JUDGMENT : Sanjay Karol, J. Assailing the judgment dated 28.2.2015/2.3.2015, passed by the learned Addl. Sessions Judge, Guumarwin, District Bilaspur, H.P. (Camp at Bilaspur), in Sessions Trial No. 19/7 of 2014, titled as State of Himachal Pradesh vs. Dalip Kumar, whereby the appellant-accused has been convicted for having committed an offence punishable under the provisions of Section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of seven years and pay fine of Rs.20,000/- and in default thereof to further undergo simple imprisonment for a period of six months, he has filed the present appeal under the provisions of Section 374(2) of the Code of Criminal Procedure, 1973. 2. The correctness of the findings and the legality of the impugned judgment is subject matter of challenge in the present appeal so filed by the convict through Sh. Virbahadur Verma, learned legal aid counsel. 3. In short, it is the case of prosecution that Krishna Devi (PW-1) had engaged the services of the accused for painting her house. On 12.3.2014, finding the prosecutrix to be alone at home, accused subjected her to sexual assault. Krishna Devi learnt about the incident late in the evening and the following day i.e. 13.3.2014 she reported the incident to the police when F.I.R. No. 21/2014, dated 13.3.2014 (Ext. PW-13/A) came to be registered against the accused under the provisions of Section 376 IPC at Police Station Bharari, Distt. Bilaspur, H.P. Prosecutrix was got medically examined through Dr. Manjula Sharma (PW-14) who issued MLC (Ext. PW-13/C). Prima facie, finding the accused to have committed the alleged crime, challan came to be presented against him in the Court for trial. 4. Accused was charged for having committed an offence punishable under the provisions of Section 376 of the Indian Penal Code, to which he did not plead guilty and claimed trial. 5. In order to establish its case, prosecution examined as many as 15 witnesses and the statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he took plea of innocence and false implication. No evidence in defence was led by the accused. 6. Appreciating the material placed on record by the prosecution, trial Court convicted the accused for the charged offence and sentenced as aforesaid. Hence the present appeal. 7. No evidence in defence was led by the accused. 6. Appreciating the material placed on record by the prosecution, trial Court convicted the accused for the charged offence and sentenced as aforesaid. Hence the present appeal. 7. The conviction is primarily based upon the testimonies of prosecutrix (PW-12), her mother-in-law Krishna Devi (PW-1) and Dr. Manjula Sharma (PW-14) who has proved on record the M.L.C. (Ext.PW-13/C) of the prosecutrix. Statement of the prosecutrix recorded under Section 164 Cr.P.C. before the Judicial Magistrate, 1st Class (Ext. PW-13/D) is also on record. Also what weighed with the trial Court in convicting the appellant-accused, was the retarded mental growth of the prosecutrix. 8. Having heard learned counsel for the parties as also perused the record, I am of the considered view that the reasoning adopted by the trial Court is perverse and is not based on correct and complete appreciation of testimonies of the witnesses. Judgment in question is not based on correct and complete appreciation of evidence and the material placed on record, hence causing serious prejudice to the accused, resulting into miscarriage of justice. 9. In Shivaji Sahabrao Bobade and another Versus State of Maharashtra, (1973) 2 SCC 793 , the apex Court, has held that: “…….Lord Russel delivering the judgment of the Board pointed out that there was "no indication in the Code of any limitation or restriction on the High Court in the exercise of its powers as an appellate Tribunal", that no distinction was drawn "between an appeal from an order of acquittal and an appeal from a conviction", and that "no limitation should be placed upon that power unless it be found expressly stated in the Code". …. …. (Emphasis supplied) 10. The apex Court in Lal Mandi v. State of W.B., (1995) 3 SCC 603 , has held that in an appeal against conviction, the appellate Court is duty bound to appreciate the evidence on record and if two views are possible on the appraisal of evidence, benefit of reasonable doubt has to be given to the accused. 11. Also it is settled position of law that graver the punishment the more stringent the proof and the obligation upon the prosecution to prove the same and establish the charged offences. 12. It is a matter of record that on 13.3.2014, prosecutrix was got medically examined from Dr. 11. Also it is settled position of law that graver the punishment the more stringent the proof and the obligation upon the prosecution to prove the same and establish the charged offences. 