JUDGMENT : G.B. Shah, J. 1. The present appeal is directed against the judgment and order dated 23/06/2016, passed by the learned 4th Additional Sessions Judge, Bhuj - Kachchh, in Sessions Case No. 59 of 2013, whereby, while acquitting the appellant - original accused for the offence punishable under Section 376 of the Indian Penal Code, 1860 (for brevity, 'the IPC'), he has been convicted for the offences punishable under Sections 354, 506(2) and 511 of the IPC and sentenced to undergo rigorous imprisonment for three years and fine of Rs. 5,000/- and in default of payment of fine, to undergo, further rigorous imprisonment for six months. Whereas, Criminal Misc. Application No. 16529 of 2016 has been filed by the applicant - appellant praying for suspension of sentence pending appeal. 2. On 15/07/2016, following orders were passed in the present appeal as well as the Criminal Misc. Application, respectively: "Order in Criminal Appeal: Admit Mr. K.L. Pandya, learned Additional Public Prosecutor waives service of notice of admission. Order in Criminal Misc. Application: The present application has been filed by the applicant under section 389 of the Code of Criminal Procedure, 1973, for suspension of sentence imposed by the trial court on the ground that during the trial the applicant was on bail as well as learned advocate has also furnished the relevant document in the form of paper book and has also supplied the same to learned Additional Public Prosecutor. He has also shown readiness and willingness to proceed with the final hearing of this Appeal and accordingly requested to call for the record and proceedings. 2. It is a fact that number of appeals are pending before this Court, however, simultaneously it is also a hard reality that in most of the old matters, the respective learned advocates appear to have no interest and/or they choose not to remain present and if after the conditional orders passed by the Court they remain present, they ask for adjourning the matters, either on the ground that since long the concerned appellant has not contacted in spite of repeated reminder or on the other ground. 3. Under the circumstances the Request made by learned advocate Mr. Patel is granted. 3. Under the circumstances the Request made by learned advocate Mr. Patel is granted. Registry is directed to call for the record and proceedings of this appeal from the concerned trial court and the concerned trial court is directed to forward the same so as to reach this Court on or before 21.7.2016 and list the matter along with Criminal Appeal for final hearing on 22nd July 2016." 2.1 Pursuant to above order, R&P is received. Mr. Patel, the learned advocate for the appellant, also produced copies of relevant documents in the form of paper-book, a copy of which, is supplied to the other side, and the same have been referred during the course of hearing. 3. Facts in nutshell of the prosecution case are that prior to 13/03/2000 at about 14:00 hours and after 5-10 days of Navratri, the appellant herein - original accused, allegedly took away the victim, the minor daughter of complainant Selviben Ganesh Rajput, saying her that police have arrested her brother, to an isolated place with an intention to outrage her modesty and thereafter, molested her by removing clothes put on by her and when the victim started crying, the accused fled away from there along with other absconding accused, threatening the victim not to disclose anybody about the same else he would kill her. Thus, the appellant - accused committed the offence alleged against him, for which, a complaint came to be lodged for the offences punishable under Sections 354, 376, 506(2) and 114 of the IPC. For the sake of convenience, the parties herein are referred as per their original status. 3.1 Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Sessions Court. The trial Court framed charge against the accused, which was read over to him. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. 3.2 In order to bring home the charge against the accused, the prosecution has examined following witnesses and also produced several documentary evidence, as under: ORAL EVIDENCE S/N. Name of Witness Exh. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. 3.2 In order to bring home the charge against the accused, the prosecution has examined following witnesses and also produced several documentary evidence, as under: ORAL EVIDENCE S/N. Name of Witness Exh. 1 PW-1 Subhash Dwarkaprasad Chhaparib 11 2 PW-2 Ravi Ratan Chanal 13 3 PW-3 Babulal Ravilal Gor 14 4 PW-4 Gani Ismail Sama 18 5 PW-5 Ashokbhai Shivji Parmar 19 6 PW-6 Anvar Adam Kevar 24 7 PW-7 Ibrahim Adam Kevar 26 8 PW-8 Dr. Ambrish Ratankumar Vashistha 28 9 PW-9 Selviben Ganesh Shrinivasan, complainant 35 10 PW-10 Victim 37 11 PW-11 Bhagvatiben Vitthaldas Limbachiya 38 12 PW-12 Rohitbhai Natvarlal Bhatt, IO 39 13 PW-13 Harshadkumar Bhanushankar Dave 40 14 PW-14 Ranchhodbhai Somabhai Ninama 41 DOCUMENTARY EVIDENCE S/N. Document Exh. 1 Panchnama of place of offence 12 2 Seizure panchnama of clothes of accused 15 3 Slips kept with muddamal article Nos. 1 & 2 16, 17 4 Seizure panchnama of clothes of victim 20 5 Slips kept with muddamal article Nos. 3 to 5 21 to 23 6 Panchnama of samples collected by the MO for medical examination of the victim and the accused 25 7 Letters written by the police to MO for medical examination  of the victim and the accused 29, 30 8 Certificate issued by the MO as to examination of the victim 31 9 Letters of MO 33, 34 10 Original complaint 36 11 School Leaving Certificate 42 12 Dispatch Note 43 13 Receipt of FSL 44 14 FSL Analysis Report and Serological Report 44, 46 3.3 At the end of the trial, after recording the Further Statement of the accused under Section 313 of Code of Criminal Procedure, 1973 (for brevity, 'the Code') and hearing arguments on behalf of prosecution and the defence, the learned trial Judge concluded as aforesaid by the impugned judgment and order, giving rise to prefer the present appeal. 