JUDGMENT 1. - This appeal under Section 374 Cr.P.C. is directed against the judgment and order dated 2.8.96, whereby the learned District and Sessions Judge, Jhalawar held the appellant guilty of the offence under Section 376 IPC, convicted him as such and sentenced him to R.l. for 7 years. Smt. Nirmla, the wife of the appellant, had also been tried jointly with him on the charges under Section 366 and 376 r.w. 109 IPC. She was, however, evicted of those offences by the learned trial court. 2. The case of the prosecution in brief is that on 10.11.94 when PW 7 Dilip Kumar reached his house at village Dug at about 10.00 p.m., his step-mother Smt. Rajal told him that her daughter, Kumari Shilpa, aged about 7-8 years had not returned home. On such information PW 7 Dilip Kumar alongwith his business partner searched for shilpa in the Mohalla. The house of the prosecution witnesses and, that of the appellant were adjoining. Therefore, Dilip Kumar contacted the wife of the appellant also in that behalf. It is alleged that Smt. Nirmla, the wife of the appellant told them that Kumari Shilpa had not visited her house that day. PW 7 Dilip Kumar, PW 9 Smt. Rajal, and other members of the family made a search for Shilpa elsewhere also but not finding her at any place again approached the wife of the appellant. This time, it is a case of the prosecution, they made forcefully entry into the room of the appellant which was adjoining to the house of the prosecution witnesses. Allegedly, they found Kumari Shilpa lying on a cot in the room, wrapped with a blanket. According to the prosecution witnesses Kumari Shilpa was in unconscious condition and her clothes were also stained with the blood. The witnesses took her to their house. Dilip Kumar called Dr. PW 1 Dr. Virdchand Mehta from the Government dispensary to his house. On seeing the condition of Kumari Shilpa to Medical Officer advised the witnesses to take the child to the hospital where his wife, who incidentally was also a Medical Officer with him at the dispensary, could examined her. Shilpa was taken to the hospital where PW 2 Dr. Pratibha Mehta examined her. Both the Medical Officers, although found Shilpa bleeding from her genitals, but could not form any opinion regarding the commission of rape on her. Shilpa was taken to the hospital where PW 2 Dr. Pratibha Mehta examined her. Both the Medical Officers, although found Shilpa bleeding from her genitals, but could not form any opinion regarding the commission of rape on her. They, therefore, advised her parents to take her to Bhawanimandi for treatment. Dilip Kumar hired a jeep and took Shilpa to Bhawani Mandi to the Nursing Hospital of one, Dr. Rajesh Agrawal where the doctor admitted Shilpa for the night and gave her necessary treatment. 3. Shilpa regained consciousness in the morning at the hospital of Dr. Agarwal. She, allegedly, told the witnesses that Smt. Nirmla co-accused (since acquitted) had induced her to go to her house to take SITAPHAL (fruit) and when she reached there she was caught-hold of by the appellant and made to lie on a cot, that the appellant removed her under garments and undressed himself also, and committed rape on her. She is further alleged to have stated to the witnesses that during the act of commission of rape on her by the appellant his wife, Smt. Nirmla not only remained present at that place also continued to console her, applied some oil on her private parts, which were bleeding, after the sex-act was over and then she was made to lie-down under a blanket, that in the night her brother Dilip and her mother Smt. Rajal and other persons reached there and took her with them. 4. On knowing the above facts PW 7 Dilip Kumar reached police Station Bhawanimandi, where he presented a written report Exhibit P6 to PW 12 Jitendre Dev, Station House Officer at Police Station Bhawanimandi. Exhibit P6 was presented at the hospital at 5.30 p.m. on 11.11.94. Since, as per report lodged at that police station the offence had been committed within the jurisdiction of police station Dug, PW 12 Jitendera Dev SHO handed over the report to his constable PW 11 Phool Chand for delivering the same at police station Dug. The injured child was referred to the Govt, hospital at Bhawanimandi for necessary treatment. 5. PW 3 Dr. M.L. Ahuja, Medical Officer at Govt. Hospital Bhawanimandi examined PW 8 Kumari Shilpa at 6.00 p.m. on 11.11.94 and noted the following injuries on her person. (a) A lacerated wound over the perimeum, which was extending from the posterior of vaginal cervix 3 x 1.5 cm muscle deep. 5. PW 3 Dr. M.L. Ahuja, Medical Officer at Govt. Hospital Bhawanimandi examined PW 8 Kumari Shilpa at 6.00 p.m. on 11.11.94 and noted the following injuries on her person. (a) A lacerated wound over the perimeum, which was extending from the posterior of vaginal cervix 3 x 1.5 cm muscle deep. (b) A lacerated wound over posterior vaginal wall extending upto cervix, 3 x 1.00 cm. muscle deep. (c) No other external injuries seen over the thighs, chest or any other region. 6. Dr. Ahuja could not form any opinion regarding commission of rape on Shilpa. On clinical examination he opined that Kumari Shilpa was a child, aged about 9-12 years. He seized the blood stained cloth of the child and handed over the same to the police officials. 7. PW 11 Phool Chand Constable at Police Station Bhawanimandi delivered the above-mentioned reports Exhibit P6, Ex.P 7 to PW 13 Hari Singh, SHO at Police Station Dug at 9.45 PM. on 11.11.94. The SHO, registered crime No. 123/94 under Section 376 IPC against the present appellant and commenced investigation. 