JUDGMENT

P. K. TRIPATHY, J. — This appeal has been filed by the appellant challenging the order of conviction for the offence under Sec. 376, IPC in S.T.No. 15/134 of 1993 in the Court of Additional Sessions Judge, Balasore for his conviction under Sec. 376, IPC, appellant has been sentenced to undergo R.I. for seven years and to pay a fine of Rs. 500/-. It has been ordered that if the fine shall be paid the entire sum shall be paid to the prose¬cutrix (P.W.No. 5). That order of conviction was passed on July 20th 1994 and the appellant as stated by learned counsel for the appellant was an under trial prisoner. Therefore, it is stated at the Bar that the appellant has already suffered the imprisonment as per the impugned judgment.

2. While challenging the order of conviction Mr. S.K.Tripathy addressing the Court on behalf of Mr. D.P.Dhal argues that even if the entire logic adopted by the trial Court is correct, then also on a reference to the evidence of the prosecutrix (P.W.6) and the Doctor (P.W.No. 8) and the medical report Ext. 5, that does not make out a case of rape as defined in Section 375, IPC and punishable under Sec. 376 (1), IPC and therefore appellant’s conviction is liable to be set aside. After analysing the facts and evidence, learned Standing Counsel though initially defending the order of conviction under Sec. 376, IPC but on a re-reading the evidence on record, while agreeing to the argument of the appellant regarding no offence under Sec. 376, IPC having been made out, he argues that the evidence on record at least proves a case under Sec. 354, IPC. Learned counsel for the appellant does not dispute to the later part of the conten¬tion of the learned Standing Counsel.

3. To deal with the aforesaid contention raised at the Bar, it is proper to refer to the factual aspect involved in the case. The undisputed position on record is that by the date of occurrence, prosecutrix i.e., P.W.No. 6 was aged about 13 years, that in the evening hours while she was returning to her Master’s house after witnessing the Saraswati Puja at Anganbadi Centre she got the company of the appellant who persuaded her to take a short cut route through paddy fields and thereafter in her evi¬dence P.W.6 alleged against the appellant regarding committing of rape. P.W.6 stated in her evidence that when they reached at the spot i.e., a paddy field appellant wanted to terrorise her on the pretext of existence of spirit and persuaded her to become necked so as to not being harmed by the ghost and when she did not listen to that advice then appellant removed her chadi, made her to lie on the ground and slept over her and committed penetration of his penis to her private parts. According to her at that time appellant gaged her mouth and after discharge of the semen when he removed his hand prosecutrix raised hullah attracting atten¬tion of several persons which includes P.W. Nos. 1 and 2. As noted by the trial Court, those two witnesses (P.Ws. 1 and 2) did not support the prosecution at the time of trial and out of them P.W.No. 2 is the brother-in-law of the accused. The trial Court thus found the hostile attitude of the said two witnesses not detrimental to the prosecution case relating to the allegation of rape. Though at the time of argument, learned counsel for the appellant invited attention of this Court to that aspect while arguing the case for acquittal, after going through such evi¬dence, this Court finds no acceptable argument from the side of the appellant or incorrect approach adopted by the trial Court in that respect. A criminal charge has to be proved by the prosecu¬tion beyond all reasonable doubts by clear, cogent and acceptable evidence. That is the requirement of law. Decision in a Criminal trial should not depend on the whims or mercy of some untrustwor¬thy persons who supported the prosecution at the time of investi¬gation and turned hostile at the time of trial. Of course, if any positive evidence is available from such h