4. Heard Mr. Vishal T. Patel, the learned advocate for the appellant - original accused and Ms. Reeta Chandarana, the learned Additional Public Prosecutor for the respondent - State. 4.1 Mr. 4. Heard Mr. Vishal T. Patel, the learned advocate for the appellant - original accused and Ms. Reeta Chandarana, the learned Additional Public Prosecutor for the respondent - State. 4.1 Mr. Patel, the learned advocate for the appellant - accused submitted that the trial Court has committed a grave error in convicting the accused for the offences punishable under Sections 354, 506(2) and 511 of the IPC. It was contended by him that the impugned judgment and order of the trial Court is against the provisions of law; the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself, it is established that the prosecution has failed to prove the whole ingredients of the offence alleged against the present appellant - accused. He took this Court through the oral as well as the entire documentary evidence on record and mainly contended that there appears vital contradictions so far as information regarding the incident whether was received by the mother-in-law of the complainant namely Jankiben or by the mother of the victim namely Selviben, and the said important aspect has not been appreciated by the learned trial Judge in its true spirit. He further submitted that the alleged incident had occurred somewhere in October 2012 and the complaint had been lodged by the mother of the victim on 12/03/2013 and thus, there is delay of almost 5-6 months in lodging the complaint for which no convincing reason and/or evidence has been forthcoming on record for the said inordinate delay. Mr. Patel, the learned advocate for the appellant, further submitted that as per the complaint at exh. 36, the victim first of all gave the information of the incident to her grandmother namely Jankiben whose statement had also been recorded on 13/03/2013 by the police and in the charge-sheet, she was shown as witness at serial No. 11 but the said witness, who alleged to have first hand information, has not been examined by the prosecution for which also, no explanation has been forthcoming on record. He then submitted that the victim, who has been examined by the prosecution vide exh. He then submitted that the victim, who has been examined by the prosecution vide exh. 37 has not supported the case of the prosecution and on the contrary, she has deposed that no such incident had ever been occurred and because of some vengeance with the family of the accused, who were, as such, the neighbour, the mother of the victim had filed the false complaint. The said evidence has not been properly considered by the learned trial Judge and the findings, which have been given by the learned trial Judge, prima facie, appear prejudicial to the case of the defence. He further submitted that the complaint filed by the mother of the victim is nothing but the outburst of vengeance and taking revenge against the family of the accused and hence, the present appeal should be allowed. In support of his case, he relied upon following decisions: "4.1.1 Bachaspatimayum Thambou Sharma and Ors. v. State of Manipur, reported in AIR 1967 Manipur 30 (V 54 C 7), more particularly, para 8; 4.1.2 Ramaiah alias Rama v. State of Karnataka, reported in (2014) 9 SCC 365 , more particularly, para 25; 4.1.3 Bhugdomal Gangaram and Others v. State of Gujarat, reported in (1984) 1 SCC 319 , more particularly, the Head Note; 4.1.4 Mukul Rani Varshnei (Smt) and Others v. Delhi Development Authority and Another, reported in (1995) 6 SCC 120 , more particularly, Head Note 'B';" 5. On the other hand, Ms. Chandarana, the learned Additional Public Prosecutor for the respondent - State, supported the impugned judgment and order and submitted that the same having been passed in accordance with law, does not call for any interference. It is submitted that the prosecution has successfully proved the case against the accused beyond reasonable doubt and the learned trial Judge, after taking into consideration all the aspects of the matter, has come to such a conclusion, which is just and proper and accordingly, it is requested that this Court should not interfere in appeal. She took the Court through the relevant oral as well as documentary evidence on record and submitted that considering the averments made in the complaint, which have been supported by the complainant and also by PW-13 Harshadkumar Bhanushankar Dave, exh. She took the Court through the relevant oral as well as documentary evidence on record and submitted that considering the averments made in the complaint, which have been supported by the complainant and also by PW-13 Harshadkumar Bhanushankar Dave, exh. 40, who had recorded the complaint and in view of the supporting medical evidence, the learned trial Judge has rightly convicted the accused, considering the gravity of the gradually escalating such offence. Eventually, she requested to dismiss the present appeal confirming the impugned judgment and order. 