J UDGMENT & O RDER : SHAMIMA JAHAN, J. Heard Mr. A. Gautam, learned counsel for the petitioner. Also heard Mr. P.S. Lahkar, learned Addl. Public Prosecutor for the State respondent and Mr. U. Choudhury, learned Legal Aid Counsel for respondent No. 2. 2. This is a criminal appeal filed against the Judgment & Order dated 02.05.2022 passed by the learned Court of Sessions Judge, Morigaon in Sessions Case No. 72/2021 under Section 376(2)(L) as well as Section 436 of the IPC. By the said Judgment & Order, the appellant was convicted under Section 376(1) IPC and was sentenced to undergo R.I for a period of 10 years with fine of Rs. 5,000/- and in default, to undergo S.I for another period of 1 month. It is this conviction and sentence order that the appellant has challenged in the present appeal. FACTS 3. The FIR was lodged on 21.03.2021 by the victim disclosing that the appellant was living in a house of his in-laws and that on 20.03.2021 at about 12 noon, when the victim went to the house of the appellant for taking bath at his hand pump, the appellant lured her, took her inside his house and after gagging her mouth, forcibly established physical relationship with her. It was also stated in the FIR that the victim was a physically challenged woman and that after the incident, the victim narrated the same to the neighbouring people and on being informed, the neighbours held a meeting but since the appellant did not appear there, the meeting was not conclusive. It was also stated in the FIR that the appellant transferred his family members to some other place and set his house on fire and that he too fled away from the place of occurrence. 4. The Police on receipt of the FIR registered the case as Morigaon P.S. Case No. 194/2021 under Section 376(2)(L) as well as Section 436 of the IPC and on completion of the investigation, submitted Charge-sheet against the appellant under the said provisions of law. Thereafter, on completion of necessary requirements, charges were framed against the appellant under the said provisions, to which the appellant pleaded not guilty and claimed to be tried. Thereafter, on completion of necessary requirements, charges were framed against the appellant under the said provisions, to which the appellant pleaded not guilty and claimed to be tried. During trial, the prosecution examined 8 witnesses including the Medical Officer and the Investigating Officer and upon completion of the prosecution evidence, the appellant was examined under Section 313 Cr.PC, to which the appellant denied all the question. The appellant declined to adduce any evidence on his behalf and on completion of the trial, the learned Court of Sessions Judge, Morigaon, convicted the appellant and sentenced him as stated above. EVIDENCE: 5. PW-1 is the victim and she stated before the Trial Court that in the afternoon hours after she took bath in the house of the appellant, the appellant gagged her mouth and forcibly took her into his house and raped her. She stated that the appellant took her inside his room, laid her on the ground and forcibly established physical relationship with her and thereafter, he drove her out of his house. She also stated that after returning home, she reported the matter to her family members and other villagers and that her husband was not present at that juncture and further that on the next date, she filed the case after a village meeting was held. She also stated that the appellant on the day of occurrence asked her to give the money that she owes him. 6. The victim was cross-examined and during the said examination, she stated that it is not a fact that the appellant did not take her inside his room by gagging her mouth and committing rape upon her. In her cross-examination, she further stated that she had no previous enmity with the appellant on any matter. 7. PW-2, is a neighbor and is also a relative of the victim. She stated that on the day of occurrence at around 11:30 hours while she was taking bath in the hand pump of her residence, the victim on seeing her went to the house of the appellant for taking bath. This witness stated that the house of the victim was in between her house and the house of the appellant. She stated that on the day of occurrence at around 11:30 hours while she was taking bath in the hand pump of her residence, the victim on seeing her went to the house of the appellant for taking bath. This witness stated that the house of the victim was in between her house and the house of the appellant. She further stated that at around 12:30 in the afternoon, she saw the victim coming out from the house of the appellant and further saw the victim lying on the open space of her house and that in the evening hours when she saw the victim weeping and coming to her house, she asked the victim and then the victim told her that the appellant had committed rape upon her at his residence. She was also apprised by the victim that the wife of the appellant was not present in his house. This witness further stated that on the same evening, her family members discussed the matter in presence of the appellant and decided to take a decision on the next morning, but the appellant set fire to his house and fled away with his family members. 