JUDGMENT : C.S.SUDHA, J. This jail appeal filed under Section 383 Cr.P.C. has been filed by the sole accused in S.C.No.543/2016 on the file of the Court of Session, Thodupuzha, challenging the conviction entered and sentence passed against him for the offences punishable under Sections 450, 341, 323 and 326 IPC. 2. The prosecution case as described in the final report/charge sheet is as follows-The accused with the intention of committing rape, on 29/01/2016 at 11 a.m., trespassed into the house of PW1 bearing No. I/52, Kozhimullur House, Chinnakkal grama panchayat, which house is owned by Aneesh (PW6), wherein PW1was residing along with her family, wrongfully restrained her; voluntarily caused hurt to her by beating, kicking her and thereafter ravished her. The rape was committed in the hall of the aforesaid residential building. Hence the accused is alleged to have committed the offences punishable under the above-mentioned Sections. 3. On the basis of Ext.P1 FIS of PW1, the victim, given on 30/01/2016 at 10 a.m. and recorded by PW11, WCPO Santhanpara Police Station, Ext.P9 FIR, i.e., Crime No.50/2016, Santhanpara Police Station was registered by PW13, the Additional Sub Inspector of Police. PW14, the then S.I., Devikulam Police Station, conducted the investigation and submitted the charge sheet against the accused. On submission of the final report before the jurisdictional magistrate, the case was taken on file as C.P.No.70/2016, pursuant to which the case was committed to the Court of Session, Thodupuzha, which court took the case on file as S.C.No.543/2016. 4. When the accused appeared before the Court of Session, he was furnished with copies of all the prosecution records. On 15/02/2017, the court framed a charge for the offences punishable under Sections 450, 341, 323 and 376 IPC, which was read over and explained to the accused, to which he pleaded not guilty. The prosecution examined PWs.1 to 14 and got marked Exts.P1 to P18 and MO1 series to MO5 series to prove the case. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence. 5. As the Sessions Court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence and adduce evidence in support thereof. The accused denied all those circumstances and maintained his innocence. 5. As the Sessions Court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence and adduce evidence in support thereof. No oral evidence has been adduced by the accused. 6. On a consideration of the oral and documentary evidence and after hearing both sides, the Sessions Court by the impugned judgment, convicted and sentenced the accused to undergo simple imprisonment for one month for the offence punishable under Section 341 IPC; rigorous imprisonment for one year for the offence punishable under Section 323 IPC; rigorous imprisonment for six years and to pay a fine of Rs.10,000/-and in default of payment of fine, to undergo rigorous imprisonment for two months for the offence punishable under Section 450 IPC and imprisonment for life and to pay a fine of Rs.50,000/-and in default of payment of fine, to undergo rigorous imprisonment for one year for the offence punishable under Section 376 IPC. It has also been ordered that if the fine amount is realized, an amount of Rs.45,000/-shall be paid to PW1 under Section 357(1)(b) Cr.P.C. The substantive sentences have been directed to run concurrently. Set off has been allowed from 09/02/2016 till the date of judgment. As the learned Sessions Judge found the compensation ordered to be paid on realizing the fine amount to be inadequate, the District Legal Services Authority was requested to award compensation to PW1 under the Kerala Victim Compensation Scheme, 2014(the Scheme). 7. In the appeal memorandum, it is alleged that the trial court went wrong in relying on the oral evidence which is totally insufficient to prove the offences alleged against the accused. The recovery alleged to have been effected has not been proved by independent evidence. The sentence awarded by the trial court is highly excessive and so the judgment is liable to be interfered with. 8. The point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the accused by the Sessions Court are sustainable or not. 9. Heard Smt. Saipooja, the learned counsel appointed on State Brief for the appellant and Sri.Alex M.Thombra, the learned Senior Public Prosecutor. 10. 8. The point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the accused by the Sessions Court are sustainable or not. 9. Heard Smt. Saipooja, the learned counsel appointed on State Brief for the appellant and Sri.Alex M.Thombra, the learned Senior Public Prosecutor. 10. Before we go into the arguments advanced by either party, we make a brief reference to the evidence adduced by the prosecution in support of the case. In Ext.P1 FIS, PW1 states thus – about five months' back, she along with her husband and daughter have started residence in the house of Aneesh (PW6), which they have taken on rent. She goes for picking cardamom in the nearby cardamom plantations. Yesterday (29/01/2016), her husband had left for Udayagiri in the early morning to attend a funeral. She took her daughter who is attending Anganavadi to the house of her neighbour, Alice chechi. By about 9.30 a.m., Alice chechi along with her daughter left for Anganavadi. She continued to stay there and was engaged in a conversation with Jincy, the daughter-in-law of Alice. By about 11 a.m., she heard the door of her house being opened and the clinging of vessels. Believing that her husband had returned, she returned home. The front door of the house was open. She went inside the house through the front door into the kitchen, opened the door and looked around. She did not see anyone around. So, she closed the kitchen door and bolted it. She went towards the front door. There she saw a person, whom she can identify on sight, who closed and bolted the front door. She asked who he was. The man did not answer/reply. She tried to beat him with a sugar tin kept on the table. The man twisted her right hand/arm and grasped her by the neck. A scuffle ensued between them. She ran into the kitchen and got hold of a knife. The man from behind, put a shawl around her neck and pulled her back. He snatched the knife from her hand. He beat her on her neck and back with his hand and kicked her on her lower back. He tightened the shawl around her neck and pushed her down on the floor of the hall. The man from behind, put a shawl around her neck and pulled her back. He snatched the knife from her hand. He beat her on her neck and back with his hand and kicked her on her lower back. He tightened the shawl around her neck and pushed her down on the floor of the hall. During the course of the fall, she hit her head on the doorpost/jamb of the door (OTHER LANGUAGE). He tore her nighty with the knife, forcibly undressed