6. I have considered the above-referred rival submissions made by the learned advocates for the parties and also gone through the evidence on record and re-appreciated and re-evaluated the same on the touchstone of the latest decisions of the Hon'ble Apex Court. I have also gone through the impugned judgment and order and also the decisions relied upon by the learned advocate for the appellant - accused. Referring the documents, it appears that initially, the complaint was lodged for the offences punishable under Sections 354 and 506(2) of the IPC but later on, offence punishable under Section 376 of the IPC came to be added, however, considering the medical evidence and other oral as well as documentary evidence on record, there appears nothing to attract the ingredients of Section 376 of the IPC. Moreover, PW-12 Rohitbhai Natvarlal Bhatt, the Investigating Officer, exh. 39, has admitted in his cross-examination that before making efforts for adding the offence punishable under Sections 376 and 511 of the IPC, he had not obtained any medical evidence to that effect. Thus, no cogent and satisfactory explanation has been forthcoming on record so far as offence punishable under Section 376 of the IPC is concerned. No doubt, while passing the impugned judgment and order, the learned trial Judge has acquitted the accused from the said charge as the prosecution having failed to prove the same. It appears that, while considering this point, the learned trial Judge has relied upon a decision reported in AIR 1960 Uttar Pradesh 155 observing the facts of the said case and has come to the conclusion that the same is applicable to the facts of the present case and accordingly, the ingredients of Section 354 of the IPC are attracted in the case on hand. Mr. Mr. Patel, the learned advocate for the appellant submitted that though all the efforts have been made, he could not lay his hands on the aforesaid decision so also this Court, for want complete details. It has been observed in para 30 of the impugned judgment and order that, 'further, in the decision reported in AIR 1960 Uttar Pradesh 155, it has been observed by the High Court that, "the accused was charged with offence punishable under Section 376. As per the facts of the case, the accused dragged the victim and thereafter, forced her to be unclothed and thereafter, he molested her. In this incident, there was no evidence as to rape of the victim by the accused and from the evidence, the accused was convicted for the offence punishable under Section 354 of the IPC. The said decision is completely applicable to the facts of the case on hand....". Accordingly, the learned trial Judge came to the conclusion that the prosecution has proved the case against the accused for the offence punishable under Section 354 of the IPC. 6.1 In the complaint dated 12/03/2013, given by the complainant, so far as information given by the victim is concerned, it has been specifically stated by the complainant that the victim had told the incident at 11:00 p.m. on 10/03/2013 to Jankiben, the mother-in-law of the complainant, and in turn, Jankiben told the same to the complainant at 12:30 p.m. on 11/03/2013 and accordingly, she had lodged the complaint on 12/03/2013. The deposition of the complainant is recorded at exh. 35 and according to her, when her mother-in-law and the father-in-law as well as the victim were present in the house, her daughter had told the complainant regarding the incident and regarding said vital contradiction, in her cross-examination she has deposed that the said fact had been narrated in her complaint as per her deposition before the Court that the victim had told her regarding the incident but she had no idea whether the same had been recorded by the police or not. Thus, it appears that no proper explanation regarding the said contradiction has been forthcoming on record. 6.2 Referring to the deposition of victim recorded vide exh. Thus, it appears that no proper explanation regarding the said contradiction has been forthcoming on record. 6.2 Referring to the deposition of victim recorded vide exh. 37, the age shown by the victim at the time of recording of her evidence is 15 years and accordingly, after following the procedure before examining the minor and accordingly, after making necessary enquiry, the trial Court had come to the conclusion that though the victim is aged 15 years and is a minor, on enquiry, it is learnt that the victim was capable of understanding rights and wrongs and hence, oath was given to her and thereafter, her deposition was recorded. It appears that in her examination-in-chief, in para 1' she has narrated regarding her family, her birth date as well as regarding the city in which she was studying; in para 2, she has narrated the time of incident and how she had reached to the police headquarter while playing with her friends of her falia; in para 3, she has narrated that the accused, who was residing adjacent to her house, and one boy aged about 14-15 years had come and started talking with her. The said story of conversation, since the children playing with her conveyed her family, she returned to her home; in para 4, it is narrated that after four months of the above