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The question is whether the evidence of victim girl coupled with her statement recorded under Section 164 Cr.P.C. in such state of circumstances can alone form the basis of conviction. The Trial Court put much emphasis upon the testimony of victim girl together with her statement recorded under Section 164 Cr.P.C., since it was given by a twelve (12) year old girl, and formed the same basis of conviction after attracting the presumption available under Section 29 of POCSO Act, for no contrary circumstances in denial of the offence having been established by the accused/appellant.

In the case in hand, not only once, but twice victim was medically examined, and both the doctors consistently ruled out the possibility of committing any penetration upon the victim for want of any symptoms being exhibited on her person including her private parts. PW-4/doctor coming a step further stated that he did not find any injury on valva or vagina. Not even the redness or tenderness was noted by PW-4/doctor. Hymen was also found intact. It is nobody's case that because of intervention of delay caused in the medical examination of victim girl, the probable medical evidence found on the person of victim disappeared. So, neither there was evidence suggestive of attempt of rape, nor commission of rape upon the victim girl. Proof of penetrative sexual assault in terms of Section 3 of POCSO Act is must, without which there cannot be any aggravated penetrative sexual assault and that too upon a girl of below twelve (12) years of age. Since medical evidence of the two doctors will not attract any of the eventualities mentioned in Section 3 of POCSO Act, it would be very difficult and doubtful also in such circumstances to believe the version of victim, as testified during trial merely upon consideration of the statement of victim girl given during trial together with her statement recorded under Section 164 Cr.P.C.

The oral testimony of victim claiming to have been violated not being supported by the two doctors upon their medical examination, accordingly would render her testimony to be improbable and not natural also. The credibility of such a witness being thus tainted with doubt for the medical evidence of two doctors, it will hardly pave the way for attracting the presumption available under Section 29 of POCSO Act. The decision referred by the appellant on this issue delivered in the case of Subrata Biswas (supra) was thus profitably attracted to take care of the situation discussed hereinabove.

Here in this case nothing was undertaken by the investigating agency even by subjecting the victim girl to Ossification Test. The learned Trial Judge having attracted Section 5(m) of the POCSO Act, holding the victim to be less than twelve (12) year old, in all fairness of the trial, there ought to have been sufficient adherence to the decision reported in Jarnail Singh (Supra) for determination of age of the victim of a crime being alleged rape survivor. The testimony alone of victim girl as such in the given set of facts claiming her to be twelve (12) year old would not itself be sufficient to attract the prosecution case within the meaning of 5(m) of POCSO Act, for want of sufficient corroborative evidence being adduced to that effect.