her, removed his pants and sexually assaulted her. She then took the mobile phone which had fallen on the ground and called Christina (PW2) and cried for help. Hearing her cry, Christina (PW2) and Jincy came running by calling her name. On hearing their voice, the man opened the front door and ran away. Christina (PW2) and Jincy came inside the house. They called out to the other neighbours, who also arrived at the scene, removed the shawl around her neck and dressed her. Thereafter she was taken to a hospital at Bison valley by Christina (PW2) and others. She returned from the hospital after informing the hospital authorities that she would inform her decision after consulting her husband. She informed her husband who returned at night. Then they went to the hospital for treatment. According to PW1, the assailant/rapist was about 27 years old having a height of more than 5 ft., moderately built and had stubble on his face. She can identify the person on sight. The man was wearing a round-collared grey T-shirt and pants. 10.1. PW1, the victim, when examined stands by her case stated in Ext.P1. She identified the accused in the box. She also identified MO1 series, the dress worn by her at the time of the incident; MO2 knife; MO3 T-shirt and MO4 pants stated to have been worn by the accused at the time of the incident. 11. PW2, a neighbour of PW1, deposed that she had been told about the incident by PW1, who on the said day had called her on the phone and sought help. She along with Jincy went to PW1's house. When both of them opened the door, they say PW1 lying on the floor naked. They immediately informed the neighbours. They removed the shawl from her neck, dressed her and took her to the hospital at Bison Valley, Adimali. She along with Jincy went to PW1's house. When both of them opened the door, they say PW1 lying on the floor naked. They immediately informed the neighbours. They removed the shawl from her neck, dressed her and took her to the hospital at Bison Valley, Adimali. PW1 had injuries on her face, which were bleeding. A sugar tin was found on the floor. The dress of PW1 were strewn on the floor. PW2 also deposed that she knows the accused who is her neighbour. 12. PW3, a taxi driver and an acquaintance of PW1, deposed that he had heard about the incident. He knows the accused, a local resident. On the said day, while he was driving past the house of PW1, he saw two to three women running towards the house of PW1. He stopped his car and followed them. He saw injuries on the hands and legs of PW1. There was blood on the floor. PW1 was in a near unconscious state. He along with other women took PW1 to the hospital at Bison Valley. He is an attestor to Ext.P3 seizure mahazar which was prepared when MO2 T-shirt and MO3 pant of the accused were seized by the police. 13. PW4 another acquaintance of PW1, and a labourer/worker in the cardamom plantation of Baby chettan (PW5), deposed that on 29/01/2016 the accused, also a worker in the plantation, was engaged in spraying pesticides. By about 10-10.30 a.m., he came to the store of his employer. He did not see the accused till about 12.45 p.m. There was smell of alcohol in the breath of the accused. On the said day at 10 a.m., as per the instructions of Baby chettan (PW5), when he called the accused for tea, the latter declined the offer and said that he would come in the afternoon for lunch. By about 12.45 p.m., Baby chettan (PW5) received a call informing him that somebody had assaulted PW1. He along with Baby chettan (PW5) went to the house of PW1. However, when they reached there, they were informed that PW1 had already been taken to the hospital. They returned to their work place. When the phone call came by about 1 p.m., he along with the accused were having lunch. PW4 identified MO3 and MO4 as the dress of the accused. 14. PW5, a neighbour of PW1, deposed that he knows the accused. They returned to their work place. When the phone call came by about 1 p.m., he along with the accused were having lunch. PW4 identified MO3 and MO4 as the dress of the accused. 14. PW5, a neighbour of PW1, deposed that he knows the accused. PW4 and the accused are his workers. He came to know about the incident of sexual assault by about 12 noon. The accused on the said day was engaged in the spraying of pesticides in his plantation, on which day he was in the store. Hearing about the incident, he along with PW4 had gone to the house of PW1 by which time, she had already been taken to the hospital. The accused had not accompanied them. When he received the information, the accused after his work was taking lunch. By the time he returned, the accused had already left. The accused had completed the work for the day and without telling him, had left the workplace. The wages for two days were due to him. On the date of the incident, the accused was wearing a violet-coloured T-shirt and a grey-coloured pant. PW5 identified MO3 and MO4. In the cross-examination PW5 deposed that the accused, one of his relatives, is married and has two children. The accused is a speech and hearing-impaired person. According to PW5, normally the work of spraying pesticides would be over by 12.45 to 1 p.m. The work of spraying pesticides is usually done from 8 a.m. till 1 p.m. On the said day the accused was engaged in his work from 8 a.m. till 1 p.m. Quantity of pesticides that was required for the day’s work from 8 a.m. to 1 p.m. had been given. (…...OTHER LANGUAGE.........) According to PW5, if the nozzle is switched on, pesticide would flow out. (OTHER LANGUAGE) The pesticide has an odour and if it falls on the dress, it would remain till it is washed off. A person working in the plantation can identify the smell of pesticide. PW5 admitted that there are several migrant workers residing nearby. In the re-examination he deposed that as part of investigation, when the area was examined, they found that there was an overflow of pesticide as the nozzle had been thrust/pushed/shoved into the plants. (OTHER LANGUAGE.) PW5 admitted that Sabu, the brother of the accused, was also his employee. PW5 admitted that there are several migrant workers residing nearby. In the re-examination he deposed that as part of investigation, when the area was examined, they found that there was an overflow of pesticide as the nozzle had been thrust/pushed/shoved into the plants. (OTHER LANGUAGE.) PW5 admitted that Sabu, the brother of the accused, was also his employee. He denied the suggestion put to him in the cross examination that prior to the incident, Sabu had been terminated from his employment; that both Sabu and the accused had demanded the back-wages, relating to which there were disputes between them. According to PW5, there were never such issues among them. 15. PW6, the owner of the house in which PW1 and family were residing and attestor to Ext.P4 scene mahazar, deposed that he had heard about the incident. The accused, a nearby resident is known to him from his childhood days. When he reached the house of PW1, she was lying exhausted. Initially two women went inside the house. They told him that PW1 was lying naked and so he did not go inside the house. Thereafter PW1 was taken in his car to the hospital at Bison Valley. He was not the person who had taken PW1 to the hospital. 