JUDGMENT Jasbir Singh, J. - Appellant has filed this appeal against judgment and order dated 13.11.1998, vide which he was held guilty, convicted for commission of offence under Section 376(2)(f) Indian Penal Code, sentenced to undergo RI for a period of ten years and to pay a fine of Rs. 3,000/-. In default of payment of fine, he was to undergo further RI for a period of one year. 2. Briefly, it was case of the prosecution that Poonam, the prosecutrix was a student of 3rd standard and on 12.12.1997, at about 3.00 p.m. when she had gone to bank of a pond, situated near school building to clean takhti, then appellant/accused came there, physically lifted her and took her towards back side of the school building. She was made to lie down on the ground on a sheet of cloth. Her clothes were taken off and the appellant/accused committed rape on her. She was threatened to face dire consequences if incident was disclosed to anybody. Due to fear, on arrival at her house, she did not narrate that incident to any member of his family. On next Monday, when she changed her school uniform, her mother noticed blood stains on her clothes, on being questioned, she narrated the entire story. Her father was not available. Her mother brought this matter to the notice of Ram Rup, grand father of the prosecutrix, at whose instance, FIR was recorded. 3. Prosecutrix was medico-legally examined. Her statement was recorded by Sub-Divisional Judicial Magistrate at Hansi on 5.3.1998 under Section 164 Criminal Procedure Code During investigation, regarding her presence in school certificate Ex. PE/1 was obtained from Government High School, Singhwa Khas. As per statement made by Ram Rup (Ex. PH), on 12.12.1997, a young man had committed rape on her grand daughter in the manner as described above. During medical examination of the prosecutrix, vaginal swab and cloths (salwar) of the prosecutrix was sent to Forensic Science Laboratory, Haryana at Madhuban. As per report, neither blood nor semen was detected on swabs whereas blood stains were noticed on cloths. 4. Appellant/accused was arrested for commission of offence under Section 376 Indian Penal Code. On completion of investigation, final report was submitted in court for trial. Trial Court framed charge-sheet against appellant/accused to which he pleaded not guilty and claimed trial. As per report, neither blood nor semen was detected on swabs whereas blood stains were noticed on cloths. 4. Appellant/accused was arrested for commission of offence under Section 376 Indian Penal Code. On completion of investigation, final report was submitted in court for trial. Trial Court framed charge-sheet against appellant/accused to which he pleaded not guilty and claimed trial. Prosecution produced as many as 12 witnesses and also brought on record documentary evidence to prove his guilt. On completion of prosecution evidence, statement of appellant was recorded under Section 313 Criminal Procedure Code, wherein he denied all the allegations appearing against him in prosecution evidence to toto. He further stated that he had falsely been implicated. It was case of mistaken identity. He was shown to the prosecutrix in the presence of relatives and parents, in school, for identification but she could not identify anybody as a culprit. However, he was arrested on the night of 28th December, 1997. He also led evidence in defence. 5. Trial Court on appraisal of evidence, as led by both the parties, found him guilty, convicted and sentenced as found mentioned in para 1 of this judgment. 6. Mr. Baldev Singh, Senior Advocate, appearing for the appellant, has vehemently contended that the prosecution had miserably failed to establish identity of the appellant as an accused. By referring to statements Ex. PH of the prosecutrix and Ram Rup (PW-8) in Court, he has argued that all these witnesses and other evidence on record had failed to connect the appellant/accused with the alleged crime. No identification parade was conducted, due to some strained relations with Ram Rup, appellant had falsely been implicated in this case. He has further stated that neither in FIR nor in statement of prosecutrix made under Section 161 Criminal Procedure Code, name of the appellant was mentioned as an accused. 7. He also brought it to the notice of the Court that presence of one young girl Oonam was admitted at the place of occurrence, even by the prosecutrix, when allegedly she was taken away forcibly by the appellant/accused, that girl was never sighted (cited ?) as a witness, however, she had appeared as a defence witness and had denied that any such occurrence had ever taken place on the alleged date. He further stated that FIR is a delayed one and during intervening period, padding by the prosecution and accordingly false implication of the appellant could not be ruled out. He, by referring to defence evidence on record, has stated that it was more reliable and had wrongly been ignored by the trial Court. He prayed that in view of shaky evidence of the prosecution, judgment and order under challenge be set aside and appellant/accused be acquitted of the charges framed against him. 8. Arguments raised by counsel for the appellant have vehemently been opposed by Mr. Yash Pal, D.A.G., Haryana, appearing for the State/respondent. He, by referring to evidence on record, argued that the guilt of the appellant/accused was proved on record. He was identified by the prosecutrix during morning school assembly, as such, it amounts to his identification. He further stated that medical evidence clearly indicated towards commission of rape. Prosecution, by leading oral as well as documentary evidence had successfully brought home guilt of the appellant/accused, as such, his conviction and sentence was justified. He prayed that appeal, having no substance be dismissed. 