12. It is a matter of record that on 13.3.2014, prosecutrix was got medically examined from Dr. Manjula Sharma (PW-14) who in court has categorically deposed that no signs of struggle or violence were found on the body of the prosecutrix. Also there were no abrasions, contusions or fresh injury. From local examination, it was not possible for her to ascertain as to whether any act of sexual intercourse was committed or not. Only on the basis of report of the chemical examiner (Ext. PW-4/A), wherein human semen was detected from the vaginal swabs/slides of the prosecutrix, the Doctor opined that “the possibility of sexual intercourse” could not be ruled out. At this juncture, it be only observed that from the report of the Forensic Science Laboratory (Ext.PW-4/A) it is not discernible as to whether the semen found on the clothes of the prosecutrix; her vaginal slides, was definitely that of the accused. Hence, with certainty, medical evidence or for that matter evidence of the expert, does not establish the offence of sexual assault. 13. Dr. Manjula Sharma (PW-14) does state that she had recommended the prosecutrix for ascertaining her mental age. Dr. Shatrughan Singh (PW-10) who examined the prosecutrix issued psychological report (Ext. PW-10/B & 10/C), certifying the mental age to be 12 years and 6 months. However, the doctor is certain that the test conducted by him is based on Social Science which is not definite in nature. Crucially Dr. Manjula Sharma (PW-14) found the victim to be “capable of understanding and responding to the queries”. 14. With regard to the mental age of the prosecutrix, one finds that there is no whisper about such fact in the testimonies of her mother-in-law Krishna Devi (PW-1) and brother-in-law Pawan Kumar (PW-15). For them prosecutrix was a normal person, with proper working faculties, save and except that Krishna Devi wants the Court to believe that prosecutrix was suffering from epilepsy. But then there is no proof with regard thereto. Be that as it may, one finds that the Court had found the prosecutrix to be a competent witness. For them prosecutrix was a normal person, with proper working faculties, save and except that Krishna Devi wants the Court to believe that prosecutrix was suffering from epilepsy. But then there is no proof with regard thereto. Be that as it may, one finds that the Court had found the prosecutrix to be a competent witness. It was observed by the Court that “witness appears to be having a clear understanding and adequate intellectual capacity to give evidence” and as such was examined. Hence it cannot be said that with certainty that prosecutrix was of low mental aptitude or growth. 15. In recording the testimony of the prosecutrix trial Court had made certain observations. As such, her statement as recorded by the Court is reproduced as under:- “(Since PW-10 Dr. Shatrughan Singh Clinical Psychologist, C.R.C., Sunder Nagar, District Mandi, H.P. after conducting the I.Q. test of this witness has opined her mental age as per his report Ext. PW-10/C to be 12 years and 6 months, a preliminary investigation under Section 118 read with Section 4 proviso of the Oaths Act is required to be held). Q. Where do you live and with whom? Ans. I live at Village Bhapral with my mother-in-law. Q. What do you do? Ans. I cut grass and collect fuel wood. Q. Who cooks food? Ans. My mother-in-law. Q. Which season is it these days? Ans. Winter season. Q. Whether one should tell truth or lie? Ans. Truth. Q. Do you know the meaning of oath? Ans. No. (Certified that after holding a preliminary examination by putting the aforesaid questions, the witness appears to be having a clear understanding and adequate intellectual capacity to give evidence). Without Oath 2.1.2015 I have two brothers-in-law, who both are in service. They live with their families at their places of their posting. At home I and my mother-in-law reside. In the month of March, the accused had done a wrong act with me at home. On that day my mother-in-law was not at home. She had gone to Bharari. The wife of accused was with him. The accused was painting our house. When the accused did the wrong act with me his wife had gone out of the house. I had disclosed the incident to my mother-in-law on her return back home. I was taken to the hospital by my mother-in-law and thereafter to the Police Station. The wife of accused was with him. The accused was painting our house. When the accused did the wrong act with me his wife had gone out of the house. I had disclosed the incident to my mother-in-law on her return back home. I was taken to the hospital by my mother-in-law and thereafter to the Police Station. I was got medically examined by the police. I had put my thumb impressions on some documents. I was also got examined at Sunder Nagar and Shimla. The accused is present in the Court today. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx It is correct that for 2-3 months the accused had done the labour work at our house. It is correct that the work had been completed by the accused in the month of February. It is correct that thereafter the accused had never come to our house. It is correct that the entire story was cooked up by my mother-in-law. It is correct that earlier also on my behalf such like reports had been lodged by my mother-in-law. It is correct that all the reports were compromised after taking money.” 