16. PW7, an acquaintance of PW1, deposed that the accused is a nearby resident; that he had heard about the incident; that he is an attestor to Ext.P3 seizure mahazar as per which MO3 shirt and MO4 pant of the accused were seized from the house of the accused, at which time the latter was also present. 17. PW8, Junior Consultant, Pediatrics, Taluk Hospital, Adimali, deposed that on 30/01/2016 at 1.30 p.m., she had examined Syama (PW1) and had issued Ext.P5 certificate in which she has noted down the details of her examination. We will shortly refer to the contents of Ext.P5. 18. PW9, Assistant Surgeon, Public Health Centre, Rajakumari, is the doctor who conducted the potency test of the accused and issued Ext.P6 potency certificate. PW10, the Village Officer, Chinnakkanal, has prepared Ext.P7 site plan. PW11, WCPO, Santhanpara police station recorded Ext.P1 FIS of PW1 on 30/01/2016 at 10 a.m. at the Taluk hospital, Adimali, where PW1 had been admitted in the maternity ward. PW10, the Village Officer, Chinnakkanal, has prepared Ext.P7 site plan. PW11, WCPO, Santhanpara police station recorded Ext.P1 FIS of PW1 on 30/01/2016 at 10 a.m. at the Taluk hospital, Adimali, where PW1 had been admitted in the maternity ward. According to PW12, the Assistant Secretary, Chinnakkanal Grama Panchayat, as authorized by the Secretary and on the request of C.I., Devikulam, he had issued Ext.P8 ownership certificate relating to the building bearing No.52 situated in ward no.1 of the aforesaid Panchayat. The signatory in Ext.P8 is the Secretary and as per the certificate, the owner of the house is one Sivaraj, Thoppil, Society Medu. 19. On the basis of Ext.P1 FIS, PW13, Additional S.I., Santhanpara police station, registered Ext.P9 FIR, i.e., Crime 50/2016 on 30/01/2016 alleging commission of the offences punishable under Sections 450, 341, 323 and 376 IPC. The FIR was forwarded to C.I., Devikulam for investigation. Finally, PW14, C.I., Devikulam, the investigating officer deposed that on 30/01/2016 at 02.30 p.m., he proceeded to the place of occurrence, prepared Ext.P4 scene mahazar, as per which MO1 series clothes and MO2 knife were seized. The said material objects were produced before the court as per Ext.P10 property list. The victim identified the accused, pursuant to which he arrested him. Ext.P11 series are the arrest memo, inspection memo and the arrest notice respectively. MO3 shirt and MO4 pant worn by the accused at time of the incident were seized as per Ext.P3 seizure mahazar from his residence. The said material objects were produced before the court as per Ext.P12 property list. As per Ext.P13 forwarding note, he put in a request for sending the dress of the victim and the accused as well as the nail clippings of the victim taken by the doctor for chemical examination. The chemical report and the FSL report obtained on examination of the material objects are Exts.P14 and P15 respectively. Ext.P16 is the report relating to the name and address of the accused. Ext.P6 is the potency certificate of the accused. On his request, the officers concerned have prepared Ext.P7 site plan and issued Ext.P8 ownership certificate. He questioned the witnesses and recorded their statements. The vaginal swab and smear collected by PW8 on examination of PW1were produced before court as per Ext.P17 property list. PW14 identified the accused in the box. He completed the investigation and submitted the charge-sheet before the court. 20. He questioned the witnesses and recorded their statements. The vaginal swab and smear collected by PW8 on examination of PW1were produced before court as per Ext.P17 property list. PW14 identified the accused in the box. He completed the investigation and submitted the charge-sheet before the court. 20. Now coming to the question whether the evidence on record is sufficient to prove the offences charged against the accused. It was argued on behalf of the accused that the medical evidence does not in any way support the case of rape. Going by the version of PW1, it was a case of forcible and violent rape. If that be so, injuries would certainly have been caused. However, no injuries were seen on the thighs or private parts of PW1. No semen was also found on her private parts. As per the opinion of PW8, the doctor, recorded in Ext.P5 report, there was evidence of vaginal penetration. However, it is also recorded that the final opinion is pending chemical analysis. Ext.P14 chemical report of the vaginal smear and swab does not in any way help the prosecution as no semen or spermatozoa have been detected. Therefore, the argument advanced on behalf of the accused is that there is no evidence of rape and hence the offence punishable under Section 376 IPC, is in no way established. 21. We have already referred to the version of PW1 in Ext.P1 FIS and her version in the box. PW1 in the box stands by her case in Ext.P1 FIS regarding the incident of rape, that is, trespass by a stranger into her house; the causing of hurt; the trespasser overpowering her and the final act of rape. The incident is stated to have taken place on 29/01/2016 at 11.00 a.m. Ext.P1 FIS is seen recorded on 30/01/2016 at 10 a.m. PW1 gives a plausible reason for the delay of one day in informing the police. According to PW1 as well as PWs. 2, 3 and 6, immediately after the incident she was taken to a hospital at Bison Valley. But at that time her husband was not aware of the incident as he was not at home when the incident occurred. She wanted to inform her husband and consult him before further steps were taken in the matter. Saying so to the hospital authorities, she returned home. But at that time her husband was not aware of the incident as he was not at home when the incident occurred. She wanted to inform her husband and consult him before further steps were taken in the matter. Saying so to the hospital authorities, she returned home. By evening when her husband came home, she informed him and thereafter both of them went to the Taluk Hospital, Adimali, where she was admitted. The next day, that is, on 30/01/2016 at 10 a.m., Ext.P1 FIS was recorded. 