8. This witness was put to cross-examination and she stated that the victim was suffering from epilepsy and that she reiterated that the victim told her that the appellant raped her at his residence. 9. PW-3 is another relative of the victim and she stated that the victim at about 6:00 P.M came to her house and told her that when she went to the house of the appellant for taking bath, the appellant raped her. She also stated that in the morning, the appellant set his house on fire and left with his family members. 10. This witness has been subjected to cross-examination and during the same, she reiterated that the victim came to her house and informed her that the appellant raped her. 11. PW-4 is the Doctor and that on 21.03.2021 at around 3:30 P.M, she examined the victim and in her opinion, she stated about no evidence of recent physical inter-course being noted on the victim. However, she found external injuries on the victim and stated that the age of the victim would be around 20-25 years. 12. 11. PW-4 is the Doctor and that on 21.03.2021 at around 3:30 P.M, she examined the victim and in her opinion, she stated about no evidence of recent physical inter-course being noted on the victim. However, she found external injuries on the victim and stated that the age of the victim would be around 20-25 years. 12. PW-5 is another relative of both the victim and the appellant and that he said that at about 4:00 PM, the victim went to his house and told him that the appellant had raped her at his residence. This witness also stated that in the morning, the appellant set fire to his house and left with his family members. 13. This witness was cross-examined by the defence and during the examination, he stated that the appellant was staying in his father-in-law’s property and that he would have got some share from the same. However, he denied that to drive away the appellant from the joint property, the case was lodged. 14. PW-6 is another relative of both the victim and the appellant and he stated before the Trial Court that in the evening hours on 20.03.2021, the victim informed the neighbor that when she went to the house of the appellant, the appellant raped her and that a village meeting was held, but the appellant by setting fire at his house, fled away from the village. 15. This witness during his cross-examination had stated that he did not see any injury mark on the body of the victim on the day of the incident and he further stated that the victim was suffering from epilepsy. 16. PW-7 is another relative of both the victim and the appellant and he stated before the Trial Court that at about 3 PM on 20.03.2021, the victim went to his house and told him that the appellant committed raped upon her. This witness also stated that the appellant set his house on fire and left with his family members. In his cross-examination, this witness stated that he had no knowledge as to whether the victim had taken money from the appellant. 17. The Investigating Officer was examined as PW-8 and he conducted the investigation and apprehended the appellant from Morigaon VIP road and that during interrogation of the appellant, the appellant is stated to have confessed his guilt of rape. 18. 17. The Investigating Officer was examined as PW-8 and he conducted the investigation and apprehended the appellant from Morigaon VIP road and that during interrogation of the appellant, the appellant is stated to have confessed his guilt of rape. 18. During the cross-examination, the Investigating Officer stated that he examined 12 witnesses and that all of them told him that they have heard about the incident of rape from the victim. These are the evidence adduced by the prosecution. 19. Thereafter, the appellant was examined under Section 313 of the Cr.PC during which all the incriminating circumstances were put to him and he replied that he had no knowledge of the same. However, he admitted that the victim used to go to his house for taking bath but on the day of occurrence, he claimed that he did not see her. In his evidence, he further stated that he was forced to marry and was brought to the said village and was made to stay with his wife as ghar jowai. SUBMISSIONS 20. The learned counsel Mr. A. Gautam, appearing for the appellant, raised the following arguments:- (a) The learned Trial Court erred in relying upon the Doctor’s evidence, by which it is stated that there were some external injuries on the victim’s body and by taking re-course to the statement of the victim recorded under Section 164 of the Cr.PC., the learned Trial Court took it as a corroboration to establish the fact that there were injuries on the body of the victim. The learned counsel submitted that statement under Section 164 Cr.PC can be used only for the purpose of corroborating or contradicting the deposition of its maker during trial and that during trial, the victim did not state about injuries. To substantiate his argument, the learned counsel relied on the following three decisions as follows:- (i) Bhuboni Sahu v. The King. (1948-49) 76 IA 147 – at p.153. (ii) State of Delhi v. Shri Ram Lohia, AIR 1960 SC 490 – para. 13. (iii) Md. Ahmed Ali & Ors. V. State of Assam, (1998) 1 GauLR 455 – paras. 