JUDGMENT : Vivek Singh Thakur, J. Present appeal has been filed against judgment dated 23.9.2010 passed by learned Additional Sessions Judge, Fast Track Court, Hamirpur in Sessions Trial No.17 of 2010, acquitting respondent in Case FIR No.62 of 2010 dated 21.3.2010 under Sections 376, 377 read with Section 511 of Indian Penal Code, registered at Police Station, Barsar, District Hamirpur. 2. Brief facts of the case are that PW-4 prosecutrix, three years old daughter of complainant PW- 1 Smt. Kamla Devi, had gone to play in village on 20.3.2010 at about 3.30 p.m. and on return at about 5.30. p.m., she was weeping. She told her mother PW-1 Kamla Devi that Neelu(respondent) is a bad person as he had laid down her on bed and had touched his urination organ with her place of urination and had also put it in her mouth. Thereupon, PW-1 Kamla Devi had asked her husband PW-3 Mohinder Kumar telephonically to come to house who was at Barsar in his Motor Workshop. Thereafter PW-1 Kamla Devi had gone towards village and on the way Saroj alias Nisha had met her to whom she had narrated the entire episode. However, Saroj alias Nisha who was aunt (Chachi) of respondent had advised her not to disclose this matter to any one as such disclosure will bring shame to family as well as to child. 3. PW-3 Mohinder Kumar, husband of PW-1 had reached home at 10 p.m. to whom PW-1 had narrated the entire story. Thereafter, they went to Police Station, Barsar, situated at 10 K.M. distance from their village and FIR Ex.PW-1/A was registered on the basis of complaint made by Smt. Kamla Devi PW-1 at 3.00 a.m. on 21.3.2010. On 21.3.2010, at about 5 a.m. police had reached in Village and thereafter prosecutrix was taken to C.H.C. Barsar from where she was referred to Regional Hospital, Hamirpur for medical examination. Prosecutrix was medically examined in RH Hamirpur at 9.15 a.m. on 21.3.2010 and MLC Ex.PW-5/A was issued. During investigation prosecutrix had identified the place of occurrence with her mother and bed sheet was taken into possession vide memo Ex.PW-2/A. Date of birth certificate of prosecutrix Ex.PW-8/B and respondent Ex.PW-6/B was obtained. Medical Examination of respondent was also conducted vide MLC Ex.PA. Clothes of prosecutrix and respondent, bed sheet, vaginal slides of prosecutrix, pubic hair and smegma swab of respondent were sent for Chemical Analysis. Medical Examination of respondent was also conducted vide MLC Ex.PA. Clothes of prosecutrix and respondent, bed sheet, vaginal slides of prosecutrix, pubic hair and smegma swab of respondent were sent for Chemical Analysis. The Chemical Analysis report is Ex.PW-11/A. 4. After completion of investigation, challan was put in the Court and on completion of trial, respondent had been acquitted. 5. We have heard learned counsel for the parties and have also perused documents placed on record. 6. In the instant case, statement of PW-4 prosecutrix, PW-1 Smt. Kamla Devi and PW-3 Mohinder Kumar are relevant. 7. PW-4 prosecutrix is a child witness and there is no concept of child witness in the Evidence Act. Every witness including a child witness is a competent witness, in case said witness is found to be competent to depose before the Court. However, in case of child witness, statement of said witness is to be considered with care and caution as there is possibility of tutoring child or misconceiving the incident by child due to tender age and capability to understanding. At the same time, it is also a fact that child witness may be an innocent witness, deposing truthfully particularly at the age of four years like present case. PW-4 prosecutrix has been found to be a competent witness to depose by the trial Court after due inquiry. Her testimony can be referred to and relied upon for bringing home the guilt of respondent. 8. Testimony of prosecutrix is almost at par with an immediate witness and can be acted upon without corroboration. PW-4 prosecutrix is victim as well as eye witness to the incident. Her statement recorded in Court is as under:- “Statement of Shakshi daughter of Mohinder, aged 4 years, R/o village Dandru, Tehsil Barsar, Distt Hamirpur, H.P. Test of Competence: Q..1 Do you read in school? Ans: In Paragone school. I do not know where it is located. Again stated that it is situated in our village. Q.2. In which Class do you read? Ans. In UKG. Q.3. How many subjects are there in your class? Ans. I do not know the subjects, but ABC is taught. Q.4. What is difference between good and bad? (No answer is given.). (From the age of the witness and the answers given she does not understand the sanctity of oath. Therefore, let her statement be recorded without oath. Without Oath 6/9/2010. How many subjects are there in your class? Ans. I do not know the subjects, but ABC is taught. Q.4. What is difference between good and bad? (No answer is given.). (From the age of the witness and the answers given she does not understand the sanctity of oath. Therefore, let her statement be recorded without oath. Without Oath 6/9/2010. Q. When you were playing in your village? (No answer is given). Q. Where you were playing? Ans. I was playing in village Dandru. Q. Who had called you? Ans. I was called by Neelu. (Witness pointed out finger towards the accused Neelu present in the Court). Q. Where you were called by the accused? (No answer is given). Q. What the accused did with you? Ans. The accused opened/put off my half pant as well as his pant and put his