ground to discard the prosecution case as the medical evidence is merely an opinion of the expert. The learned counsel further argued that even though the learned trial Court should not have sentenced the appellant both for the offence under section 376(2)(i) of the Indian Penal Code and section 4 of POCSO Act in view of the provision under section 42 of the POCSO Act, but the higher punishment prescribed for the offence under section 376(2)(i) of the Indian Penal Code is to be taken into account, which prescribes the minimum punishment for ten years and therefore, the appeal should be dismissed. 9. 9. Let me first discuss the evidence on record relating to the age of the victim at the time of occurrence and whether the prosecution has been able to prove that the prosecutrix was a child as per section 2(d) of the POCSO Act and more particularly she was below sixteen years of age at the time of incident. In the case of Anoop Singh (supra), the Hon'ble Supreme Court considering Rule 12(3) of 2007 Rules held that the birth certificate and the middle school certificate can be used for determining the age of the prosecutrix as per Rule 12(3)(b). It was further held that the High Court should have relied firstly on the documents as stipulated under Rule 12(3)(b) and only in its absence, the medical opinion should have been sought for. The learned trial Court has followed Rule 12(3)(b) of 2007 Rules and relied upon the admission register of the victim to hold that the age of the victim was below twelve years at the time of occurrence. Rule 12 of 2007 Rules deals with the procedure to be followed in the determination of age. Rule 12(3)(a) gives topmost preference to the matriculation or equivalent certificate in that respect and in its absence, the date of birth certificate from the school first attended other than a play school and if the same is also not available, the birth certificate given by a corporation or a municipal authority or a panchayat can be taken into account. Rule 12(3)(b) of the 2007 Rules states, inter alia, that only in absence of either (i), (ii) or (iii) of clause (a), the medical opinion will be sought for from a duly constituted Medical Board, which would declare the age of the juvenile or child. In case, the exact assessment of age cannot be done, the Court for the reasons to be recorded, if consider necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. In the case in hand, when the learned trial Court has not sought for the medical opinion from a duly constituted Medical Board to determine the age of the victim, it should not have mentioned that following Rule 12(3)(b) of 2007, he came to determine the age. In the case in hand, when the learned trial Court has not sought for the medical opinion from a duly constituted Medical Board to determine the age of the victim, it should not have mentioned that following Rule 12(3)(b) of 2007, he came to determine the age. On the other hand, the learned trial Court has relied upon the entry made in the school admission register which comes within clause (a)(ii)of Rule 12(3). Thus, the finding is quite confusing. The victim being examined as P.W.4 has stated her age to be twelve years as on the date of deposition, which was recorded on 02.12.2015. The occurrence in question stated to have taken place on 02.08.2014. However, in the cross- examination, the victim stated that she could not state her date of birth or her exact age. However, she stated that she was admitted in the school and was reading for some days. The father of the victim being examined as P.W.6 has also stated that at the time of occurrence, her daughter was twelve years of age but in the cross-examination, he stated that at the time of admission of the victim, he had not given the birth certificate, but stated about her date of birth on guess work. He denied the suggestion that the victim was aged about twenty two to twenty three years. The mother of the victim being examined as P.W.7 has also stated that the age of the victim was twelve years at the time of occurrence. In the cross-examination, she however stated that she had not prepared the birth certificate or horoscope of her children and she was telling the age of her children on assumption, but it is almost correct. She stated that at the time of admission of the victim in the school, they stated about her age on assumption. The Headmaster of the school where the victim had taken admission was examined as P.W.5 and he proved the entry made in the school admission register relating to the date of birth of the victim, which was 15.04.2005. He also stated that no horoscope or birth certificate of the student was filed at the time of admission. The Headmaster of the school where the victim had taken admission was examined as P.W.5 and he proved the entry made in the school admission register relating to the date of birth of the victim, which was 15.04.2005. He also stated that no horoscope or birth certificate of the student was filed at the time of admission. However, he stated that the victim studied in the school for one year and thereafter, she did not attend the school and on 08.04.2014, T.C. was issued in her favour and that he could not say whether the date of birth of the victim which was recorded as 15.04.2005 in the school admission register on the basis of the statement of her father was correct or not. The doctor (P.W.3), who examined the victim has stated that she advised for ossification test to ascertain the age of the victim. However, there is no material on record to show that any ossification test was conducted to determine the age of the victim. The Investigating Officer (P.W.10) has stated that his investigation did not reveal that basing on which document, the date of birth of the victim was entered in the School Admission Register. He admitted that he had not seized birth certificate or horoscope of the victim as those documents were not