incident, since there was some dispute and exchange of words between her family and the family of the accused, the mother of the victim had filed a complaint before the police against the present accused and the boy accompanied with him on that day, due to which, the police had arrested and interrogated them. Nothing else had happened then; in para 5, she has deposed that it is not true that on being approached by the police after the complaint was filed, she had shown the police the place of incident; she did not know as to which clothes she had put on while they were playing; she even did not know when the police had approached and on being asked by the police, her father had given one pair of hers; she was shown the muddamal clothes and she identified them as belonging to her; nothing had happened thereafter. After recording the above deposition, on a request made by the prosecution, she was declared hostile and further, the prosecution was permitted to ask the questions which can be asked in the cross-examination. Thereafter, in the cross-examination she has denied her statement recorded by the police on 13/03/2013. In light of the said facts, the learned trial Judge has observed as under in para 22 of the impugned judgment and order: "In the case on hand, the victim has deposed on oath and at that time, she was minor, aged 15 years. The then Presiding Officer has recorded her evidence after giving oath as per law and declared the minor victim as hostile in view of complaint at exh. 36; but in my opinion, the aforesaid evidence is not believable and the minor victim could not give the answers consciously to the questions put to her and hence, in my opinion, the prosecution could not request to declare her as hostile and accordingly, the Court has to appreciate the evidence as per the statement made by her in her examination in chief." 6.3 Thus, as observed by the learned trial Judge, referred herein above, after giving oath to the victim who was 15 years of age at the relevant time, the then Presiding Officer had recorded her evidence and she was declared hostile in light of the complaint at exh. 36 but as per his belief, the said deposition of the victim is not believable because whatever the evidence was recorded of the victim, she had not replied consciously and hence, the prosecution had requested the Court to declare her hostile but as per his belief she cannot be declared as hostile and whatever the victim had replied in examination in chief, the Court should appreciate the evidence accordingly. 6.4 Thereafter, the Court has discussed the evidence of PW-11 Bhagvatiben Vitthaldas Limbachiya, exh. 38, the PSO of Bhuj Police Station who had received the complaint at exh. 36 and recorded the first information for the offence punishable under Sections 354, 506(2) and 114 of the IPC vide I-C.R. No. 51/2013 and also noted the same in the Station Diary and handed over the investigation to Rohitbhai N. Bhatt. 38, the PSO of Bhuj Police Station who had received the complaint at exh. 36 and recorded the first information for the offence punishable under Sections 354, 506(2) and 114 of the IPC vide I-C.R. No. 51/2013 and also noted the same in the Station Diary and handed over the investigation to Rohitbhai N. Bhatt. Further, the learned trial Judge has discussed that the said evidence of PSO is to be considered, more particularly, when in support of the same, the mother of the victim namely Selviben, exh. 35 has supported the case of the prosecution and concluded that the prosecution has successfully proved the case against the accused. Thereafter, the learned trial Judge has discussed the evidence of PW-12 Rohitbhai Natvarlal Bhatt, exh. 39, the ASI who had recorded the statement of the victim and in light of the said evidence, the trial Court has come to the conclusion that the prosecution has successfully proved the case of the prosecution. 6.5 Thereafter, in para 27 of the impugned judgment and order, the learned trial Judge has observed as under: "27. Thereafter, considering the evidence of Harshadkumar Bhanushankar Dave, exh. 40 and Ranchhodbhai Somabhai Ninama, exh. 41 on oath, they have produced the School Leaving Certificate of the victim at exh. 42 and from the same, there is a reason to believe that the victim was minor when the incident had occurred and accordingly, their evidence on oath is believable." 6.5.1 In above para 27, the Court has considered the evidence of PW-13 Harshadkumar Bhanushankar Dave, exh. 40 and of PW-14 Ranchhodbhai Somabhai Ninama, exh. 41 and further has specifically observed that through the said witnesses, the School Leaving Certificate of the victim at exh. 42 has been forthcoming on record and thus, the Court has concluded that it can be believed that the victim was minor at the time of incident. In light of the said observations, the documents at exh. 42 if is perused, which is undoubtedly the School Leaving Certificate but referring the same, it is apparent that the said certificate is related to one 'Makwana Vishal Mukeshbhai' and the name of his mother stated to be is 'Reetaben' and the birth date is 01/06/2000' and thus, the same is not related to the victim. 