9, 12, 16, 17. (b) The counsel further argued that the learned Trial Court erred in not considering the fact that PW-6 deposed before the Trial Court that he did not see any injuries on the body of the victim. 13. (iii) Md. Ahmed Ali & Ors. V. State of Assam, (1998) 1 GauLR 455 – paras. 9, 12, 16, 17. (b) The counsel further argued that the learned Trial Court erred in not considering the fact that PW-6 deposed before the Trial Court that he did not see any injuries on the body of the victim. He submitted that when there is unexplained inconsistency between oral testimony and medical evidence, the prosecution case is discredited. The learned counsel relied on the following two decisions as follows:- (i) Amar Singh & Ors. v. The State of Punjab, (1987) 1 SCC 679 – paras 10, 13 (ii) Viram v. The State of Madhya Pradesh, (2022) 1 SCC 341 – paras. 13, 14 (c) The learned counsel also submitted that the Trial Court erred in not considering the fact that two of the Prosecution Witnesses had stated that the victim was suffering from epilepsy, which had the effect of having injuries on the body. Further, it was in the statement of PW-2 that she saw the victim lying in the courtyard and said that she did not go to her as she suffers from epilepsy off and on. (d) The learned counsel further argued that in absence of any corroboration, the deposition of the victim loses credence and he further submits that the Medical Report supports the appellant, wherein the Doctor stated that there was no evidence of recent sexual intercourse. The learned counsel relied on the following four decisions as follows:- (i) Dilip & Anr. v. State of M.P, (2001) 9 SCC 452 – paras 3, 4, 13, 14. (ii) Sham Singh v. State of Haryana, (2018) 18 SCC 34 – paras 9, 18, 24. (iii) State of Karnataka v. F. Nataraj, (2015) 16 SCC 752 – paras 13, 14, 17. (iv) Raj Hussain v. State of Assam & Ors. (2017) 1 GLR 281 – paras 29, 31. (e) The learned counsel further argued that though the victim stated that upon reaching home after the alleged incident, she informed her family members but the learned counsel argued that none of the family members were examined by the prosecution. (f) The learned counsel further argued that many witnesses, who were arrayed as such in the Charge-sheet were not examined by the prosecution during the trial and non-examination of the witnesses becomes fatal to the prosecution case. (f) The learned counsel further argued that many witnesses, who were arrayed as such in the Charge-sheet were not examined by the prosecution during the trial and non-examination of the witnesses becomes fatal to the prosecution case. The learned counsel relied on the following three decisions as follows:- (i) Habeeb Mohd. v. State of Hyderabad, (1653) 2 SCC 231 – paras 7, 10, 13, 15. (ii) State of U.P. & Anr. v. Jaggo & Ors., 1971 (2) SCC 42 – paras 14, 15. (iii) Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 – para 37. (g) The learned counsel also argued that the witnesses, who deposed before the Trial Court were all hearsay witnesses and the same cannot be relied upon to bring home the guilt of the appellant. These are the grounds on which the appellant had challenged the said conviction and sentence imposed upon the appellant. 21. Per contra, Mr. P.S. Lahkar, learned Addl. Public Prosecutor submitted that the instant case being a case of sexual offence, the evidence of the victim before the Trial Court as well as before the Magistrate needs to be seen and if the same are trustworthy, the same can be believed. 22. The learned Addl. Public Prosecutor had placed the statement of the victim recorded by the Magistrate under section 164 CrPC, wherein she stated that the appellant took her inside his house and forcibly raped her there. She also stated that the appellant gagged her mouth during the said occurrence. He further submits that during the statement of the victim before the Trial Court, the victim had stated similar statement and as such, there was nothing to disbelieve the victim as far as the offence is concerned. He has also placed reliance on the contents of the FIR, wherein the victim had stated similar facts. As such, he submits that the conviction and sentence imposed upon the appellant does not require any interference by this Court. 