22. It is true as pointed out by the learned counsel for the accused that the records from the hospital at Bison Valley have not been produced before the Court. This, according to the defence is a deliberate suppression of evidence. Had the said records come before the Court, the first version of PW1 to the doctor about the incident could have been ascertained. This version of PW1 to the doctor who first examined her might probably have been against the prosecution case and that must be the reason which prompted the prosecution to suppress the said records, goes the argument. It is true that it would have been ideal, had the said records from the hospital at Bison Valley also been produced. However, much weight cannot be given to what might have been recorded by the doctor of the hospital at Bison Valley. The doctor may or may not have recorded the alleged cause of the incident and even if it has been recorded that need not be or may not be a complete version. As held by the Apex court in Pattipati Venkaiah v. State of A.P., AIR 1985 SC 1715 , while dealing with the contention that the eye-witnesses did not care to disclose the names of the assailants to the doctor, it has been held that a doctor is not at all concerned as to who committed the offence or whether the person brought to him is a criminal or an ordinary person. His primary concern or duty is to treat the patient, save the life of the person brought to him and inform the police in medico legal cases and not to find out by whom the injury was caused. (See also Bhargavan v. State of Kerala, AIR 2004 SC 1058 ). His primary concern or duty is to treat the patient, save the life of the person brought to him and inform the police in medico legal cases and not to find out by whom the injury was caused. (See also Bhargavan v. State of Kerala, AIR 2004 SC 1058 ). Moreover, in this case the non-production of the aforesaid hospital records has not affected the case materially in the light of the other evidence available on record relating to the incident of rape. 23. As stated earlier, PW1 stands by her case in Ext. P1 FIS. She is seen to have been examined by PW8, the doctor, on 30/01/2016 at 1.30 p.m. In Ext.P5 the alleged cause of incident is seen recorded in detail, in which PW1 is seen to have given a graphic description or details of the incident of rape. According to PW8, on examination of PW1, she found multiple nail marks over both cheeks, left collar bone, linear abrasions over the neck, tenderness over the right fore arm with swelling over the exterior aspect. There was tenderness over the right upper arm. PW1 had pain while moving her right shoulder, tenderness supra pubic region and left hypochondrium. There was blood stained discharge from the vagina. The examination, according to PW8, was consistent with history of sexual assault; that the injuries on the body of PW1 could be suggestive of resistance from the victim and that there was evidence of vaginal penetration. PW8 in the cross examination clarified that she had committed a mistake in recording the date of the incident in Ext.P5 as 30/01/2016 and that the actual date of the incident is 29/01/2016. On examination she found no injury in the vagina. Swab and smear were collected for the purpose of chemical examination to find out the presence of semen. 24. Absence of spermatozoa by itself cannot cast doubt on the prosecution case regarding rape (Prithi Chand v. State of H.P., AIR 1989 SC 702 ). Moreover, PW1 has no case that there was ejaculation and hence Ext.P14 chemical report to the effect that no semen and spermatozoa had been detected in the vaginal swab; smear or pubic hair is of no consequence (Raveendran C.T. v. State of Kerala, 2011 KHC 29 ). In the opinion of PW8, there were signs of vaginal penetration. PW8 has not been cross-examined on this aspect. In the opinion of PW8, there were signs of vaginal penetration. PW8 has not been cross-examined on this aspect. It is true that PW1 is a married lady with a child. The medical examination of PW1 was done by PW8 in the light of the incident of rape. It is in the said background the doctor has opined that there were signs of vaginal penetration, which aspect of her testimony has not been discredited in any way. Moreover, even if the doctor does not report penetration, the same is immaterial because as held in Kunjumon v. State of Kerala: 2011 (4) KHC 72 , the offence of "rape" is not a medical condition. It is not a diagnosis to be made by a medical expert, who examines the victim. "Rape" is an offence defined under S.375 IPC and it is a legal term. It has nothing to do with the ordinary impressions of a layman or a medical expert about sexual intercourse or rape. What type of penetration would constitute sexual intercourse or rape under S.376 IPC is to be decided by the court and not by a medical expert. The court has to decide whether the act committed by the accused constitute "rape", as per law, based on the evidence in each case. 25. Further, merely because there were no injuries on the thighs or private parts of PW1 is also no ground to reject her testimony. Presence of injuries is not a must to prove commission of rape (Ram Singh @ Chhaju v. State of Himachal Pradesh: (2010) 2 SCC 445 ; Hem Raj v. State of Haryana, (2014) 2 SCC 395 ; Krishan v. State of Haryana: (2014) 13 SCC 574 and State of Himachal Pradesh v. Manga Singh: (2019) 16 SCC 759 ). 26. The prosecution also relies on Ext.P2, the 164 statement of PW1 to establish the case. Ext.P2 statement has not been signed by PW1. The Magistrate concerned has recorded that after the statement had been recorded, PW1 had fainted and so had to be taken to the hospital. In such circumstances, her signature could not be obtained in the statement. It was argued on behalf of the accused that Ext.P2 statement is mandatorily required to be signed and as the same is not a signed statement of PW1, it is inadmissible in evidence. We are afraid, we cannot agree to this argument. Sub-sec. In such circumstances, her signature could not be obtained in the statement. It was argued on behalf of the accused that Ext.P2 statement is mandatorily required to be signed and as the same is not a signed statement of PW1, it is inadmissible in evidence. We are afraid, we cannot agree to this argument. Sub-sec. (4) of Section 164 Cr.P.C. dealing with confession of an accused says that, a confession shall be recorded in the manner provided in Section 281 for recording the examination of an accused person and shall be signed by the person making the confession. Ext.P2 is not a confession, on the other hand, it is only a statement made by a witness in the case coming under sub-section (5) of Section 164. The said provision says that any statement other than a confession made under sub-sec. (1) of Section 164 shall be recorded in such manner hereinafter provided for recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case and the Magistrate shall have power to administer oath to the person whose statement is so recorded. The provision does not mandate a signed statement of the witness. 