9. After hearing counsel for the parties, this court feels that no benefit of delayed FIR can be given to the appellant/accused. Delay, in view of the circumstances explained by the prosecution, was natural. Record shows that the prosecutrixs was a small child of 10 years only. Alleged accused, after committing rape upon her, had threatened her with dire consequences in case she reported this matter to her family members. She was under fear. Matter came to the notice of her mother only on next Monday i.e. after three days when she put off her school uniform to wear fresh clothes. On detection of blood stains on her cloths, when she was questioned, she narrated the entire story to her mother. Father was not available and was away, matter was brought to the notice of her grand father, the complainant and only thereafter, FIR was recorded on 21.12.1997. Otherwise also, in such like matters, where honour of entire family is at stake, family members will take some time to deliberate and it requires a lot of courage to report the matter to the police. Delay is natural in such like cases, as such, no benefit on account of delay can be extended to the appellant. 10. Otherwise also, in such like matters, where honour of entire family is at stake, family members will take some time to deliberate and it requires a lot of courage to report the matter to the police. Delay is natural in such like cases, as such, no benefit on account of delay can be extended to the appellant. 10. It is unfortunate that heinous crime had been committed against a child of 10 years of age. Now keeping in view facts of this case, it is to be seen whether it was the appellant who had committed that offence or somebody else ? 11. As per allegations, offence was committed on 12.12.1997 at 3.00 P.M. FIR was recorded on 21.12.1997. Perusal of FIR Ex. PH indicates that name of the alleged accused was not given. It had only been stated that one young boy had committed that offence. Complainant Ram Rup, grand father of the prosecutrix was examined in Court as PW-8. In his examination-in-chief, he had categorically stated that name of the culprit as Rajbir was told to him either on 20th or 21st December, 1997 and his statement was recorded by the police on 21.12.1997. Strangely enough, despite knowing name of the culprit, it was not mentioned when, on his statement, FIR (Ex. PH) was recorded. In his cross- examination, he had stated that he did not know the name of the culprit, when FIR was recorded. In view of this, when he came to know about identity of the accused, his supplementary statement was necessary to be recorded, which was not done. As against this PW-7, the prosecutrix had stated that she, in the company of her mother and grand father, had a round in class room of upper classes to identify the culprit. Search which started when blood stains were detected by her mother on her cloths, continued for 3/4 days in the school. Culprit could not be identified in that process. It had further been stated that police had shown almost all the students from 6th standard to 10th standard to her. She had further stated that thereafter, she had identified the accused in morning assembly in the school. His name was told to her by her grand father. 12. It is an admitted case that before arrest on 28.12.1997, no identification parade was conducted by the police officials. She had further stated that thereafter, she had identified the accused in morning assembly in the school. His name was told to her by her grand father. 12. It is an admitted case that before arrest on 28.12.1997, no identification parade was conducted by the police officials. Under these circumstances, there existed a doubt regarding identity of the culprit. Prosecutrix was taken to class-rooms to identify the culprit. Almost all the students were shown to her. This exercise continued for 3/4 days. She could not identify the accused. However, suddenly, it was case of the prosecution that, in the morning assembly, she had identified Rajbir, appellant as an accused. But no teacher from the school had been produced in Court to authenticate that fact. It is on record that the appellant/accused remained in school from 13th to 28th December, 1997 continuously. Neither the prosecutrix PW-7, nor his grand father PW-8 had explained the circumstances in which and on what date, appellant was identified as an accused in the School. 13. Investigating Officer PW-11 had given a different story. He had stated that on 27.12.1997, he along with some other police officials, was available at Bus stand, some people gathered there, by chance, appellant/accused had passed from that side. The prosecutrix, who was present, pointed towards the appellant and told her grand father that he was the culprit, Rup Ram then brought that fact to his notice. Similarly on next day, Investigating Officer again went to that place and in the same manner, the prosecutrix pointed out towards accused, when he was going towards his school. However, Investigating Officer had categorically stated that he had not recorded statement of any witness on 27th or 28th December, 1997 regarding identification made by the prosecutrix. 14. Investigating Officer had further admitted that he did not arrange any identification parade before or after arrest of the accused, as the accused had refused to take part in identification parade. On further cross- examination, this witness had stated that he did not re-collect if any note was made in police diary, regarding refusal of the accused for identification parade. The circumstances, referred to above, cause a doubt in the mind of the Court regarding identity of the appellant as an accused in this case. 15. On further cross- examination, this witness had stated that he did not re-collect if any note was made in police diary, regarding refusal of the accused for identification parade. The circumstances, referred to above, cause a doubt in the mind of the Court regarding identity of the appellant as an accused in this case. 15. Furthermore, even as per case of the prosecution, the prosecutrix was medically