8. In the course of investigation of the case Hari Singh inspected the room of the appellant. He found certain burning pieces of papers in the room and seized them vide Exhibit P. 10. He further seized a cotton sheet, a cover of GADERA, two piece of cotton cloth which all, according to the SHO, were stained with blood and human semen. He arrested the appellant and his wife, Smt. Nirmla. The seized clothes were deposited by the SHO with PW 4 Shiv Prasad, head-constable. The seized four packets were sent by Shiv Prasad, Head Constable, to Forensic Science Laboratory, Jaipur, through PW 5 Sagarmal constable. However, no report from the F.S.L. was produced either before the trial court or even before this Court. 9. On the basis of the above facts, the learned trial Judge tried the appellant under section 376 and his wife Smt. Nirmla Kumari under section 366, 376 r.w. Section 109 IPC. The plea taken by the appellant at trial was that since he had some altercation with the family of Kumari Shilpa, a few days before the alleged incident, they were falsely implicated in the present case. The appellant had further stated that on the relevant day he was not at his house and that he had gone to his ILAKA on official duty. The appellant had further stated that on the relevant day he was not at his house and that he had gone to his ILAKA on official duty. No evidence in support of such plea was however, produced by the appellant. The learned trial judge believed the prosecution case which was sought to be proved with the testimony of 13 witnesses, examined at the trial, and held the present appellant guilty of the offence under Section 376 IPC, convicted him, therefore, and sentenced him in the manner stated above. 10. Mr. Ravi Kasliwal, learned counsel for the appellant, took me through the entire evidence available on the record of the trial court and submitted that the prosecution story did not inspire confidence and, therefore, the same should have been rejected out-right by the learned trial judge. Mr. Kasliwal highlighted the fact that such a heinous offence can not be committed by any person in the manner and at the time and place as has been alleged by the prosecution to have been committed. The learned trial judge has himself not believed the testimony of Kumari Shilpa as in his opinion Kumari Shilpa was liable to be tutored by elders in the family. Mr. Kasliwal further submitted that not only the testimony of PW 7 Dalip Kumar and PW 9 Smt. Rajal suffers from inherent improbabilities, un-natural conduct at various stages of the case but also the same does not fit in the facts and circumstances of the present case. Mr. Kasliwal pointed out that the prosecution had tried to connect the appellant with the crime of a sexual offence against Kumari Shilpa by getting appellant also examined medically yet on a careful examination of injuries noticed on the person of Kumari Shilpa as also on the person of the accused of the appellant, it can not be concluded that the injuries caused to Kumari Shilpa could have been the result of a sexual assault against her. Mr. Kasliwal further submitted that injuries alleged to have been found present on the male organs of the appellant could very well be the result of rubbing of the male organ which, according to Mr. Kasliwal, was done by the police officials after his arrest. 11. Highlighting these facts Mr. Mr. Kasliwal further submitted that injuries alleged to have been found present on the male organs of the appellant could very well be the result of rubbing of the male organ which, according to Mr. Kasliwal, was done by the police officials after his arrest. 11. Highlighting these facts Mr. Kasliwal submitted that in this state of prosecution evidence, the defence version that Kumari Shilpa might have sustained injuries to her private parts while playing in the GARH alongwith other children can not be said improbable. Mr. Kasliwal thus, submitted that the present case is a case of condemnable false implication of an innocent man present enmity on account of enmity, personal vengeance, ill will and malice 12. Mr. Pratap Singh, Learned Public Prosecutor, on the other hand, submitted that Kumari Shilpa was a teen aged girl and had been sexually abused by the appellant, who was her neighbour. Mr. Singh further submitted that in case of sexual assaults against woman and girls, particularly minor girls, the court should adopt sensitive approach and not look for corroborative evidence which, according to Mr. Singh, was not lacking in the present case, in the form of the injuries found present on the person of not only the ravished girl but also the offender. Mr. Singh further submitted that some facts might be exaggerated in such cases but this court should appreciate that after appreciation of the prosecution evidence, the learned trial judge had believed the prosecution case and, therefore, this court should not disturb such findings of the trial judge. 