27. It is true that sub-section (5) of Section 164 says that the statement shall be recorded in the manner provided for recording of evidence. What does “recorded in such manner hereinafter provided for recording of evidence”, mean? The provisions obviously are – Sections 264, 274, 275 and S.276. S.264 dealing with summary trial says that the magistrate shall record the substance of the evidence; S.274 (1) dealing with summons cases says, the Magistrate shall make a memorandum of the substance of the evidence in the language of the Court; S.275(3) dealing with warrant cases says that evidence shall ordinarily be taken down in the form of a narrative or any part of such evidence may be in the form of question and answer and finally S.276 dealing with sessions cases says that evidence shall ordinarily be taken down in the form of a narrative or any part of such evidence may be in the form of question and answer. Therefore, none of the aforesaid provisions in Cr.P.C. mandate a signature. Therefore, none of the aforesaid provisions in Cr.P.C. mandate a signature. It is true that Rule 57 of the Criminal Rules of Practice says that the deposition recorded is to be read over to the witness and the last page is to be signed in full by the witness. Here we refer to the dictum in Indra Kumar Patodia v. Reliance Industries Ltd., AIR 2013 SC 426 , wherein the question that came up for consideration before the Apex Court was whether a complaint without the signature of the complainant under S.138 of the Negotiable Instruments Act, 1881, is maintainable when such complaint is verified by the complainant and process is issued by the Magistrate after verification. After referring to various Sections in Cr.P.C. including Section 164(4), it has been held that the Legislature has made it clear that wherever it required a written document to be signed, it would be mentioned specifically in the Section itself, which is missing both in Section 2(d) Cr.P.C. as well as S.142 of the Negotiable Instruments Act. Therefore, we cannot read into the statute something which was never intended by the Legislature. 28. Further, sub-section (5) to Section 164 also says that the statement shall be recorded in such manner provided for recording of evidence as is in the opinion of the Magistrate, is best fitted to the circumstances of the case. In the case on hand, after Ext.P2 statement of PW1 was recorded, the learned Magistrate was unable to obtain the signature of PW1 as the latter had fainted and so had to be taken to the hospital. Law does not insist on doing the impossible. Therefore, merely because Ext.P2 is not signed, that would not mean that the statement is to be discarded. 29. It was further pointed out that whole-scale marking of Section 164 statement has been deprecated and held to be illegal by a Division Bench of this Court in State of Kerala v. Thomas, 2005 KHC 1823. Here the 164 statement of PW1 has been marked as Ext.P2, which is an incorrect procedure and an illegality committed by the trial court, contends the accused. Now even assuming that the trial court went wrong in marking the entire statement, that is only a procedural mistake committed by the court. It is settled law that a 164 statement can be used to corroborate or contradict its maker. Now even assuming that the trial court went wrong in marking the entire statement, that is only a procedural mistake committed by the court. It is settled law that a 164 statement can be used to corroborate or contradict its maker. No contradictions whatsoever have been brought out in the 164 statement of PW1, which also corroborates the testimony of PW1 in the box relating to the offence/incident of rape. The testimony of PW1, which we find no reasons to disbelieve, clearly establishes the commission of the offences of house trespass; wrongful restraint; causing of injury and rape as contemplated under Sections 450, 341, 323 and 376(1) IPC. Therefore the finding of the trial court relating to the incident of rape and other connected offences is certainly justified and deserves no interference whatsoever. 30. Now coming to the all-important question of the identity of the accused. It was pointed out on behalf of the accused that in Ext.P1 FIS, PW1 has only given a vague or broad/general description of the assailant, which is totally insufficient and inadequate to identify the assailant or connect the accused with the crime. Stress was made on the aspect that as PW1 had no prior acquaintance with the accused, a test identification parade (TIP) ought to have been conducted by the investigating officer. As such an exercise has not been done in the case on hand, the identification of the accused for the first time in the dock after the expiry of about one and half years of the incident is worthless and not reliable and so the accused is entitled to the benefit of doubt, goes the defence argument. Reference was made to the decisions reported in Amitsingh Bhikamsing Thakur v. State of Maharashtra, 2007(1) KHC 487, Rameshwar Singh v. State of J & K, 1971 KHC 604 and Raju alias Rajendra v. State of Maharashtra, (1998)1 SCC 169 in support of this argument. 31. On the other hand, it was submitted by the learned prosecutor that there is absolutely no reason(s) to disbelieve the testimony of PW1 who was subjected to a violent sexual assault. There is no reason why she should falsely implicate the accused. This is not a case in which PW1 had only a fleeting glance of the assailant. On the other hand, she had sufficient opportunity to observe the accused and note his distinguishing features. There is no reason why she should falsely implicate the accused. This is not a case in which PW1 had only a fleeting glance of the assailant. On the other hand, she had sufficient opportunity to observe the accused and note his distinguishing features. Her statement regarding the manner in which she was sexually assaulted has a ring of truth. Failure or negligence of the investigating agency in conducting investigation properly, cannot be a ground to discredit the testimony of prosecutrix as she had no control over it. Reference was made to the decisions in State of Punjab v. Gurmit Singh, (1996)2 SCC 384 and Ronny alias Ronald James Alwaris v. State of Maharashtra, (1998)3 SCC 625 in support of the arguments. 32. In Gurmit Singh (Supra) it has been held that in cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable. 33. Here we refer to the decision in State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 : AIR 1990 SC 658 , wherein it has been held that a prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under S.118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the valuation of her evidence as in the case of an injured complainant or witness and no more. She is undoubtedly a competent witness under S.118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the valuation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to S.114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. 