available. From the aforesaid evidence adduced by the prosecution, it is apparent that no horoscope of the victim was prepared and she was also having no birth certificate. The entry of the school admission register relating to her date of birth was made as per the version of her father (P.W.6), who himself stated that he stated about the date of birth of the victim by guesswork. The mother of the victim has also stated in the similar manner. When no documentary evidence like horoscope and birth certificate is available and the entry in the school admission register has been made on the basis of guesswork or assumption, in such a scenario, it is very difficult to give due importance to such entry made in the school admission register to determine the age of the victim. When the doctor (P.W.3) advised for the ossification test to be conducted to ascertain the age of the victim, it is quite strange that the Investigating Officer took no step in that regard, which raises a question mark on the fairness of investigation. When the doctor (P.W.3) advised for the ossification test to be conducted to ascertain the age of the victim, it is quite strange that the Investigating Officer took no step in that regard, which raises a question mark on the fairness of investigation. It is the duty of the prosecution in a case of this nature to prove the age of the victim and the Court can take recourse to Rule 12(3) of 2007 Rules to determine the age, as once the victim is found be a child or her age is found to be below sixteen years at the time of occurrence, the punishment prescribed for the offence is on a higher side. The parents of the victim have given contradictory statements relating to the age of their children. The mother of the victim, who has been examined as P.W.7 has stated that the age her elder son Ganesh would be twenty to twenty two years whereas the father of the victim, who has been examined as P.W.6 has stated that the age of the elder son Ganesh would be about seventeen to eighteen years. Both of them have stated that the victim was their third child and there is no evidence what was the gap between the first child and the second child or the second child and third child, who is the victim. The offence under section 376(2)(i) of the Indian Penal Code, which was omitted by Act 22 of 2018 with effect from 21.04.2018 prescribed punishment for the commission of rape on a woman when she is under sixteen years of age. Since no clinching evidence is brought on record by the prosecution relating to the age of the victim and her age has been stated by the relevant witnesses as per their guesswork and even the school admission register entry was made on assumption and the medical evidence is lacking, I am of the humble view that it cannot be said that the prosecution has successfully established that the victim was a child as per the definition of the 'child' under section 2(b) of the POCSO Act and that she was under the age of sixteen years at the time of occurrence. The finding of the learned trial Court on that score is found to be faulty. 10. The finding of the learned trial Court on that score is found to be faulty. 10. Law is well settled that in a case of rape, onus is always on the prosecution to prove affirmatively each ingredients of the offence like other criminal cases. The prosecution must discharge this burden of proof to bring home the guilt of the accused and this onus never shifts. Courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and it should not be swayed by minor contradictions and discrepancies in appreciation of evidence of the witnesses which are not of a substantial character. Conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstantial evidence such as the report of chemical examination, scientific examination etc., if the same is found to be natural and trustworthy and there is a ring of truth in it. There is no legal compulsion to look for corroboration to the testimony of prosecutrix unless the evidence of the victim suffers from serious infirmities. However, if the Court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. On the anvil of the above principles, let me now test the version of the prosecutrix as depicted in the prosecution case. The victim stated in her evidence that while she was grazing goats in the forest near her village, during noon hours, the appellant came from her backside, pressed her mouth, forcibly made her lie on the ground and pressed her for which she could not escape from his clutches and then the appellant disrobed her and also put off his own dress and then forcibly committed rape on her, for which she felt pain and raised cries and on hearing her cries, the persons engaged in the nearby cultivable land came near her and on seeing them, the appellant escaped. P.W.2, who was examined by the prosecution to corroborate the version of the victim, has stated that while she was working in the cultivable land, on hearing cries of a girl from the nearby field, she came there and found the victim present there and that she had not seen anything else. The witness was declared hostile by the prosecution. In the cross-examination by the defence, she stated that it was a rainy day and it was raining and some sheep were grazing near the place where the victim was present and that place was visible from the land where they were working. She further stated that she had no direct knowledge about the occurrence and the victim had also not disclosed anything before her. The victim has stated that there are houses at a little distance from the spot and those houses are visible from the spot and the cultivable lands are situated adjoining to the ditch where she was grazing the goats. She further stated that the occurrence took place on a rainy day and the road was muddy. She further stated that on earlier occasion, the father of the appellant had raised some dispute with her father regarding the