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2023 DIGILAW 309 (KAR)

State of Karnataka v. Nayeem Zaffar

2023-02-22

C.M.JOSHI, H.B.PRABHAKARA SASTRY

body2023
JUDGMENT/ORDER DR.H.B.PRABHAKARA SASTRY, J. - The State has filed this appeal under Sec. 378 (1) & (3) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as "the Cr.P.C ."), challenging the judgment of acquittal dtd. 5/3/2018, passed by the learned I Additional District and Sessions Judge, Ballari, (hereinafter for brevity referred to as the "the Special Judge's Court") in Special Case No.54/2015, acquitting the accused of the offences punishable under Sec. 376 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as "the IPC ") and under Ss. 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter for brevity referred to as "the POCSO Act"). 2. The summary of the case of the prosecution in the Special Judge's Court was that, on the date 1/3/2015 at about 5:45 p.m., when CW-2 (the alleged victim) the minor daughter of the complainant had been to the house of the accused, situated at Vattappageri Street, Cowl Bazaar, Ballari, within the limits of the complainant Police Station, to ask and take back a sum of Rs.10.00, which was said to have been given to the father of the accused, at that time, the accused, who was alone present in the house, asked the victim girl to get some drinking water to him. Thus, when the victim went near the water drum, the accused caught hold of her, tying her eyes and mouth with cloth, kissed her private parts and committed sexual assault on her and thereby committed the offences punishable under Sec. 376 of the IPC and under Ss. 4 and 6 of the POCSO Act. 3. Charges were framed against the accused for the offences punishable under Sec. 376 of the IPC and under Ss. 4 and 6 of the POCSO Act. Since the accused pleaded not guilty, the trial was held, wherein, in order to prove the alleged guilt against the accused, the prosecution got examined in all eleven (11) witnesses as PW-1 to PW-11, got marked documents from Exs.P-1 to P-19(a) and got produced Material Objects from MO-1 to MO-17(a). From the accused's side, neither any witness was examined nor any documents were got marked as exhibits. After hearing both side, the learned Special Judge's Court, by its judgment dtd. 5/3/2018, acquitted the accused of the offences punishable under Sec. 376 of the IPC and under Ss. From the accused's side, neither any witness was examined nor any documents were got marked as exhibits. After hearing both side, the learned Special Judge's Court, by its judgment dtd. 5/3/2018, acquitted the accused of the offences punishable under Sec. 376 of the IPC and under Ss. 4 and 6 of POCSO Act. Challenging the same, the appellant - State has preferred the present appeal. 4. The appellant -State is represented by the learned High Court Government Pleader. Since the respondent, who is an accused has remained un-represented even after service of notice upon him and the present appeal is an appeal against the judgment of acquittal, the Court, by its reasoned order dtd. 4/2/2023 appointed learned counsel - Sri. Abhinandan M. Gundawade, as an Amicus Curiae for the respondent (accused) to represent him in the present case. The complainant (PW-1) -Smt. Shekhan Bee and the victim girl (PW-3) - Kum. Firdose, though were also served, however, they remained absent. 5. The learned High Court Government Pleader for the appellant-State and the learned Amicus Curiae for the respondent (accused) are physically appearing in the Court. 6. The Special Judge's Court records were called for and the same are placed before this Court. 7. Heard the arguments from both side. Perused the materials placed before this Court, including the memorandum of appeal, impugned judgment and the Special Judge's Court records. 8. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the learned Special Judge's Court. 9. After hearing the learned counsels from both side, the points that arise for our consideration in this appeal are: [i] Whether the prosecution has proved beyond reasonable doubt that, on the date 1/3/2015, at about 5:45 p.m., the accused in his house situated at Vattappageri Street, Cowl Bazaar, Ballari, within the limits of the complainant Police Station, committed rape upon PW-3 (CW-2) - the victim girl and thereby has committed the offence punishable under Sec. 376 of the Indian Penal Code, 1860? [ii] Whether the prosecution has proved beyond reasonable doubt that, on the date, time and place mentioned above, the accused, knowing fully well, that PW-3 (CW-2) was minor in her age, committed penetrative sexual assault and aggravated penetrative sexual assault and thereby has committed the offences punishable under Ss. 4 and 6 of the Protection of Children from Sexual Offences Act, 2012? 