13. I have given my thoughtful consideration to the submissions advanced before me on behalf of the parties and also minutely examined the record of the trial court. It need not be emphasised that in cases of sexual assaults against woman and girl, which, unfortunately, are on the increase should be approached with utmost sensitivity. It is required to be kept in mind that such offence not only causes physically harm to the ravished lady, but also causes irreparable loss to her reputation and damage to her personality and psychology. The testimony of the prosecutrix in such cases is not that of a accomplice but that of a witness against whom a heinous crime has been committed and may be accepted without any corroboration. The testimony of the prosecutrix in such cases is not that of a accomplice but that of a witness against whom a heinous crime has been committed and may be accepted without any corroboration. For, it is the quality of the evidence and not the quantity or volume of evidence which dictates judicial pronouncement, as per system of administration of justice. Therefore, if in the totality of the circumstances of the case the court can arrive at the conclusion that the ravished woman or girl has been sexually abused then it must ignore minor contradictions or improvements in the statement of the prosecution witnesses, which normally are found in the statements of truthful witnesses. 14. When the prosecution case is examined in the light of the principles stated above I may left in not doubt that the prosecution case does not inspire the least confidence in me. The theory set-up by the prosecution does not fit at all in the facts and circumstances of the present case. The statement of Kumari Shilpa has not been relied by the learned trial judge himself for the reasons stated by him in the judgment. Km. Shilpa is a minor girl, aged about 9- 12 years. She is a child witness. No doubt a child witness is also a competent witness in law and there is no rule of law or evidence that her testimony should not be believed without corroboration. But since children can easily be made to state what their elders want them to state, they are liable to be tutored and may state such facts which are not true. Therefore, it is not safe to rely upon the testimony of a child witness without examining the other fact and circumstances, attending upon the commission of the alleged offence. As a rule of care and caution corroboration independent evidence should be sought before accepting the testimony of the child witness, where his/her testimony appears to be doubtful or running counter to the normal human conduct and behaviour and does not fit in the facts and circumstances of the case. 15. On the face of it, it appears to be quite improbable that Smt. Nirmala, the wife of the appellant, would invite Km. Shilpa to her house with a view or intention that the minor might be raped by her husband and that too in her presence. The statement of Km. 15. On the face of it, it appears to be quite improbable that Smt. Nirmala, the wife of the appellant, would invite Km. Shilpa to her house with a view or intention that the minor might be raped by her husband and that too in her presence. The statement of Km. Shilpa that Smt. Nirmala not only remained present at the place of occurrence at the time of committing rape on her by the appellant but also continue to console her and finally applied oil also to her bleeding genitals, is quite improbable and against the normal human conduct. No lady, worth her salt, would behave like that. Then it is also not believable that Smt. Nirmala would wrap the ravished girl in a blanket, made her lie on the cot and the hurt girl would keep silent. Such testimony of the child witness is not acceptable and is liable to be rejected as being untrust-worthy. 16. For corroborative evidence we have the testimony of PW 7 Dilip Kumar and PW 9 Smt. Rajal. The houses of the parties were quite adjoining and the room wherein the offence is alleged to have been committed against Kumari Shilpa was quite adjoining to the house of the witnesses. A cry raised by Shilpa from the house of appellant could very well reach the house of the prosecution witnesses. The house of the parties were located in the midst of ABADI and it was the month of November. The time of occurrence is said to be around 1.00 p.m. In winter season, members of the houses, particularly females, live at their houses. It can not be accepted easily that at such a time the appellant would dare to commit sexual assault on a teen aged girl. That apart, the appellant had a young girl, Pavitra aged 14-15 years, and boy Arpit, in his house, besides her own wife appellant, it does not appeal to my reasons that a grown-up man like the appellant who was Government servant as a Patwari, would embark on a mis-adventure of this type in his house in the presence of his niece Pavitra and son boy Arpit. It also does not stand to reason that appellant's wife would allow her husband to commit such ghastly crime against a child who was a playmate of her own young children. It also does not stand to reason that appellant's wife would allow her husband to commit such ghastly crime against a child who was a playmate of her own young children. It is in evidence that Kumari Shilpa used to play with the children of the appellant. In-fact, PW 9 Smt. Rajal has stated that Kumari Shilpa had once been taken by the appellant's family to her relatives houses at other places also alongwith other children. When neighbours were having such cordial relations between them and Shilpa used to visit the house of the appellant in that manner, it can not be accepted that the appellant would commit rape on her in the presence of his young children and wife. 17. In so far as the testimony of PW 9 Rajal is concerned that too does not inspire confidence. It does not stand to my reasons that after having not allowed Kumari Shilpa to go to her school on that day on the ground that Smt. Rajal was not feeling well, She would not have care the girl for almost 10 hours. Smt. Rajal was having two other daughters also in her house and it appears quite abnormal that she would not ask her grown-up daughters to make search of Kumari Shilpa if she had not returned home till 10.00 p.m. in the night. Again it is not accepted that on finding her daughter Shilpa in injured and bleeding condition in the house of the appellant she would not have questioned her at that time or subsequently thereafter. 