urinal place in my urinal place. Thereafter the accused has put his urinal place in my mouth. Q. What happened to you? (No answer given). Q. To whom you disclosed this fact? Ans. (No answer is given). I narrated this fact to my mother. Q. What did you tell to your mother? Ans. I told my mother that accused Neelu is bad. Q. Second time with whom you have visited the house of the accused? (No answer is given). xx xx xx (By Shri N.K.Thakur, counsel for the accused). The name of my brother is Saurya. Yesterday I had put on half pant and shirt. I wore the school uniform. In the night I wore this pant. My mother had put on the clothes on me today in the morning. I do not know the name of the mother of the accused Neelu. I never went to the house of mother of Neelu. My mother refuses not to visit the house of accused. My mother has not tutored statement to me. I myself had told to my mother. I told this fact to my mother today. The Ld. PP has told me in the office to make such like statement in the court today. My grand-mother was also saying to make such like statement in the Court. I do not know what is good. It is incorrect that accused did nothing with me.” 9. I told this fact to my mother today. The Ld. PP has told me in the office to make such like statement in the court today. My grand-mother was also saying to make such like statement in the Court. I do not know what is good. It is incorrect that accused did nothing with me.” 9. PW-1 Smt. Kamla Devi has corroborated incident reported in FIR and also stated in Court that accused had taken her daughter to his room and put off his pants and half pants of respondent and had committed offence as stated in the FIR. She has further stated that respondent had taken her daughter out of room and had asked her not to disclose this fact to any body and when daughter had come to her she was weeping. On inquiry by her, prosecutrix had narrated incident to her and thereafter she had asked her husband Mohinder Kumar on telephone to come immediately to home and then she met Saroj alias Nisha on the way to village to whom she had narrated entire story but said Saroj Kumari had advised her not to disclose this incident to any other person as it will bring shame to their family as well as child. She had narrated all these facts to her husband on his arrival at home at 10 p.m. Thereafter, she and her husband, prosecutrix and another person went to Police Station, Barsar and FIR Ex.PW-1/A was recorded at 3.00 a.m. After recording FIR, Police had reached their home on 21.03.2010 at 5 A.M. PW-1 has further stated that prosecutrix had shown place of occurrence to police. PW-1 has verified and identified the photographs, site plan and double bed sheet. As per her statement, she had reached at Police Station at 2 a.m. on 21.03.2010 and police had immediately recorded her statement. During cross-examination, it has been found that she had not disclosed the fact to police that accused had put off half pants of her daughter and also his pants. 10. PW-3 Mohinder Kumar, father of prosecutrix has corroborated the fact regarding narration of incident to him by his wife in the night of 20.3.2010 and reporting the matter to police and production of his daughter by police before C.H.C. Barsar and then Regional Hospital, Hamirpur for medical examination. 10. PW-3 Mohinder Kumar, father of prosecutrix has corroborated the fact regarding narration of incident to him by his wife in the night of 20.3.2010 and reporting the matter to police and production of his daughter by police before C.H.C. Barsar and then Regional Hospital, Hamirpur for medical examination. In cross-examination he has admitted that he had contracted two marriages but had stated that he was never married to Maya Devi and has further stated that he did not know who was Maya Devi. He has denied that he is not on talking terms with the accused. He has admitted that 8-9 years back there was litigation with the accused which was decided finally in the year 2005. He has denied that present case has been filed for pressurizing respondent for exchange of land. 11. PW-4 prosecutrix, who was undisputedly 4 years old at the time of examination in the Court, has deposed that accused opened/put off her half pants and his pants and put his urinal place in her urinal place. Thereafter, respondent put his urinal organ in her mouth. During cross-examination, she has stated that her mother had put on clothes on her body in the morning. She has stated that she had no knowledge of name of mother of respondent Neelu and she had never gone to the house of mother of Neelu. She has admitted that her mother has asked her not to visit the house of respondent. She has specifically stated that her mother had not tutored the statement to her and she herself had told this fact to her mother. She has further stated that learned Public Prosecutor has guided in his office to make such like statement in the Court. Her grandmother was also saying to make such like statement in the Court. Her father had told her yesterday that Neelu is bad person and had asked her to make such like statement in the Court. She has admitted that she does not know what is good. But she has categorically denied suggestion that respondent had not committed act as alleged. 12. Her father had told her yesterday that Neelu is bad person and had asked her to make such like statement in the Court. She has admitted that she does not know what is good. But she has categorically denied suggestion that respondent had not committed act as alleged. 