23. To substantiate his arguments, the learned Addl. Public Prosecutor has placed reliance on the Judgment delivered by the Hon’ble Supreme Court in Phool Singh Vs. State of Madhya Pradesh reported in (2022) 2 SCC 74 , by which the Hon’ble Apex Court observed that if the statements of the victim are consistent before the Court and the Magistrate, the same may be believed and the conviction can be granted. 24. Mr. State of Madhya Pradesh reported in (2022) 2 SCC 74 , by which the Hon’ble Apex Court observed that if the statements of the victim are consistent before the Court and the Magistrate, the same may be believed and the conviction can be granted. 24. Mr. U. Choudhury, learned Legal Aid Counsel for the victim stated that the victim carries the nature of an injured witness and she had stated similarly the fact that she was raped by the appellant before the Trial Court as well as the Magistrate. He stated that there was no reason which could be deduced as to why the victim would implicate the appellant in the offence. He further states that the appellant setting fire to his house and fleeing with his family members shows his conduct, which would be relevant under Section 8 of the EVIDENCE ACT . 25. The learned counsel also submitted that PW-2 had seen the victim coming out from the house of the appellant and lying down in her own courtyard, which would corroborate the offence in question. These are the submissions made by the learned counsels appearing for all the parties. ANALYSIS AND CONCLUSIONS. 26. It is a settled position of law that in cases of sexual offence, the evidence of the victim assumes importance and on the sole basis of the same, conviction can be granted to the accused person provided the statement of the victim inspires confidence of the Court and is trustworthy. It has been held by the Hon’ble Supreme Court that in order to see the consistency and trustworthiness of the statement of the victim, the victim’s statement needs to be seen from the very first stage, i.e., her statement before the Police till her statement before the Trial Court. In Rai Sandeep Vs. State of NCT of Delhi , reported in (2012) 8 SCC 21 , it was held as follows:- “15. In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court.” 27. In view of the same, the statement of the victim before the Police may be examined. In her statement before the Police, the victim stated that she went to the house of the appellant to take bath and when she entered the house of the appellant, the appellant told her that no one was there. However, the appellant told her that his daughters were there and that the appellant by making his daughters go out, embraced her and by pressing her neck raped her inside the house. She also stated before the Police that thereafter, the appellant told her that he loves her a lot and that he would not leave her and that further, the appellant told her that he does not love his wife and by repeatedly telling her that he loves her, established physical relationship with her and that he further told her not to tell the incident to anyone, but then, she told her family members about the same and then village meeting was held. 28. The victim’s statement before the Magistrate under Section 164 CrPC are as follows:- During her statement before the Magistrate, the victim told that on the day of occurrence, she went to the house of the appellant to take bath and that on that day, the wife of the appellant was not there and that the appellant told her that he would give her something to eat and called her inside his house and when she entered his house, he held her neck and took her inside his room and forcibly raped her. She also stated that when the appellant was sexually abusing her, he told her that he loved her a lot and told her not to divulge the incident to anyone. She however stated that she came out and told her family members. She also stated that when the appellant was sexually abusing her, he told her that he loved her a lot and told her not to divulge the incident to anyone. She however stated that she came out and told her family members. She further stated before the Magistrate that 2 days before the occurrence, she was raped by the appellant, which she out of fear did not tell it to anyone. 29. Now the statement of the victim before the trial Court may be considered. Before the Trial Court, the victim stated that while she was returning from the house of the appellant after taking bath, the appellant by gagging her mouth forcibly took her inside and raped her and that the appellant demanded the money that she owes him. She also stated that after taking her inside the room, the appellant laid her on the ground and established physical relationship with her and that thereafter, he drove her out from his house. She further stated that after coming back, she reported the incident to her family members and other villagers. 