landed properties. She further stated that the appellant had caught hold of her when he put off his dress and that the appellant had penetrated his penis in her vagina and she had bleeding for such act of the appellant. The defence counsel suggested to the victim in her cross-examination that she had not stated before the Investigating Officer that during the noon hours, the appellant came from her backside, pressed her mouth and that he forcibly made her lie on the ground and pressed her for which she could not escape from his clutches and thereafter the appellant forcibly committed rape on her, but most peculiarly, no such confrontation has been proved through the Investigating Officer as required under section 145 of the Evidence Act. Under section 145 of Evidence Act, when it is intended to contradict the witness by his previous statement reduced into writing by the Investigating Officer, the attention of the witness is drawn to that part, which must be reflected in his cross-examination by reproducing it. Under section 145 of Evidence Act, when it is intended to contradict the witness by his previous statement reduced into writing by the Investigating Officer, the attention of the witness is drawn to that part, which must be reflected in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need for further proof of contradiction and it will be read while appreciating the evidence. If however the witness denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process, the contradiction is merely bright on record, but it is yet to be proved. Thereafter, when the Investigating Officer is examined in the Court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the Investigating Officer, who, again by referring to the police statement, will depose about the witness having made that statement. The Court cannot suo motu make use of statements made to police not proved in compliance with section 145 of Evidence Act. (Ref:- (2015) 9 Supreme Court Cases 588, V.K. Mishra -Vrs.- State of Uttarkhand). On verification of the statement of the victim (P.W.4) recorded by the police just to see whether there is in fact any such omission made by the victim, it is found that most part of the confronted statement is available in her statement before police. When such type of confrontation was made to the victim by the defence counsel at the time of cross-examination that she had not stated about a particular aspect of the occurrence before police as she has stated in the examination-in-chief, it was nonetheless the duty of the Public Prosecutor as well as the learned trial Court to verify the statement recorded under section 161 Cr.P.C. immediately and the Public Prosecutor has a duty to object, if there is no such contradiction as pointed out by the defence. The learned trial Court also cannot act as a silent spectator or a mute observer when it presides over a trial, otherwise the sanctity of the proceeding would be lost. The evidence of the victim relating to her commission of rape is no doubt getting corroboration from the statements of her parents. The learned trial Court also cannot act as a silent spectator or a mute observer when it presides over a trial, otherwise the sanctity of the proceeding would be lost. The evidence of the victim relating to her commission of rape is no doubt getting corroboration from the statements of her parents. The mother of the victim being examined as P.W.7 has stated that she enquired about the matter from her daughter, who stated that while she was grazing the goats at Chirigunidhoda forest, the appellant committed rape on her and she informed the matter to her husband (P.W.6) and on the next day, the matter was reported to the police. P.W.6 has also stated that P.W.7 discussed the matter with the victim, who narrated about the incident before her, which she conveyed to him and since it was late evening, on the next day, he reported the matter before the police, which was scribed by Manguli Palei (P.W.1). P.W.1 has stated that he scribed the F.I.R. as per the instruction of P.W.6 and read over and explained the same to him, who admitted the same to be correct and then he signed thereon. The F.I.R. has been marked as Ext.1. In view of the timing of lodging of the F.I.R., it can be said that there is absolutely no delay in the lodging of the F.I.R. The doctor (P.W.3), who examined the victim on 03.08.2014 found no bodily injury on her person suggestive of forcible sexual intercourse and there was no sign or symptoms of recent sexual intercourse on her genitalia and she further observed that the hymen of the victim did not even admit tip of little finger for which it was not practicable to collect the vaginal swab. P.W.3 further stated in the cross-examination that when a girl aged about twelve years is forcibly ravished by a boy of twenty two years, there is possibility of sustaining injury on her private parts. At this juncture, it is to be seen whether the evidence of the victim relating to the commission of rape on her by the appellant, which is also getting corroboration from the version of her parents, is to be discarded in toto merely because there is no corroboration from the medical evidence. At this juncture, it is to be seen whether the evidence of the victim relating to the commission of rape on her by the appellant, which is also getting corroboration from the version of her parents, is to be discarded in toto merely because there is no corroboration from the medical evidence. In the case of Sham Singh -Vrs.