12. As per prosecution, the incident had happened at about 5.20 p.m. on 20.3.2010 and PW-3 father of prosecutrix PW-1 had reached at home at 10 p.m. to whom mother of prosecutrix had narrated the entire episode and thereafter parents of prosecutrix had decided to lodge FIR and they proceeded to Police Station, Barsar during night which was at a distance of 10 K.M. from their village. As per FIR, they had reached at Police Station at 2.30 a.m. and the FIR was registered at 3.00 P.M. in Police Station, Barsar and the police had reached their house at 5 a.m. 13. The time of occurrence, time taken in reporting the matter and long distance covered in odd hours by parents and child to approach Police for registration of FIR reflects that FIR was lodged without any delay during intervening night of 20.3.2010 and 21.3.2010 and the complaint was not an out come of due deliberations or after thought only to implicate respondent on false ground. Ordinarily, a person will not choose a time to approach in Police Station by traveling 10 K.M. during midnight hours. In case of concoction of story, the parents of prosecutrix may have opted for suitable day time with suitable witness and also may not have chosen Saroj alias Nisha to be a person to whom incident was narrated who happened to be Aunt(Chachi) of respondent. For false implication, they may have chosen a person of their own choice and confidence who would have supported their case in the Court. 14. Scrutiny of statement of PW-4 indicates that she had stated that she was called by Neelu i.e. respondent who had put off her half pants as well as his pants and put his urinary organ in her urinary place and thereafter in her mouth. 14. Scrutiny of statement of PW-4 indicates that she had stated that she was called by Neelu i.e. respondent who had put off her half pants as well as his pants and put his urinary organ in her urinary place and thereafter in her mouth. In her cross-examination, she has admitted that learned Public Prosecutor had told her in the office to make such like statement in the Court, her grand mother was also saying to make such like statement in the Court and her father had also told yesterday that respondent was a bad person asking her to make such like statement in the Court. However, she has specifically stated that her mother has not tutored statement to her and has further stated rather she had narrated to her mother and it is incorrect that accused did nothing to her. 15. It is but natural that before making statement in the Court after six months of incident parents and learned Public Prosecutor may be worrying about capacity of child to recapitulate incident and prosecutrix has very innocently and fairly, whatever stated by learned Public Prosecutor, her grand mother and her father has admitted. But at the same time she has specifically stated that she was not tutored to give statement and it is incorrect that accused did nothing with her by further qualifying that mother had not told her but she had told to her mother. Her statement to be read as a whole and the portion of her statement cannot be considered to treat her reliable or unreliable. If one part of her statement is to be considered to be truthful, the other part of her statement unless contrary to evidence on record, is also to be considered to be true which is duly corroborated by rest of evidence. 16. As discussed above, PW-1 Kamla Devi and PW-3 Mohinder Kumar have acted in a very natural manner and have rushed to Police Station during night hours and have also mentioned the name of Aunt of respondent-accused in their statement to whom PW-1 Kamla Devi had narrated the incident. All these things reflect that statement of PW-4 prosecutrix can be relied upon to draw inference that respondent had committed an offence as alleged in FIR for which he was charge sheeted. 17. The prosecutrix was medically examined by PW-5 Dr. All these things reflect that statement of PW-4 prosecutrix can be relied upon to draw inference that respondent had committed an offence as alleged in FIR for which he was charge sheeted. 17. The prosecutrix was medically examined by PW-5 Dr. Shalini Kapoor and clothes of prosecutrix and respondent, bed sheet seized from room of respondent alongwith vaginal slide and smigma swabs and pubic hair of respondent were sent to FSL Junga for chemical analysis. No injuries on body or on genital parts of prosecutrix or respondent were found. According to Chemical Analyst report, no blood and semen was detected on the vaginal slides of prosecutrix and it was opined that there was no physical or chemical evidence to ascertain that alleged assault had been taken or not. It is not the case of prosecution that respondent had tried to penetrate or penetrated his genital part in private part of the prosecutrix. It is also not the case that any injury was caused to the prosecutrix by act of respondent. It is also not the case that during commission of act by respondent ejaculation had taken place. Therefore, opinion of PW-5 Dr. Shalini Kapoor and Chemical Analyst Report Ex.PW-11/H are of no help to either side. 18. It is settled law that where eye witness account is found credible and trustworthy, medical opinion pointing to alternative possibilities may not be accepted as conclusive. Statement of prosecutrix is credible and convincing. Therefore, reliance put on by learned Addl. Sessions Judge to acquit respondent for non-corroboration of statement of prosecutrix by medical evidence is misconceived. 