42 if is perused, which is undoubtedly the School Leaving Certificate but referring the same, it is apparent that the said certificate is related to one 'Makwana Vishal Mukeshbhai' and the name of his mother stated to be is 'Reetaben' and the birth date is 01/06/2000' and thus, the same is not related to the victim. Moreover, in para 22 of the impugned judgment and order, referred herein above, the trial Court has observed that the prosecution has wrongly requested the Court to declare the victim hostile and the Court should not have declared her hostile and in para 27, it goes to observe that the victim was minor at the relevant time. So far as above observation of the trial Court is concerned, I am of the view that once the learned APP had requested the Court to declare the witness as hostile and when the Presiding Officer, who was in-charge of the case and in whose presence the evidence is being recorded, had thought it fit to grant permission and declared the witness as hostile, and also permitted the prosecution to ask the questions which can be asked in the cross-examination, in the circumstances, at the time of delivering the judgment, another Presiding Officer or the same Presiding Officer finds fault with the said procedure for declaring a witness hostile though in the case on hand, the witness was a minor, then also, in my view, before passing the final order, the Court should have stopped there and raised the issue in the form of query calling upon the learned advocates for the parties and after hearing them, the Court can proceed further, passing necessary orders to that effect but the way in which, the learned trial Judge has observed and presumed in para 22 of the impugned judgment and order, is nothing but prejudicial to the parties, more particularly, to the appellant - original accused, which cannot be permitted in the eye of law. It is pertinent to note that all the panch witnesses have not supported the case of the prosecution and have turned hostile. It is pertinent to note that all the panch witnesses have not supported the case of the prosecution and have turned hostile. Moreover, simply putting reliance on the deposition of the mother of the victim namely Selviben, in my view, it is too risky to convict the accused putting reliance on the statement of the victim recorded before the concerned police official who has, as such, not supported her own statement as discussed herein above. Thus, if at all for the sake of argument, it is presumed that after the recording of deposition of the mother of the victim, the parties might have entered into the compromise as suggested by the learned advocate for the defence, then also, the manner in which, the evidence forthcoming on record have been twisted by the learned trial Judge, is, as such, not permitted in the eye of law. 6.6 Moreover, the incident alleged to have been committed by the accused after about a week of Navratri in the year 2012 and the complaint was lodged by the complainant on 12/03/2013 and hence, the delay, prima facie, appears of approximately more than five months. Referring the complaint at exh. 36 as well as the deposition of the complainant, no satisfactory explanation appears to have been forthcoming on record and considering the overall facts and circumstances, emerge from the record, the same prove to be against the prosecution. 7. In the above backdrop, this Court is of the opinion that the prosecution has failed to prove the case against the appellant beyond reasonable doubt in view of material contradictions and improvements in the case of the prosecution, as aforesaid, and taking into consideration the facts and circumstances of the case vis-a-vis the evidence on record, I am of the opinion that the learned trial Judge has materially erred in coming to such a conclusion and convicted the accused. Further, the learned Additional Public Prosecutor is not in a position to show any evidence to take a contrary view in the matter. The approach of the Court below is vitiated by aforesaid manifest illegality and that the decision is perverse, ignoring the material evidence on record. Further, the learned Additional Public Prosecutor is not in a position to show any evidence to take a contrary view in the matter. The approach of the Court below is vitiated by aforesaid manifest illegality and that the decision is perverse, ignoring the material evidence on record. In that view of the matter, I am of the considered opinion that the Court below has materially erred coming to the aforesaid conclusion and accordingly, the present appeal requires to be allowed by setting aside the impugned judgment and order of the trial Court. 8. In view of the aforesaid discussion, present appeal succeeds and the impugned judgment and order dated 23/06/2016, passed by the learned 4th Additional Sessions Judge, Bhuj - Kachchh, in Sessions Case No. 59 of 2013, is hereby set aside and the appellant herein - original accused is acquitted of the charge for which he has been convicted and sentenced. The implementation of the impugned judgment and order was suspended for 30 days by order dated 23/06/2016, passed by the learned trial Judge and accordingly the appellant - accused is out on bail. Therefore, he is not required to surrender to custody except requires so in other case and his bail bond shall stand cancelled. In view of main appeal is disposed of, Criminal Misc. Application No. 16529 of 2016 does not survive and the same is also disposed of accordingly. Registry to return the R&P to the trial Court forthwith. The Registry is further directed to send a copy of the operative part of this judgment to the concerned trial Court by fax, forthwith.