34. Keeping the aforesaid aspects in mind, we will now consider whether the evidence on record clearly establishes the involvement of the accused in the crime or whether he has been properly identified as the culprit who committed the sexual assault. In Ext.P1 FIS, PW1 only says that she can identify the assailant/rapist on sight. She has no case of prior acquaintance with the accused. In the box PW1 has a case that before the incident on two earlier occasions, she had seen the accused at work, that is, spraying insecticides in the nearby cardamom plantation. When PW1 was asked whether she had stated so to the police she answered in the affirmative. She has no case of prior acquaintance with the accused. In the box PW1 has a case that before the incident on two earlier occasions, she had seen the accused at work, that is, spraying insecticides in the nearby cardamom plantation. When PW1 was asked whether she had stated so to the police she answered in the affirmative. However, PW11, the WCPO who has recorded Ext.P1 FIS and PW14, the investigating officer admit that PW1 had not stated so. According to PW1, the man/rapist was about 27 years old, having a height of more than 5 feet, moderately built and had stubble on his face. He was wearing a round-collar grey T-shirt and pants. These are the only marks or features given identifying or describing the assailant in Ext. P1 FIS. In the chief examination itself PW1 has stated that electric lights were not on during the incident and that there was only dim light inside the house as the house is surrounded by cardamom plantation (…....OTHER LANGUAGE …....... Page 14 of her deposition). In the cross examination PW1 deposed that she had started residence in the house at Society medu, situated by the side of the road, about a month back and that the same is surrounded by cardamon plantation. At the time of the incident though she was unable to see the assailant clearly, she could approximately make out the person. She had stated his features to the police by which he could be identified. At the time of the incident, the doors and windows were closed. Light was there through the gap between the tiles on the roof. She had given three statements to the police and one statement to the magistrate. In none of the four statements she had stated the presence of light and that she was saying that for the first time in the court. She also deposed that there was no impediment in saying so in her statements. (Society OTHER LANGUAGE. Road side ?. OTHER LANGUAGE Pages 16 & 17 of her deposition). 34.1. PW1 further deposed that her assailant was bald. She had seen his mustache and the finger ring worn by him, the sharp edges of which had caused injuries on her face. She also deposed that her assailant smelt of pesticides. (Society OTHER LANGUAGE. Road side ?. OTHER LANGUAGE Pages 16 & 17 of her deposition). 34.1. PW1 further deposed that her assailant was bald. She had seen his mustache and the finger ring worn by him, the sharp edges of which had caused injuries on her face. She also deposed that her assailant smelt of pesticides. When she was asked whether she had stated the said fact to the police, she replied that she had stated that the man had a body odour. It was like the body odour of Hindi speaking persons/Bengalis. She thought that her assailant was a Hindi speaking man (OTHER LANGUAGE...See pages 19 & 20 of her deposition). She further admitted that there were several Bengalis (migrant/guest workers) residing in the nearby plantations. She was asked whether the police had brought the accused on 09/02/2016 after arresting him, to which she answered that no arrest had been made. She identified the accused when the police brought him before her. She then caught him by his neck and asked why he had raped her. The accused did not respond. During the incident also he did not speak or say anything. (….OTHER LANGUAGE See pages 20, 21 and 22 of her deposition). 35. PW14, the investigating officer, speaks of the manner in which PW1 had identified the accused. PW14 was asked whether PW1 had stated the presence of light during the incident, to which he answered thus-if the doors are closed, one can see like a shadow. Accused did not speak on the date of the incident. Several persons who are speech-impaired were shown to PW1. The accused was taken inside the house. PW1 was made to close the doors and windows. Then in the dim light available, PW1 touched and ran her hands over the face and body of the accused. She smelt his face. Then she caught him by his collar and asked him why he had raped her. She started crying. PW1 then fainted. She regained normalcy after a while and then she identified the accused. No TIP was conducted for identifying the accused. To a question whether he had taken the accused to PW1, he answered in the negative and added that PW1 had identified the accused. PW14 admitted that PW1 had not stated the presence of light in the house at the time of the incident. No TIP was conducted for identifying the accused. To a question whether he had taken the accused to PW1, he answered in the negative and added that PW1 had identified the accused. PW14 admitted that PW1 had not stated the presence of light in the house at the time of the incident. (OTHER LANGUAGE See Pages 14 & 15 of PW14’s deposition). 36. As is evident from Ext.P1 FIS, no identifying features or distinct marks of the assailant has been stated by PW1, for which she cannot be faulted with as the incident took place in dim light. The identification seems to have been all the more difficult for her as PW1 in the chief examination itself has stated that during the course of her fall when the accused pushed her to the ground, her head hit the door post/ jamb of the door. She fell down. After her head hit the door post/jamb of the door, she was disoriented (OTHER LANGUAGE page 7 of her deposition). The description given that the assailant/rapist was about 27 years old, having a height of more than 5 feet, moderately built and had stubble on his face, is too general a description. All the other details of identification come only when PW1 was examined. The incident must have taken at least a few minutes and therefore it is not a case of getting just a fleeting glimpse. The assailant was certainly at close quarters with PW1 during the course of the rape. Her version makes it clear that the assailant had ravished her facing her. But in the light of the testimony of PW1 that she could only approximately make out the assailant as there was only dim light during the time of the incident and as she was disoriented, doubts arise whether the identification is foolproof or has been correctly made. PW1 apparently had no prior acquaintance with the accused. She deposed that she had started residence