18. For the same reasons the testimony of PW 7 Dalip can also not be believed. It can not be accepted that on finding Kumari Shilpa in injured condition at the house of the appellant he and other members of the family and his friends would not like to know as to what had happened to Shilpa. It is really surprising that though he would call PW 1 Dr. Virochan Mehta at his house but would not disclose to him that Kumari Shilpa had been found in that condition in the house of the appellant. He did not disclose such fact to even Dr. Pratibha Mehta at the Government hospital. Both these husband and wife medical witnesses were simply,told that Kumari Shilpa has sustained some injuries. Virochan Mehta at his house but would not disclose to him that Kumari Shilpa had been found in that condition in the house of the appellant. He did not disclose such fact to even Dr. Pratibha Mehta at the Government hospital. Both these husband and wife medical witnesses were simply,told that Kumari Shilpa has sustained some injuries. Again, it is not notable though PW 7 Dalip would take Kumari Shilpa to Bhawani Mandi in jeep, got her admitted in the hospital of a private doctor Mr. Agrawal would keep her there till evening of 11.1.94 but would not like to report the incident to the police officers at Bhawanimandi before 5.30 p.m. against. It is abnormal conduct that PW 7 would first like to contact an advocate at Bhawanimandi and would also have discussion with other members of his group and would then present written report at the police station Bhawanimandi. Strangely, such report was not addressed to the S.H.O. Police Station but to the Dy. S.R As stated earlier by PW 13 Hari Singh and PW 12 Jitender Dev, it was after the presentation of the report that Kumari Shilpa had been referred to the Government hospital at Bhawanimandi where PW 3 Dr. M.L. Ahuja had examined her at 6.00 p.m. on 11.11.94. Though, PW 7 Dilip stated that in the morning Kumari Shilpa had narrated to him what happened with her at the house of the appellant yet Dilip Kumari did not like to report the matter to police. All these facts brought on record disclose an unnatural and abnormal human conduct and, therefore, this witness too can not believed. 19. I agree with the learned P.P. that in such cases, of sexual assault against woman and girl delay should not be given undue consideration as the family member take some time in making up their mind before lodging report. But if the delay appears to have been caused due to abnormal or unnatural conduct of the close relations of the ravished woman or girl and the theory advanced by the prosecution does not fit in the facts and circumstances of the given case, then delay caused in lodging FIR can not be over-looked by the Court. In the instant case, the delay coupled with unnatural and abnormal conduct of PW 7 Dalip causes great doubt in the truthful character of the prosecution case. 20. In the instant case, the delay coupled with unnatural and abnormal conduct of PW 7 Dalip causes great doubt in the truthful character of the prosecution case. 20. It may also be pointed-out that though the blood stained Shirt of the girl and certain blood stain clothes from the house of the appellant were allegedly seized and sent to FSL ai Jaipur for medical examination yet the evidence in that behalf too is not acceptable. If the appellant could have thought of to burn certain papers, which according to the investigating officer appear to be love letters, it is surprising that he or his wife would not have thought of destroying blood stained seats, cover of the GADERA or the other piece of cloth which were evidence of offence. Strangely enough, the Malkhana in-charge made no entry in the Malkhana register regarding the safe custody of such articles in Malkhana. There is no evidence that such packets were ever deposited in the Malkhana or not. No such clothes were ever produced by the prosecution in the trial court. Nor a report of the chemical Examiner brought on record of the case. 21. To sum-up, in the totality of the circumstances, there is no escape from the conclusion that the prosecution had failed to prove their case against present appellant beyond doubt. On the contrary, the theory advanced by the appellant in this case is found highly probable. In my considered opinion it is clearly a case of false implication of totally on innocent man. This court records it displeasure over the approach adopted by the Investigating Officer at the investigation stage and by the learned trial judge at the trial stage. The appellant was a Govt, servant and the authorities concerned should have been cautious before depriving him of his liberty and bread and butter to his children. 22. In the result, the judgment and order, under appeal are hereby set-aside, the appellant acquitted of the offence under Section 376 IPC and the appeal is allowed. The appellant, if he is in jail, shall be set to his liberty, if not wanted in any other case.Appeal Allowed, Conviction Set Aside, Accused Acquitted. *******