4 and 6 of the Protection of Children from Sexual Offences Act, 2012? [iii] Whether the judgment of acquittal under appeal warrants any interference at the hands of this Court? 10. The present appeal is filed by the complainant - State, challenging the judgment of acquittal of the accused from the alleged offences punishable under Sec. 376 of the IPC and under Ss. 4 and 6 of the POCSO Act. Since as per criminal law, the accused is presumed to be innocent until his guilt is proved and further the accused, in the instant case, has already been benefitted by the impugned judgment of acquittal in his favour, this Court, as a Court of appeal upon the impugned judgment of acquittal, must be very careful and cautious in analysing and appreciating the evidence led in the matter. (a) Our Hon'ble Apex Court, in its judgment in the case of CHANDRAPPA AND OTHERS Vs. STATE OF KARNATAKA, reported in (2007) 4 Supreme Court Cases 415, while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of acquittal, was pleased to observe at paragraph 42(4) and paragraph 42(5) as below: " 42(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. 42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." (b) In the case of Sudershan Kumar Vs. State of Himachal Pradesh reported in (2014) 15 Supreme Court Cases 666, while referring to Chandrappa's case (supra), the Hon'ble Apex Court at Paragraph 31 of its Judgment was pleased to hold that it is the cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal. The Appellate Court, in such a case, would interfere only for very substantial and compelling reasons. (c) In the case of JAFARUDHEEN AND OTHERS Vs. The Appellate Court, in such a case, would interfere only for very substantial and compelling reasons. (c) In the case of JAFARUDHEEN AND OTHERS Vs. STATE OF KERALA, reported in (2022) 8 Supreme Court Cases 440, at Paragraph 25 of its judgment, the Hon'ble Apex Court was pleased to observe as below: "25. While dealing with an appeal against acquittal by invoking Sec. 378 Cr.P.C, the appellate Court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters." The above principle laid down by it in its previous case was reaffirmed by the Hon'ble Apex Court, in the case of RAVI SHARMA VS. STATE (GOVERNMENT OF NCT OF DELHI) AND ANOTHER reported in (2022) 8 Supreme Court Cases 536. It is keeping in mind the above principles laid down by the Hon'ble Apex Court, we proceed to analyse the evidence placed in this matter. 11. According to the prosecution, the alleged victim girl (PW-3)(CW-2) was minor in her age and she was aged 12. years as on the date of the incident, which, according to the prosecution, has taken place on the date 1/3/2015. The first witness who speaks about the age of the alleged victim girl is none else than her mother (CW-1) Smt. Shekhan Bee, who was examined as PW-1. The witness (PW-1) in her examination-in-chief has stated that, her daughter i.e. the alleged victim girl was aged 11 years, and as on the date of her evidence, she was studying in VI standard. The said evidence of PW-1 about the age of the alleged victim girl has not been denied from the accused's side in her cross-examination. The witness (PW-1) in her examination-in-chief has stated that, her daughter i.e. the alleged victim girl was aged 11 years, and as on the date of her evidence, she was studying in VI standard. The said evidence of PW-1 about the age of the alleged victim girl has not been denied from the accused's side in her cross-examination. PW-3 (CW-2) the alleged victim girl, who, after certain Court questions put to her was administered with oath, has, in her evidence, stated that, as on the date of her cross- examination on the date 27/12/2016, she was studying in VII standard. She has stated that her age was 13 years. Her evidence regarding her age has not been denied from the accused's side in her cross-examination. 12. In addition to the above, the prosecution also got examined one Smt. Rizwana Begum (PW-8) (CW-14) - the Head Mistress of Taaha English Medium School, Ballari. The said witness has stated that the victim girl was studying in their School. As per the Admission Register, the date of birth of the victim girl was 12/7/2003 and that her Admission Number was 29/10-11. Stating that in that regard, she has issued a letter, confirming the date of birth of the girl as 12/7/2003 and also issued an Admission Register Extract to the Investigating Officer, the witness has identified both of them at Exs.P-13 and P-14 respectively. This witness was not cross-examined from the accused's side. As such, the evidence given by PW-1, PW-3 and PW-8, regarding the age of the victim girl