examined on 23.12.1997 i.e. after about 11 days of the alleged occurrence. PW-9, Dr. Himani Gupta had stated that she had detected 1/2 cm x 1/2 cm healed wound over the left knee. On local examination, she found fresh bleeding, hymen was torn freshly, little ooz of blood was present. Urethera was swollen. She had further stated that vaginal examination was not possible due to extreme tenderness. This witness had further stated nature of injury on knee joint was simple and duration was approximately 3 to 4 days. This witness had admitted that newly torn wounded hymen will get fully healed within 3 to 4 days. Oozing of blood stops after one or two days. This witness had further stated that it is likely that, even the penis get injured if sex act is committed with a female of tender age. Record shows that the appellant/accused was also medico-legally examined on 30.12.1997. No injury was also found by the doctor PW-1 on his private part. 16. In defence, appellant had produced Rajinder Singh, Science Teacher as DW- 1, who had categorically stated that appellant was student of 9th class, he was not present in school on 12th December, 1997. Thereafter he had regularly attended classes, during the period between 12.12.1997 to 28.12.1997. This witness was posted in that school in the month of December, despite that no question was put to him regarding circumstances under which appellant was pointed out as an accused by the prosecutrix in school assembly. 17. In statement, Ex. PH, complainant Ram Rup had admitted the presence of one girl Oonam at the time of occurrence. In her statement also, the prosecutrix PW-7 had categorically admitted that one girl Miss Oonam daughter of Ram Phal was present with her at the bank of pond from where she was allegedly taken away by the appellant/accused. 17. In statement, Ex. PH, complainant Ram Rup had admitted the presence of one girl Oonam at the time of occurrence. In her statement also, the prosecutrix PW-7 had categorically admitted that one girl Miss Oonam daughter of Ram Phal was present with her at the bank of pond from where she was allegedly taken away by the appellant/accused. On further cross-examination, prosecutrix had stated that when she was being lifted away, her classmate Poonam @ Oonam had asked the appellant to leave her as she had caused no harm to him. Appellant did not pay any heed to her comments and she had left for her house towards village. Miss Oonam @ Poonam daughter of Ram Phal had put up appearance as DW-2 and she had categorically stated that no such incident had ever occurred in her presence. The prosecutrix was never lifted away, as alleged, by anybody. This witness had further stated that the police had come to the school on 23.12.1997. Almost for a week, exercise was made to enable the prosecutrix to identify the culprit amongst the students at the time of prayer assembly but she failed. 18. DW-3 had brought on record certain documents to show that Ram Rup, complainant was in the habit of indulging in litigation. It is also a fact that both appellant and the prosecutrix belong to the same village, studying in the same school, having strength of 200 students only (as stated by DW-2). 19. All these facts clearly indicate that prosecution had failed to establish identity of the appellant as an accused beyond a shadow of reasonable doubt. 20. Their Lordships of Supreme Court in Prahlad Singh v. State of Madhya Pradesh, 1998 Supreme Court Cases (Criminal) 123, under similar circumstances, had opined that "until and unless there is reliable and acceptable evidence to come to a conclusion that it was the accused who committed rape, he cannot be convicted even if the factum of rape on the prosecutrix is established beyond reasonable doubt." 21. It is an admitted fact that age of the prosecutrix was 10 years at the time of alleged occurrence. She was a child witness. While appearing in the Court, she had categorically stated that the appellant/accused was identified in the morning assembly. It is an admitted fact that age of the prosecutrix was 10 years at the time of alleged occurrence. She was a child witness. While appearing in the Court, she had categorically stated that the appellant/accused was identified in the morning assembly. Thereafter, on the next day, her mother had told her as to what statement she was to make before the police and the Magistrate. She had further stated that even on the day when she appeared in the witness box, she was briefed and told in detail, outside the trial court as to what statement she was to make in the Court. This clearly shows that she was a tutored witness and her statement is required to be analysed in a very careful manner. 22. Their Lordships of Supreme Court in Chhagan Dame v. The State of Gujarat, AIR 1994 Supreme Court 454, had opined that "in the case of a child witness the Court has to carefully consider whether the child was under the influence of any tutoring. In case it is found that she was under the influence of tutoring and was asked to make a particular statement, it was highly unsafe to place reliance on statement of a child witness". Same is the situation in this case, 23. The prosecutrix herself had admitted that she was tutored to make particular statement by her mother outside the Court, as such, she is not a reliable witness. Further suspicious circumstance in this case is that neither father nor the mother had appeared as witness in the present case. Record reveals that appellant/accused was young man of 17 years, 9th class student, he had already remained in jail for about four years and nine months. 24. By taking overall view of circumstances of this case, Court feels that in view of discussion made above, judgment under challenge is liable to be set aside and appellant/accused is entitled for acquittal. Accordingly, appeal is allowed, judgment and order under challenge are set aside and appellant is acquitted of the charge framed against him. Appeal allowed.