Judgment Sunil Kumar Garg, J.-This appeal has been preferred by the accused appellant against the Judgment and order dated 1-5-2000 by which the learned Additional Sessions Judge Nimbaheda convicted the accused appellants for offence under Section 376(2)(f), IPC and sentenced him to 10 years’ R.I. and a fine of Rs. 500/-and in default of payment of fine, to further undergo 3 months’ S.I. 2. This appeal arises in the following circumstances: (i) On 16-3-99 at about 6-30 p.m. P.W. 8 Smt. Pushpa lodged an oral report Ex. P/il before P.W. 12 Brijendra which was reduced by P.W. 12 Brijendra in writing and the same is marked a Ex. P/il, stating that on that day, at about 5 p.m. when she was going to market along with her daughter, Jyoti P.W. 9 aged 4 years (hereinafter referred to as “the prosecutrix”) on the way accused appellant who was brother of P.W. 8 Smt. Pushpa met him and he told him that he had come from Nimbaheda and he went to her house along with her daughter, P.W. 8 Smt. Pushpa told him that she would also come after taking vegetable. Thus, the accused appellant went to her house along with the prosecutrix. It is further stated in the report Ex. P/i 1 that after 20 minutes when P.W. 8 Smt. Pushpa reached her house, she found that doors were closed and from the room, she heard the cries of her daughter P.W. 9 Jyoti. Thereafter, she pushed the door and and door was opened and she saw that the accused appellant was committing rape with her daughter P.W. 9 Jyoti. Seeing P.W. 8 Smt. Pushpa, the accused appellant stood up and told P.W. 8 Smt. Pushpa that since he was brother of P.W. 8 Smt. Pushpa, he should not be blamed and she also called her husband P.W. 1 Jaggunath and she found that blood was coming from vagina of the prosecutrix and thereafter she was brought to Bengali doctor Govind Kumar P.W. 2, who told her that the prosecutrix be sent to Government Dispensary. Thereafter she went to Government Dispensary, but she did not find anyone there and in these circumstances, the report was lodged by P.W. 8 Smt. Pushpa. (ii) On this oral report P.W. 12 Brijendra chalked out FIR Ex. P/13 and started investigation. (iii) During investigation, Bushirt and Kachchha of the accused appellant were seized through Ex. Thereafter she went to Government Dispensary, but she did not find anyone there and in these circumstances, the report was lodged by P.W. 8 Smt. Pushpa. (ii) On this oral report P.W. 12 Brijendra chalked out FIR Ex. P/13 and started investigation. (iii) During investigation, Bushirt and Kachchha of the accused appellant were seized through Ex. P/3 and accused appellant and the pro secutrix were got medically examined and the medical report of P.W. 9 Jyoti Pushpa is Ex. P/17 which was prepared by doctor P.W. 13 Dr. Umesh Chandra. (iv) After usual investigation a challan was filed for offence under Section 376(2)(i IPC before the learned Magistrate from where the case was committed to the Court of additional Sessions Judge, Nimbaheda. 3. Thelearned Additional Sessions Judge vide order dated 16-7-99 framed charge for offence under Section 376(2)(f) IPC against the accused appellant who pleaded not guilty and claimed trial. 4. During trial, 13 witnesses were produced on behalf of the prosecution and statement of accused appellant was recorded under Section 313, Cr. P.C. and no evidence was led in defence. 5. Thelearned Additional Sessions Judge vide Judgment dated 1-5-2000 convicted the accused appellants holding that: No doubt that the mother of prosecutrix P.W. 8 Smt. Pushpa and other witnesses have been declared hostile, but he found the evidence of doctor P.W. 13 Dr. Umesh Chandra as well as father of P.W. 9 Jyoti i.e. P.W. 1 Jaggunath and on the basis of these two evidence, he convicted and sentenced the accused appelant as stated above. 6. Aggrieved from said Judgment and order, this appeal has been preferred from jail by the accused appellants 7. In this appeal it has been argued on behalf of the accused appellant that there is no legal evidence to support the case that the rape was committed by the accused appellant. 7-A. On the other hand, the learned counsel for the State submits that the Judgment of the trial Court is based on correct appreciation of evidence and does not call for interference by this Court. 8. I have heard both the parties and perused the record and impugned Judgment . 9. So far as statement of P.W. 13 Dr. Umesh Chandra is concerned who has proved the medical report Ex. 8. I have heard both the parties and perused the record and impugned Judgment . 