remains un-denied and un- disputed. In that regard, the prosecution also has got produced and marked a medical opinion regarding the age of the alleged victim girl at Ex.P-15. The said document also shows that the Doctor at the Vijayanagar Institute of Medical Sciences, Ballary (VIMS), after examining PW-3 (victim girl) on the date 9/3/2015, has opined that the age of the girl, as on the said date was between 11 years and 13 years. Thus, the age of PW-3 - the alleged victim girl stands proved to be 11 years, 7 months and 19 days, as on the date of the incident, which was said to have taken place on the date 1/3/2015. Thus, PW-3 - the alleged victim girl stands proved to be minor in her age, as on the date of the alleged incident. 13. Thus, PW-3 - the alleged victim girl stands proved to be minor in her age, as on the date of the alleged incident. 13. About the alleged incident of rape and penetrative sexual assault upon PW-3 - the minor victim girl, the material witnesses who have spoken about the same are PW-1 (CW-1) - Smt. Shekhan Bee, PW-2 (CW-5) - Sri. Zakir Hussain and PW-3 (CW-2) - the victim girl. Admittedly, PW-1 (CW-1) - Smt. Shekhan Bee, PW-2 (CW-5) - Sri. Zakir Hussain are respectively the mother and father of PW-3, the alleged victim girl. Both these witnesses, in their evidence, apart from stating that PW-3 is their daughter, have also stated that, they know the family of the accused who reside very near to their house at a distance of about six houses from their house. Both of them have also stated that, on the date of incident, the father of the accused had been to their house asking for a sum of Rs.10.00, which he had found shortage for buying mutton to his house. At that time, PW-2, the father of the victim girl since had underwent an eye surgery, was taking rest at home. PW-3 - the victim girl paid a sum of Rs.10.00 to the father of the accused. In the evening, PW-3 went to the house of the accused, asking for the return of the said sum of Rs.10.00 from the father of the accused. However, at that time, the accused alone was in his house and he asked the victim girl to get him a cup of water. Thus, when she was in the process of getting him a cup of water in his house, the accused caught hold of her and closing her mouth and undressing her, committed rape upon her. After the incident, the victim girl returned home. It is after hearing from her (the victim girl), PW-1 took her to the complainant Police Station and lodged a complaint, which PW-1 has identified it at Ex.P-1. PW-1 has further stated that the Police have enquired her daughter also and have taken the girl along with her to the Ghouse Hospital, where the Doctor examined their daughter and collected the cloths worn by her. PW-1 has also stated that her daughter i.e. the victim girl has also given her statement before the Magistrate. 14. PW-3 (CW-2) - Kum. PW-1 has also stated that her daughter i.e. the victim girl has also given her statement before the Magistrate. 14. PW-3 (CW-2) - Kum. Firdose, the alleged victim girl, in her evidence also has stated that, on the date 1/3/2015, in the morning at about 10:00 a.m., one Sri. Jaffar, the father of the accused had been to their house and had collected a sum of Rs.10.00 for purchasing mutton. He had promised to return the said amount in the evening. Accordingly, at 6 o'clock in the evening, she had been to the house of the said Jaffar to collect the said sum of Rs.10.00 from him. However, the accused, who was alone present in his house, asked her to get him a cup of water from the water drum. While she was filling the water in a cup, the accused caught hold of her and tied her eyes and mouth with a cloth and undressed her. Laying her down, he committed rape upon her. When she yelled, the accused taking her cloth wiped the private part of her body. Thereafter, she returned to her home and narrated the incident to her parents and then her parents went to the accused and questioned him, for which the accused stated that he did not do anything. It is thereafter, she joined by her mother (PW.2) went to the police station and lodged a complaint. She (PW.3) has further stated that the police sent them to the hospital. She has further stated that on the next day at the spot shown by her, the police took photographs while doing panchanama. This witness has identified the said photographs marked at Ex.P2 and P3. She has also stated that the police from the said place collected the cloth used for cleaning, which cloth was shown by her to the police. The witness has identified the sweater belonging to her and got it marked at MO.1. Then, the police produced her before the Magistrate and got her statement recorded, which statement was identified by the witness at Ex.P4. 