in the house where the incident took place just a month before the incident. Therefore, apparently, she did not have much time to get acquainted or be familiar with the other residents of the locality. PW1 in Ext.P1 describes her assailant to be a man of about 27 years. But the accused herein is about 45 years old. Therefore, apparently, she did not have much time to get acquainted or be familiar with the other residents of the locality. PW1 in Ext.P1 describes her assailant to be a man of about 27 years. But the accused herein is about 45 years old. Further, in Ext.P1 and in the box, the version of PW1 is that the accused was wearing a grey-colour T-shirt. She identified MO3 T-shirt, which according to her was the shirt that was worn by the assailant at the time of the incident. However, as per the colour description given by the trial court, MO3 is maroon in colour and if the version in the forwarding note and the chemical report is considered or believed, it is deep violet. The evidence regarding the dress worn by the assailant is also inconsistent. Further, going by PW1’s version, initially she thought her assailant was a north Indian (OTHER LANGUAGE) as he had the body odour of Bengalis. (migrant/guest workers). The accused herein is very much a Malayalee. PW1 as well as the other witnesses admit that there were several migrant workers residing in the locality. 37. Further, PW1 by mere sight seems to have been unable to identify the accused. That seems to be the reason why the police recreated the scene. The doors and windows of the house were closed and in the dim light, PW1 ran her fingers over the face and body of the accused. She smelt him and then identified him as the assailant. Therefore, the identification procedure was threefold, that is, by sight, by touch and by smell. The question is whether the manner in which PW1 identified the accused before the police or whether her identification before the police is admissible in evidence? 38. Any statement made by a witness to the police during the course of investigation is a 161 statement and so the bar under Section 162 Cr.P.C. would be attracted, making such statements inadmissible in evidence. The word "statement" under S.161 Cr.P.C. includes both oral and written statement and it will also include signs and gestures. (Asan Tharayil Baby alias Varghese v. State of Kerala, 1982 KLJ 96 ). 39. The word "statement" under S.161 Cr.P.C. includes both oral and written statement and it will also include signs and gestures. (Asan Tharayil Baby alias Varghese v. State of Kerala, 1982 KLJ 96 ). 39. Accused who could be identified by sight by the witness alone need be subjected to T I P. If the witness has previous acquaintance with the accused, there is no point in conducting the T I P with respect to that accused. In the case on hand, PW1 apparently had no prior acquaintance with the accused. 40. In Ramkishan Mithanlal Sharma v. State of Bombay: AIR 1955 SC 104 , one of the questions considered was whether the evidence in regard to the test identification parade held at the instance of the police and under their active supervision was hit by S.162 CrPC? The Apex court after noticing that there was divergence of opinion among the various High Courts on the point, opined that in order to resolve this conflict of opinion, one has to examine the purpose of test identification parades. These parades are held by the police in the course of their investigation for the purpose of enabling witnesses to identify the properties which are the subject matter of the offence or to identify the persons who are concerned in the offence. They are not held merely for the purpose of identifying property or persons irrespective of their connection with the offence. Whether the police officers interrogate the identifying witnesses or the panch witnesses who are procured by the police do so, the identifying witnesses are explained the purpose of holding these parades and are asked to identify the properties which are the subject matter of the offence or the persons who are concerned in the offence. If this background is kept in view, it is clear that the process of identification by the identifying witnesses involves the statement by the identifying witnesses that the particular properties identified were the subject matter of the offence or the persons identified were concerned in the offence. This statement may be express or implied. If this background is kept in view, it is clear that the process of identification by the identifying witnesses involves the statement by the identifying witnesses that the particular properties identified were the subject matter of the offence or the persons identified were concerned in the offence. This statement may be express or implied. The identifier may point out by his finger or touch the property or the person identified, may either nod his head or give his assent in answer to a question addressed to him in that behalf or may make signs or gestures which are tantamount to saying that the particular property identified was the subject matter of the offence or the person identified was concerned in the offence. All these statements express or implied including the signs and gestures would amount to a communication of the fact of identification by the identifier to another person. The distinction therefore made by some High Courts between the mental act of identification and the communication thereof by the identifier to another person was quite logical and such communications tantamount to statements made by the identifiers to a police officer in the course of investigation and come within the ban of S.162. The physical fact of identification has thus no separate existence apart from the statement involved in the very process of identification and in so far as a police officer seeks to prove the fact of such identification, such evidence of his would attract the operation of S.162 and would be inadmissible in evidence. (See also Chellappan Nair v. State of Kerala: 1960 KHC 245). 41. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. TIPs belong to the stage of investigation, and there is no provision in the CrPC, which obliges the investigating agency to hold, or confers a right upon the accused to claim, a TIP. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. TIPs belong to the stage of investigation, and there is no provision in the CrPC, which obliges the investigating agency to hold, or confers a right upon the accused to claim, a TIP. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. They do not constitute substantive evidence and these parades are essentially governed by S.162 CrPC. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (Malkhansingh v. State of M.P., AIR 2003 SC 2669 ; Meesala Ramakrishan v. State of A.P., (1994) 4 SCC 182 ). 