- The State of Haryana, reported in (2018) 72 Orissa Criminal Reports (SC) 221, where the medical examination of the victim indicated that she had sustained an injury on the left side of her forehead and the doctor opined that the possibility of sexual assault on the victim cannot be ruled out though it was not specified whether the sexual assault was in the recent past, the Hon'ble Supreme Court held that the trial Court and the High Court convicted the appellant merely on conjectures and surmises and not on legally acceptable evidence and such assumptions are not corroborated by any reliable evidence and the medical evidence did not support the case of the prosecution relating to the commission of rape and accordingly, the appellant was acquitted. In the case in hand, the victim has stated that the appellant had penetrated his penis in her vagina and that she had bleeding for such act of the appellant. The evidence of the doctor, who examined the victim on the very next day of occurrence, is that there was no sign or symptom of recent sexual intercourse on her genitalia and that the hymen of the victim did not even admit tip of the little finger for which it was not practicable to collect the vaginal swab. According to the victim, it was a rainy day and the place was muddy and the appellant disrobed her and laid her on the ground and then forcibly committed rape on her. Had that been the state of affairs, the medical examination report of the victim would have been otherwise. Therefore, I am of the humble view that when the medical evidence completely negatives the accusation of rape on the victim, it is very difficult to accept her version as truthful and reliable. 11. Had that been the state of affairs, the medical examination report of the victim would have been otherwise. Therefore, I am of the humble view that when the medical evidence completely negatives the accusation of rape on the victim, it is very difficult to accept her version as truthful and reliable. 11. The doctor (P.W.9) who has examined the appellant on 05.08.2014 though stated that the appellant was capable of committing sexual intercourse and there was no sign or symptoms of recent sexual intercourse, but most peculiarly he stated that he found an injury on the ring finger of the left hand of the appellant and opined that it suggested forcible sexual intercourse, though in the cross-examination, he admitted that the injury found on the finger of the appellant was possible to be caused during assault or any kind of force being applied thereto. Therefore, the statement of the doctor that the injury on the ring finger of the left hand of the appellant is suggestive of forcible sexual intercourse is very difficult to be accepted. 12. The Investigating Officer (P.W.10) visited the spot on 03.08.2014 and prepared the spot map (Ext.7) which was the next day of occurrence and he stated that he had not noticed any mark of violence at the spot during his spot visit and that the paddy field is about twenty five meters away from the occurrence spot. He has not mentioned any mud was sticking on the wearing apparels of the victim at the time of its seizure. Even though the wearing apparels of the victim and the appellant along with sealed glass bottles containing the semen and pubic hair of the appellant were sent for chemical examination, but for reasons best known to the prosecution, no chemical examination report has been proved during trial. 13. Even though the wearing apparels of the victim and the appellant along with sealed glass bottles containing the semen and pubic hair of the appellant were sent for chemical examination, but for reasons best known to the prosecution, no chemical examination report has been proved during trial. 13. In view of the foregoing discussions, when the prosecution has not proved that the victim was a child at the time of occurrence and specifically she was under the age of sixteen years, when the oral evidence of the victim relating to the commission of rape on her by the appellant is not getting corroboration from the medical evidence even though she was examined on the very next day of the occurrence and in view of the other doubtful features and infirmities in the prosecution evidence which have already been discussed, I am of the humble view that the impugned judgment and order of conviction cannot be sustained in the eye of law and accordingly, the same is hereby set aside. The appellant is acquitted of the charges under section 376(2)(i) of the Indian Penal Code and section 4 of POCSO Act. 14. Before parting with the case, I would like to put emphasis on the sentencing part of the impugned judgment. In view of the special provision under section 42 of the POCSO Act, though the Special Judge can prosecute and convict an accused, both under section 376(2)(i) of the Indian Penal Code as well as section 4 of the POCSO Act, but so far as the punishment part is concerned, in view of section 42 of the POCSO Act, the Court has to choose from the two which would obviously carry punishment of greater degree and therefore, the imposition of punishment for both the offences i.e. under section 376(2)(i) of the Indian Penal Code and section 4 of the POCSO Act by the learned trial Court, is nothing but a legal error. 15. In the result, the appeal is allowed. The appellant be set at liberty forthwith, if his detention is not required in any other case. 16. 15. In the result, the appeal is allowed. The appellant be set at liberty forthwith, if his detention is not required in any other case. 16. It is made clear that while convicting the appellant, the learned trial Court has passed an order that the victim should be compensated under the Odisha Victim Compensation Scheme, 2012 which was enacted in pursuance to section 357-A of Cr.P.C. and recommended the case to the District Legal Services Authority, Keonjhar to provide financial assistance to the victim. Even though an order of acquittal has been passed in this Criminal Appeal, if the victim has already received compensation, the District Legal Services Authority shall not take any step to recover such compensation amount merely because of this acquittal order. Let the trial Court record with a copy of this judgment be communicated to the learned trial Court forthwith for information and necessary action.