15. All these witnesses were subjected to a detailed cross-examination from the accused side. However, the witnesses tried to maintain their original stand even in their cross-examination also. Then, the police produced her before the Magistrate and got her statement recorded, which statement was identified by the witness at Ex.P4. 15. All these witnesses were subjected to a detailed cross-examination from the accused side. However, the witnesses tried to maintain their original stand even in their cross-examination also. In the cross-examination of these witnesses, an attempt was made to show that the accused and his family were economically self-sufficient, as such, there was no need for the father of the accused to borrow a sum of Rs.10.00 from the victim or from her family. It is highlighting this aspect, the learned counsel for the respondent/accused in his argument submitted that when admittedly the family members of the accused were earning, there was no need for them to borrow a sum of Rs.10.00 from the family of the victim. As such, the Special Court has rightly held that the contention of PW.1 to PW.3 that the father of the accused has borrowed a sum of Rs.10.00 from them is not believable. 16. In the cross-examination of PW.1 to PW.3, it has been elicited that the mother of the accused was working as Utensils Cleaner at Shadimahal. PW.1 in her cross-examination has admitted as true that they were very poor and all the members in the family of the accused were earning. However, she has also admitted the suggestion as true that the mother of the accused brings the residual food items from the place wherever she works. She denied the suggestion that in such circumstances, father of the accused had no reason to borrow a sum of Rs.10.00 from the family of the victim. PW.2 denied that his family solely runs from the income of his wife, however, he admitted that all in the family of the accused are earning members. He also admitted as true that the mother of the accused works as a Maid Servant including at Shadimahal. He denied the suggestion that his wife had borrowed a sum of Rs.20, 000.00 from the mother of the accused. PW.3 (CW.2)-the alleged victim girl also in her cross-examination though admitted that they are economically poor, and she stated that her father earns for the family, but denied that her mother is the sole earning member of the family and stated that her father also earns. PW.3 (CW.2)-the alleged victim girl also in her cross-examination though admitted that they are economically poor, and she stated that her father earns for the family, but denied that her mother is the sole earning member of the family and stated that her father also earns. She (PW.3) too admitted that the mother of the accused was working as Utensils Cleaner at Shadimahal. Considering this evidence, the Special Court initially formed and maintained a doubt that when a family of the victim was economically poor, the question of they lending a sum of Rs.10.00 to the father of the accused and the family of the accused being economically not poor, borrowing such a small amount is not acceptable. A careful perusal of the evidence of PW.1 to PW.3 would go to show that neither the family of the alleged victim nor the family of the accused was economically sound. Had the family of the accused was economically comfortable, then, probably the mother of the accused would not have gone to Shadimahal as Utensils Cleaner and to the other houses as Maid Servant and also bringing residual food items from the places of work to her house. The photographs of the house at Ex.P2 and P3, which is shown to be the house of the accused also gives an impression that the family of the accused was not economically in comfortable position. Further, according to PW.1, borrowing a sum of Rs.10.00 from the father of the accused is only as a deficit amount with him for the purchase of mutton. It is not that he did not have any money as such, it is only by the alleged borrowed amount of Rs.10.00, he intended to purchase the mutton. Undisputedly, PW.1 and PW.2, the parents of the victim girl have called them as Coolies, thus, borrowing a small articles or small sum of money among the residents in the locality of the accused and the victim would be a common factor. As such, the reasoning of the Special Court that the family of the accused was economically self-sufficient and had no need to borrow a sum of Rs.10.00 from the family of the victim is not convincing. On the other hand, the possibility of the accused and the alleged victim's family borrowing or exchanging the small article and money would not be an uncommon factor. On the other hand, the possibility of the accused and the alleged victim's family borrowing or exchanging the small article and money would not be an uncommon factor. Therefore, the father of the accused borrowing a sum of Rs.10.00 from the family of the complainant cannot be disbelieved. 