42. TIP is not a Magisterial act. It is only a part of investigation or it falls in the realm of investigation. Facts which establish the identity of anything or person/accused whose identity is relevant is admissible under section 9 of the Evidence Act. TIPs are essentially governed by S.162 CrPC. It is for this reason that the identification parade statements given by the witness before the Magistrate during the T.I.P. regarding the identification of an accused fall under Section 164 Cr.P.C (Acharuparambath Pradeepan v. State, 2005(3) KLT 1075 ). 43. Apparently PW14 made no request to a magistrate for the conduct of a TIP. Had the identification spoken to by PW1 been done in a TIP conducted by a magistrate, the same would have been admissible in evidence as statements made under Section 164(5) Cr.PC, provided the legal parameters contemplated in the conduct of a TIP are complied with or followed and the maker of the statements stand by it in the box also. Had the identification spoken to by PW1 been done in a TIP conducted by a magistrate, the same would have been admissible in evidence as statements made under Section 164(5) Cr.PC, provided the legal parameters contemplated in the conduct of a TIP are complied with or followed and the maker of the statements stand by it in the box also. Even a TIP conducted in the presence of a police officer has been held to be inadmissible in the light of S.162 Cr.P.C. (Chunthuram v. State of Chhattisgarh, (2020) 10 SCC 733 ). That being so the identification stated to have been done by PW1 before the police can only be held to be inadmissible in evidence. 44. Further, the recovery of MO3 T-shirt and MO4 pants alleged to have been worn by the accused as per Ext.P3 seizure mahazar is also not free from doubts. PW14 has not even mentioned the place from where the recovery was effected, though in the box, he says that it was seized from the house of the accused. Investigation conducted by PW14 seems to be quite lackadaisical. Our attention was also drawn to the time at which Ext.P9 FIR was registered. The incident in this case took place on 29/01/2016 at 11.00 a.m. Ext.P1 FIS was recorded on 30/01/2016 at 10.00 a.m. As per Ext.P5, PW1 was examined by PW8, the doctor, on 30/01/2016 at 01.30 p.m. The crime number finds a place in Ext.P5. However, as per Ext.P9, the FIR was registered on 30/01/2016 at 19.52 hours, which is apparently after the examination of PW1 by PW8. That being so, PW14 did have a duty to explain how the crime number finds a place in Ext.P5 certificate. It is true that there is no evidence or material brought in to show that any sort of manipulations had been made in the FIR. Even if this defect is ignored, the remaining evidence is still unsatisfactory. 45. The prosecutor also referred to the testimony of PWs. 4 and 5 which would show that the accused was not present at his work site when the incident took place. This according to him is one another aspect to show that the accused was the assailant. The fact that at the relevant time the accused was not at his work site is admitted by the accused in his 313 statement. This according to him is one another aspect to show that the accused was the assailant. The fact that at the relevant time the accused was not at his work site is admitted by the accused in his 313 statement. When the accused was asked his explanation relating to the incriminating circumstances deposed by PW4 and PW5, he answered that at that time he had gone to his mother’s residence. Therefore, at the crucial time he was absent from his work site. Merely because he was absent from the work site, it would not automatically lead to the conclusion that he was the assailant in the light of the other unsatisfactory evidence relating to his identification. This is a case wherein a young woman of 22 years, was subjected to violent rape and her testimony establishes the same and the other connected offences also. However, the evidence on record is unsatisfactory relating to the identification of the assailant. The said evidence does not inspire the confidence of this court. We hasten to add that we do not in any way say that PW1 has deliberately made a false implication or is of the opinion that her sole testimony is not sufficient or that it requires to be corroborated regarding the offence of rape. We reiterate that her sole testimony, which we do not in any manner disbelieve, is sufficient to establish that she was in fact subjected to rape. Our dissatisfaction is regarding the evidence relating to the identification of the accused. The settled position of law is that a mere suspicion, however, strong it may be, cannot be a substitute for acceptable evidence or sufficient to take the place of proof and warrant a finding of guilt of the accused (State of Punjab v. Bhajan Singh, (1975) 4 SCC 472 ; Chandrakant Ganpat Sovitkar v. State of Maharashtra, (1975) 3 SCC 16 ; Ravi Sharma v. State (Government of N. C. T. of Delhi, (2022) 8 SCC 536 ). In the circumstances of the case, we are constrained to hold that the accused is entitled to the benefit of doubt. 46. On enquiry we are told by the Secretary, DLSA, Thodupuzha that on the basis of the recommendation made in the impugned judgment, an amount of three lakh rupees has been paid to PW1 as compensation under the Scheme. In the circumstances of the case, we are constrained to hold that the accused is entitled to the benefit of doubt. 46. On enquiry we are told by the Secretary, DLSA, Thodupuzha that on the basis of the recommendation made in the impugned judgment, an amount of three lakh rupees has been paid to PW1 as compensation under the Scheme. PW1 in her testimony speaks of the physical difficulties she has been facing in the aftermath of the sexual assault. She was earlier prone to fits. The incident, according to her, has aggravated the situation. She also speaks about the financial strain on her husband as she requires frequent medical assistance and treatment. Hence, we recommend that PW1 be given a total compensation amount of four lakhs fifty thousand rupees only, four lakhs rupees being the minimum, to be awarded in a case of rape as per Schedule-II of the aforesaid scheme. She shall be given the remaining amount at the earliest, after deducting the amount already given to her. In the result, the appeal is allowed. The conviction and sentence of the appellant/sole accused for the offences punishable under Sections 450, 341, 323 and 326 IPC by the impugned judgment is set aside and the accused is acquitted under Section 235(1) Cr.P.C. His bail bond shall stand cancelled and he shall be set at liberty forthwith, if not required in any other cases. Registry shall forthwith communicate the operative part of the judgment to the Superintendent of the jail concerned, where the appellant/accused is now detained. Interlocutory applications, if any pending, shall stand closed.