16. Bare perusal of the testimony of this witness reveals that she has not supported the prosecution at all, yet she was not cross examined by the Public Prosecutor. She is categorical that in the month of March when accused had come to her house, he was not alone. His wife accompanied him. She tried to explain that when accused committed the wrong act, his wife went out of the house. But this is not what is initially reported to the police. Crucially in cross examination she admits that work already stood completed in the month of February, where after accused never came to her house. Thus, she has contradicted her earlier version with regard to the presence of the accused on the spot. Most significantly, she admits it to be correct that “the entire story was cooked up by” her “mother-in-law” and that “earlier also on my behalf such like reports had been lodged by” her “mother-in- law” which came to be compromised after taking money. 17. One finds version of Krishna Devi (PW-1) to have been contradicted by the prosecutrix. Krishna Devi wants the Court to believe that accused had come alone unlike the prosecutrix who states that he had come with his wife. 18. 17. One finds version of Krishna Devi (PW-1) to have been contradicted by the prosecutrix. Krishna Devi wants the Court to believe that accused had come alone unlike the prosecutrix who states that he had come with his wife. 18. Be that as it may, one finds the mother-in-law to have deposed that prior to lodging of FIR, she had taken the prosecutrix to a Doctor for examination, whereafter prosecutrix was brought home and only the following day i.e. 13.3.2014 at about 2.30 p.m., matter came to be reported to the police. Now who is this Doctor? and what all was done? remains a mystery. It is not that either the prosecutrix or this witness were threatened, intimidated or overawed by the accused. If the mother-in- law could have taken the prosecutrix for medical examination, record whereof in any case stands concealed from the Court, she could have conveniently lodged the report with the police, neighbours or anyone in the village/neighbourhood which was not so done. Hence, delay of more than 20 hours in lodging the report, in the instant case, cannot be said to have been sufficiently explained. Not only that, and most significantly, even this witness admits that prior to the incident in question, complaints of sexual abuse came to be lodged against other persons from the village. 19. Significantly Manorma Devi (PW-2), a public representative, i.e. Ward Member of the concerned Gram Panchayat, was also associated by the police during investigation. Her testimony does not reveal that the matter came to be reported to her by anyone. Only on 14.3.2014 police associated her. On the question of mental ailment or retardness or the prosecutrix suffering from epilepsy, this witness has materially contradicted the testimony of Krishana Devi (PW-1) by stating that prosecutrix is not suffering from epilepsy and generally behaves well. 20. The witnesses so examined by the prosecution, in no manner, conclusively establish the charged offence. Prosecutrix and her mother-in-law cannot be said to be reliable witnesses or their testimonies to be inspiring in confidence. The alleged act never came to be resisted. Delay in the instant case is fatal. The incident appears to have been cooked up. There was no resistance to the alleged act. The Judicial Magistrate, 1st Class, was never examined in Court. 21. The alleged act never came to be resisted. Delay in the instant case is fatal. The incident appears to have been cooked up. There was no resistance to the alleged act. The Judicial Magistrate, 1st Class, was never examined in Court. 21. Hence, from the material placed on record, prosecution has failed to establish that the accused is guilty of having committed the offence, he stands charged for. The circumstances cannot be said to have been proven by unbroken chain of unimpeachable testimony of the prosecution witnesses. The guilt of the accused does not stand proved beyond reasonable doubt to the hilt. 22. Thus, findings returned by the trial Court, convicting the accused, cannot be said to be based on correct and complete appreciation of testimonies of prosecution witnesses. Such findings cannot be said to be on the basis of any clear, cogent, convincing, legal and material piece of evidence, leading to an irresistible conclusion of guilt of the accused. Incorrect and incomplete appreciation thereof, has resulted into grave miscarriage of justice, inasmuch as accused stands wrongly convicted for the charged offence. 23. Hence, for all the aforesaid reasons, appeal is allowed and the judgment of conviction and sentence dated 28.2.2015/2.3.2015, passed by the learned Addl. Sessions Judge, Guumarwin, District Bilaspur, H.P. (Camp at Bilaspur), in Sessions Trial No. 19/7 of 2014, titled as State of Himachal Pradesh vs. Dalip Kumar dated, is set aside and the accused is acquitted of the charged offence. He be released from jail, if not required in any other case. Amount of fine, if deposited by the accused, be refunded to him. Release warrants be prepared accordingly. Registrar (Judicial) to ensure prompt compliance. 24. Efforts put in by Mr. Virbahadur Verma, learned Legal Aid Counsel, in rendering valuable assistance to the Court are highly appreciable. Appeal stands disposed of, so also pending applications, if any.