19. Respondent has also placed on record copy of judgment Ex.DA to substantiate his defence that the present case has been made falsely due to inimical relations between parties and there was civil litigation between parties which has been decided in favour of family of the respondent. 20. Learned trial Court on the basis of civil litigations, has held that there was enmity between parties which may have resulted for accusation of respondent but learned Addl. Sessions Judge has failed to consider that copy of judgment Ex.DA placed on record by respondent is not sufficient to hold that present case has been registered on account of enmity between the parties due to property dispute. Sessions Judge has failed to consider that copy of judgment Ex.DA placed on record by respondent is not sufficient to hold that present case has been registered on account of enmity between the parties due to property dispute. Pendency of civil litigation or old determined civil litigation between the parties can never always be a ground for inferring that the said litigation has resulted into implication of respondent in a false criminal case unless substantiated with other evidence on record. Appeal against judgment Ex.DA was filed in the year 2005 and the said appeal had been filed by father of respondent and others against so many persons including PW-3 Mohinder Kumar. After decision of the said appeal on 4.11.2005, judgment was never assailed further by respective parties including PW-3 Mohinder Kumar. Further Ex.DA is not a complete copy of judgment. 21. Trial Court has also discussed social status of PW-3 Mohinder Kumar and his wife PW-1 Kamla Devi referring contracting two or more marriage by PW-3 Mohinder Kumar prior to marrying PW-1 Kamla Devi. The credibility of witness is not to be assessed on the basis of contracting more than one marriage, as it cannot be a ground to discard the statement of any person in case other than matrimonial dispute. Similarly statement of PW-1 Kamla Devi will not be doubtful for contracting marriage with a person (PW-3) who had been married in past. It is not a ground which can be used for impeaching veracity of statement of a witness in the present case. Further, such issue related to marriage of parents is not relevant at all for deciding the truthfulness of statement of four years old prosecutrix. Reliability of statements of witnesses is to be considered in the facts and circumstances on the basis of evidence on record. 22. PW-2 Kamla Devi and PW-7 Hari Chand who were witnesses to identification of spot of incident have not lend support to prosecution version. Learned trial Court, considering them as independent witnesses has made basis, for rejecting prosecution case. PW-2 Kamla Devi and PW-7 Hari Chand were witnesses to identification on spot by prosecutrix and they were not independent witnesses to the occurrence. Moot question to be considered by the Court was and is whether statement of prosecutrix inspire confidence or not. Learned trial Court, considering them as independent witnesses has made basis, for rejecting prosecution case. PW-2 Kamla Devi and PW-7 Hari Chand were witnesses to identification on spot by prosecutrix and they were not independent witnesses to the occurrence. Moot question to be considered by the Court was and is whether statement of prosecutrix inspire confidence or not. As discussed above, statements of PW-1 Smt. Kamla Devi, PW-3 Mohinder Kumar and PW-4 prosecutrix are inspiring confidence in the facts and circumstances came before Court on the basis of evidence led by prosecution. Therefore, resiling of PW-4 and PW-7 from the earlier statements cannot be considered to doubt veracity of prosecutrix PW-4. 23. Ms. Nisha was given up by learned Public Prosecutor being won over by the accused. It was obvious that Aunt (Chachi) of respondent was not expected to depose against respondent to corroborate case of complainant party. 24. It has also been considered by the learned trial Court that parties were not in visiting terms. PW-3 Mohinder Kumar had constructed house on the land of the family of respondent and he wants that family of respondent should exchange land with him. There is nothing on record to substantiate this plea of respondent as well as findings of trial Court. The judgment Ex.DA produced was decided in the year 2005 and there were large number of other persons, party to lis. There is not even single instance after passing of this judgment or prior to this judgment so as to fortify defence version. 25. In view of above discussion, there is an ample evidence on record to prove beyond reasonable doubt that respondent had committed an offence under Sections 376 and 377 read with Section 511 IPC, therefore, we are of the considered view that the judgment passed by learned trial Court is perverse, is a result of misreading of evidence on record and the same is set aside. Hence, judgment dated 23.9.2010 passed by learned Additional Sessions Judge, Fast Track Court, Hamirpur in Sessions Trial No.17 of 2010, under Sections 376, 377, 511 of Indian Penal Code is set aside and the accused/respondent is convicted under Sections 376 and 377 read with Section 511 IPC. 26. The accused be produced for hearing on quantum of sentence on 11.08.2016. List on 11.8.2016. 27. Registry is directed to prepare production warrant.