30. It is noticed that there are discrepancies in the statements of the victim before all the authorities. Before the Police, she stated that she herself went inside the house of the appellant and the appellant replied that there was no one inside except his daughters and that the appellant by telling his daughters to go outside, grabbed her and subsequently raped her. She also stated before the Police that the appellant told her that she love her so much and that he would not leave her and by saying that repeatedly, the appellant established sexual relationship upon her. Whereas, before the Magistrate, the victim stated that when she went to have a bath in the courtyard of the appellant, the appellant called her inside his house by saying that he would give her something to eat and when she went inside, he held her neck and raped her inside the house. The only consistent statement of the victim before the Police and the Magistrate is that during the commission of the offence, the appellant told her that he loved her. Before the Magistrate, she further stated that 2 days before the occurrence, she was raped by the appellant and that out of fear, she did not tell it to anyone. The only consistent statement of the victim before the Police and the Magistrate is that during the commission of the offence, the appellant told her that he loved her. Before the Magistrate, she further stated that 2 days before the occurrence, she was raped by the appellant and that out of fear, she did not tell it to anyone. The appellant calling her to give food inside the house and raping her 2 days before the day of occurrence did not find place in the statement of the victim before the Police. Further, the statement of the victim before the Police that she herself went inside the house of the appellant and that the appellant made his daughters go out also did not find place in the statement of the victim before the Magistrate. 31. The victim before the Trial Court stated that the appellant forcibly took her inside the house by gagging her mouth and by laying her down on the floor, forcibly established physical relationship with her. The victim had not stated any of the facts narrated before the Police or the Magistrate to the Trial Court. One additional statement was made by the victim before the Trial Court that the appellant had asked her the money that she owed him. This shows that there are discrepancies in the statements of the victim before all the authorities, which has the effect of discrediting the evidence of the victim. Further, the statement of the victim did not inspire confidence of the Court. It is held by the Supreme Court in Rai Sandeep (Supra) that not only the core spectrum of the offence should be consistent in the statement of the victim but also the facts surrounding the same should also be consistent. The relevant part is reproduced below:- “Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” 32. In the instant case, although the core spectrum, i.e., the appellant raping the victim remained consistent in all the statement but the facts surrounding the said core spectrum differs and as such, this is not a case where the sole testimony of the victim would be sufficient to bring home the guilt of the appellant. 33. It is a further settled position of law that in case the statement of the victim are not consistent, necessary corroboration from other witnesses should be sought for. In State of Himachal Pradesh Vs. Asha Ram reported in AIR 2006 SC 381 , the Apex Court had observed as follows:- “5. ...It is now well-settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital, unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting 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. It is also a well-settled principle of law that 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 the given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case.” However, in the instant case, it is seen that all other witnesses were reported witnesses, i.e., the victim after the incident had gone and informed the villagers. Again, the timing at which the victim had informed the villagers are different. Again, the timing at which the victim had informed the villagers are different. Further, the medical evidence does not support the statement of the victim, inasmuch as, the victim was examined a day after, i.e., on 21.03.2021 and the Doctor did not find any evidence of recent sexual intercourse. In absence of any corroboration to the statement of the victim, the present case requires interference by this Court. 34. As such, the Judgment & Order dated 02.05.2022, by which the appellant was convicted under Section 376(1) IPC and sentenced to undergo R.I for a period of 10 years with fine and default stipulation be interfered with in the considered opinion of this Court. 35. In view of the discussions made above, the Judgment & Order dated 02.05.2022 passed by the learned Court of Sessions Judge, Morigaon in Sessions Case No. 72/2021 is set aside and quashed. 36. The appellant be released forthwith, if not required in any other case. 37. Send back the Trial Court Record. 38. Matter is disposed of.