17. The evidence of PW.1 and PW.2 that the accused committed rape upon their daughter (PW.3) is admittedly hearsay evidence. It is only after stating that they heard about the incident from their daughter, both these witnesses have spoken about the incident. PW.1 being the mother of the alleged victim girl has stated that as told to her by her daughter, the accused has committed rape upon her (PW.3). PW.3 also has repeated the same. Thus, according to both these witnesses (PW.1 and PW.2), they have believed what their daughter has stated complaining of the accused committing rape upon her. The alleged victim girl (PW.3) also in her evidence has stated that when she was filling the drinking water in a cup to give it to the accused, he caught hold of her (PW.3) and tying her eyes and mouth with a cloth and laying her down, raped her. From this, it is clear that PW.1 and PW.2 (Parents of PW.3) stating that their daughter was raped by the accused was solely based upon what they claim to have heard from the mouth of their daughter (PW.3). Even according to PW.1 (mother of PW.3), the alleged victim girl was aged only 11 years. Neither PW.1 nor PW.2 has anywhere stated that the girl of such an age particularly, PW.3 was aware as to what an act of rape is. Neither of them have stated in their evidence about they eliciting the details of the incident by which they could arrive at a conclusion that the act of the accused alleged to have been committed against their daughter (PW.3) was an act of rape or penetrative sexual assault. Even PW.3 also has nowhere stated as to what act the accused did against her by which she was called it 'rape'. Even PW.3 also has nowhere stated as to what act the accused did against her by which she was called it 'rape'. Though it is not necessary that the witness should always explain the details of the act completely in a case of rape, however, in the instant case, when admittedly the alleged victim girl was aged only 11 years and 7 months as on the date of the incident, it was required to ascertain her knowledge about the sexual assault or rape. Even if it is taken that with the help of the cloth, the accused wiped the private part on the body of PW.3, still, that evidence itself is not sufficient to hold that the accused has committed rape upon her. Therefore, there is all the possibility of the alleged victim girl not being known as to what is a rape or a sexual assault. 18. The above analysis gains support in the instant case for the reason that according to PW.1, the mother of victim girl (PW.3) after hearing about the incident from her daughter, undressed her daughter and noticed the injury and also oozing of the blood from her private organ. However, PW.2 (father of the victim girl) has specifically stated that neither himself nor his wife (PW.1) examined their daughter (PW.3) after getting her clothes removed. More importantly, PW.3-the alleged victim girl in her cross- examination specifically stated that after she revealing about the incident to her mother (PW.1), she directly took her to the police station but did not get her (of PW.3) clothes removed and examined her. Therefore, the say of PW.1 that after hearing from her daughter, she got removed the dress worn by her daughter and examined her body including her private organs appears to be not a true statement. 19. In addition to the above, the medical evidence given by PW.7 (CW-11) Dr. Ramaraj, who examined the victim girl on the same night of the alleged incident at 11.45 p.m. does not support the case of the prosecution to the required extent. The said witness has stated that in the examination of the alleged victim girl, he did not notice any external injury on the body of the victim girl. He has stated that he collected ten (10) articles from the girl for the purpose of sending the same for their examination of FSL. The said witness has stated that in the examination of the alleged victim girl, he did not notice any external injury on the body of the victim girl. He has stated that he collected ten (10) articles from the girl for the purpose of sending the same for their examination of FSL. He has also stated that based on the FSL report, he has opined that there were no signs suggestive of vaginal penetration. He has identified his report given to the said effect at Ex.P11. The examination record in the form of Pro-forma for Medico-Legal Examination of survivor of sexual violence said to have been issued by him was identified by him (PW.7) at Ex.P10. The said document gives the details of the examination conducted by him and articles collected by him during the course of the examination. The said report shows the absence of marks regarding physical violence including biting, pinching, violent shaking, kicking, pulling hair, banging head, dragging etc. He has noticed the absence of mark of any injury on the person of the alleged victim girl. He has also recorded in negative on the aspect of oral sex, forced masturbation, exhibitionism and ejaculation. With these observations in his report, the witness in his oral evidence has stated that there were no symptoms of sexual rape. Pro-forma of Medico-legal examination at Ex.P10 also shows that the doctor (PW.7) had collected the finger nails, vulval swab, vulval smear, vaginal swab, vaginal smear, EDTA blood sample, plain blood sample, brown colour top, green colour pant and pink colour dupatta of the victim girl at the time of the examination. According to PW.9-Smt.Jayashree, Woman Police Constable, all those ten articles were given to her by the doctor, which she has shown to the Investigating Officer who collected them by drawing panchanama as per Ex.P5. According to PW.11- M.B. Golasangi, the Investigating Officer, he had sent all those ten articles to the Regional Forensic Science Laboratory, Kalaburagi (for brevity, hereinafter referred to as 'RFSL') for their examination and to collect the report. He has also stated that he got the accused also medically examined whereat the doctor had collected five articles of the accused, which he received under panchanama at Ex.P7 and sent them also to the RFSL. After examining all those articles, the RFSL has given its report as per Ex.P12. He has also stated that he got the accused also medically examined whereat the doctor had collected five articles of the accused, which he received under panchanama at Ex.P7 and sent them also to the RFSL. After examining all those articles, the RFSL has given its report as per Ex.P12. The said report when perused would go to show that the Laboratory noticed the presence of blood stain only on article No.9, which is shown to be a pant. The presence of the blood stains was not detected on the pant worn by the victim girl. However, it did not detect the blood stain in the dress material either of the victim girl or of the dress worn by the accused. Further, the FSL did not detect the presence of seminal stain or spermatozoa in other relevant articles examined by it including vulval swab, vaginal swab, dress worn by the girl, pubic hair and penile swab of the accused. The FSL did not notice the presence of spermatozoa in vulval smear, vaginal smear and penile smear. Further, the FSL did not notice the vaginal secretion in sweater at MO.1, pubic hair, penile swab and penile smear. Skin tissue was not detected in the finger nails of the victim girl. Thus, the absence of any symptoms of the alleged rape which symptoms were expected to be present in the above articles collected by the Investigating Officer or any of the articles collected by the Investigating Officer from the doctor and sent for FSL report also creates more suspicion in the case of the prosecution about the alleged act of rape. In such a circumstance, it is highly doubtful that PW.3-the alleged victim girl was aware as to what is rape. Had there really been an act of rape in the circumstance of the case, at-least some symptoms like presence of spermatozoa, seminal stains or vaginal secretion were required to be present in one way or the other. It is also for the reason that according to PW.1 to PW.3, immediately after the incident, the alleged victim girl was taken to the police station and then to hospital. Thus, within six hours of the alleged incident, the girl was medically examined. It is nobody's case that the girl has taken a bath before being taken to the doctor. It is also for the reason that according to PW.1 to PW.3, immediately after the incident, the alleged victim girl was taken to the police station and then to hospital. Thus, within six hours of the alleged incident, the girl was medically examined. It is nobody's case that the girl has taken a bath before being taken to the doctor. As such, the presence of any of the elements showing the finger towards the act of the sexual intercourse should have been necessarily present. However, the absence of the symptoms, signs, marks or injury either physical or presence of any biological articles like spermatozoa, semen which could have been detected by the FSL, the same would create a serious doubt in the case of the prosecution. Therefore, it is not safe to believe that the alleged victim girl was subjected to rape or penetrative sexual assault