9. So far as statement of P.W. 13 Dr. Umesh Chandra is concerned who has proved the medical report Ex. P/17, it appears that on 16-3-99 he examined P.W. 9 Jyoti who was child of 3 years and found that rape was committed with her. Thus from the statement of P.W. 13 Dr. Umesh Chandra it appears that P.W. 9 Jyoti was subjected to sexual assault. 10. Thenext important question is whether rape was committed by the accused appellant or not with P.W. 9 Jyoti. 11. Sofar as age of P.W. 9 Jyoti is concerned, the same is near about 3 and 4 years and she has been produced by the prosecution as P.W. 9 Jyoti and there are remarks of the Court that when she was asked her name, she did not reply and therefore, her evidence was not taken. Thus, in the present case, the evidence of prosecutrix P.W. 9 Jyoti is nil. 12. The important evidence in the present case is of P.W. 8 Smt. Pushpa who is mother of the prosecutrix. She has been declared hostile and she does not support her earlier version given in the oral report Ex. P/i 1. Thus so far as statement of P.W. 8 Smt. Pushpa is concerned, it does not connect the accused appellant with the commission of so called crime, though the accused appellant is brother of P.W. 8 Smt. Pushpa i.e. another matter. 13. P.W. 1 Jaggunath is the witness who is father of P.W. 9 Jyoti and husband of P.W. 8 Smt. Pushpa and on his statement, learned Additional Sessions Judge has placed reliance. P.W. 1 Jaggunath has stated that he was told by his wife i.e. P.W. 8 Smt. Pushpa that the rape was committed by the accused appellant with her daughter P.W. 9 Jyoti. He has further stated that her daughter P.W. 9 Jyoti did not tell him anything. 14. Inmy opinion, this statement is also not of much importance in the sense that source of information of P.W. 1 Jaggunath is P.W. 8 Smt. Pushpa and the same has been declared hostile. In these circumstances, the version which he has given loses its importance. 15. Apart from that, other witnesses who were neighbours, have also been declared hostile. 14. Inmy opinion, this statement is also not of much importance in the sense that source of information of P.W. 1 Jaggunath is P.W. 8 Smt. Pushpa and the same has been declared hostile. In these circumstances, the version which he has given loses its importance. 15. Apart from that, other witnesses who were neighbours, have also been declared hostile. P.W. 2 Bengali Doctor Govind Kumar before whom P.W. 8Smt. Pushpa first brought her daughter P.W. 9 Jyoti, has been declared hostile and does not say anything against the accused appellant. P.W. 3 Ajij Khan and P.W. 4 Bholiram have also been declared hostile. Another witness P.W. 11 Om Prakash has also been declared hostile. Thus, in my opinion, the evidence which is available in the present case is not sufficient to connect the accused appellant with the commission of crime. The only evidence which is available is of P.W. 1 Jaggunath who is not an eyewitness of the case and his source information is P.W. 8 Smt. Pushpa who has been declared hostile. Declaration of hostile of P.W. 8 Smt. Pushpa has some importance as she is mother of prosecutrix and further more she lodged report Ex. P/li. In these circumstances, if she does not say anything against the accused appellant, in the present case, there is no legal evidence to connect the accused appellant with the commission of the crime. 16. Suspicion is no proof , however strong it may be. In the present case also, when P.W. 8 Smt. Pushpa has been declared hostile and P.W. 9 Jyoti who is child of 4 years does not say anything, in these circumstances, the whole case is based on suspicion and on that basis, the conviction cannot take place however grave it may be. For the aforesaid reasons, the findings of learned Additional Sesions Judge by which he convicted the accused appellant for offence under Section 376(2)(f) cannot be sustained and they are liable to be set aside and the accused appellant is entitled to acquittal of the said charge. Accordingly, the appeal is allowed the Judgment and order dated 1-5-2000 passed by the learned Additional Sessions Judge, Nimbaheda in Sessions Case No. 32/99 by which he convicted the accused appellant for offence under Section 376(2)(f) are set aside and the accused appellant Nathu Nath is acquitted of the said charge. Accordingly, the appeal is allowed the Judgment and order dated 1-5-2000 passed by the learned Additional Sessions Judge, Nimbaheda in Sessions Case No. 32/99 by which he convicted the accused appellant for offence under Section 376(2)(f) are set aside and the accused appellant Nathu Nath is acquitted of the said charge. He is in jail, he be released forthwith if not wanted in any other case.