by the accused. In addition to the above, PW.3 in her evidence has stated that when the accused committed the alleged act upon her, she has bitten his hand and got herself free from him. However, there is no medical evidence including in the medical report of the accused at Ex.P16, which was marked as a consented document, about the accused having any bite mark or other mark of resistance on his body. The doctor has opined in the said report that there was no external visible injury over the pubic region and external genitalia. Had the girl resisted the said alleged act, protested and bitten the hand of the accused, some mark of injury or scratch should have been found on the person of the accused. This also enlarges a doubt in the case of the prosecution. 20. Though as observed by the Hon'ble Apex Court in several cases including Vijay @ Chinee Vs. State of Madhya Pradesh reported in (2010) 8 SCC 191 that the statement of the prosecutrix if found to be worthy of credence and reliable, requires no corroboration and the Court may convict the accused on the sole testimony of the prosecutrix, the evidence of PW.1 and PW.2 or PW.3 inspires no confidence that the alleged victim girl was subjected to an act of rape or penetrative sexual assault. It is repeated again that the girl was not shown to have understood as to what is rape. It is repeated again that the girl was not shown to have understood as to what is rape. Thus, merely because she has used the word 'rape', corroborative evidence was required at least in the form of some external injuries or physical appearance or favourable report from the FSL. In the absence of all these, it is not safe to believe that the alleged victim girl (PW.3) was subjected to rape or penetrative sexual assault by the accused. 21. About the alleged spot of offence, the evidence of PW.1 and PW.2 that it was the house of the accused is only hearsay after their alleged hearing from their daughter (PW.3). However, PW.3 the alleged victim girl has stated that it was in the house of the accused. She has even stated that she has shown the place to the police, who drew panchanama on the spot. However, the said pancha, who was examined as PW.4(CW.4) Saleem has not supported the case of the prosecution. He denied that the scene of offence panchanama as per Ex.P6 was drawn in his presence and any articles much less cloth and steel glass were seized in his presence. As such, the evidence of PW.11, the investigating officer that he drew the scene of offence panchanama as per Ex.P6 is not safe to believe. 22. The prosecution has not attributed any specific motive behind the alleged commission of rape. However, according to PW.1 to PW.3, the father of the accused had borrowed a sum of Rs.10.00 on that day from them, as such, when PW.3 went to the house of the accused to take back the said money in the evening, the accused who was alone in the house has committed the alleged act upon PW.3. Though the said act of alleged loan of Rs.10.00 cannot be a motive behind the commission of crime and the instances of rape need not necessarily have a definite or prescribed motive always, still, the evidence of material witnesses more particularly, PW.1 to PW.3 since creates a doubt about the alleged act of rape or penetrative sexual assault by the accused, the alleged borrowal of money which was denied by PW.6-Jaffar, father of the accused goes to the background. Similarly, when the material placed before the Court could not make out a case against the accused for the alleged offence, the defence taken up by the accused in the form of suggestions to PW.1 to PW.3 in their cross- examination that PW.1 had borrowed a sum of Rs.20, 000.00 from the mother of the accused and also it was the mother of the accused, who had paid the installments towards the price of mobile purchased by PW.1 has made the complainant to file a false complaint against the accused also does not get any importance. Thus, it is analsying the materials placed before it in its proper perspective, since the Special Court has arrived at a finding holding that the prosecution has failed to prove the alleged guilt against the accused beyond reasonable doubt, we do not find any reason to interfere in the said finding. 23. Accordingly, we proceed to pass the following: ORDER a) The Criminal Appeal stands dismissed as devoid of merits. b) Registry to transmit a copy of this judgment along with the Special Court records to the concerned Special Court without delay. c) The Court while acknowledging the services rendered by the learned Amicus Curiae Sri. Abhinandan M Gundawade for the respondent/Accused, recommends an honorarium of a sum of Rs.4, 000.00 payable by the Registry without any delay.