JUDGMENT : Chander Bhusan Barowalia, J. 1. The present appeal has been preferred by the appellant/State (hereinafter referred to as “the appellant”) laying challenge to judgment, dated 20.12.2007, passed by learned Sessions Judge, Bilaspur, H.P., in Sessions Trial No. 1 of 2007, whereby the accused/respondent (hereinafter referred to as “the accused”) was acquitted of the offences punishable under Sections 452 and 376 read with Section 511 of Indian Penal Code, 1860 (hereinafter referred to as “IPC”). 2. The factual matrix, as per the prosecution story, may tersely be summarized as under: On 29.09.2006, complainant, Shri Ramesh Kumar, lodged a complaint with the police alleging that he is employed in Public Works Department and was on leave. He has two children, son and daughter. As per the complainant, on 29.09.2006, he along with his family members had gone to fields to harvest the maize crop and when he along with his brother returned from the fields at about 04:30 p.m., they heard cries of his daughter, who was four years of age (hereinafter referred to as “the victim”). The complainant, after throwing the maize crop, rushed towards the room and he saw the accused running from the room. He also saw the victim inside the room without salwar and she was weeping. On asking, the victim disclosed that the person running took off her salwar and his pants, thereafter he applied sputum (thook) on her private part as well as on his penis. The victim further disclosed that the person who ran outside also started inserting his penis in her private organ due to which she felt pain. The complainant put the salwar of the victim and in the meantime his brother and villagers also came there and he disclosed them about the incidence. It was unearthed that the accused had been guest in the house of one Bhuri Singh of village Dagsech when he attempted to commit rape on the victim. Police machinery was set into motion and investigation ensued. During the course of investigation site plan of the spot of occurrence was prepared and the victim was medically examined. The room, where the occurrence took place, was photographed and the bed sheet was taken into possession. The accused, after his arrest, was medically examined and documents qua the age of the victim were also obtained. During the course of investigation site plan of the spot of occurrence was prepared and the victim was medically examined. The room, where the occurrence took place, was photographed and the bed sheet was taken into possession. The accused, after his arrest, was medically examined and documents qua the age of the victim were also obtained. Radiological age of the victim was opined to be below eight years and more than four years. The clothes of the victim, which she was wearing at the time of her medical examination, were sent to the forensic laboratory for analysis and report was obtained. Police found involvement of the accused in the commission of the offence. After completion of investigation, challan was presented in the Court. 3. The prosecution, in order to prove its case, examined as many as twenty witnesses. Statement of the accused was recorded under Section 313 Cr.P.C., wherein he admitted that the complainant works as Peon in Public Works Department, Mandi. He also admitted that on 30.09.2006 he was medically examined, however, the doctor did not take into possession his pants. He denied the rest of the prosecution case and claimed innocence. He, in his statement, has further stated that a false case has been foisted on him as the complainant is inimical with his relative, Bhuri Singh and his family members. However, the accused did not examine any defence witness. 4. The learned Trial Court, vide impugned judgment dated 20.12.2007, acquitted the accused of the offences punishable under Sections 454 and 376 read with Section 511 IPC, hence the present appeal. 5. The learned Additional Advocate General has argued that the learned Court below has failed to appreciate the evidence to its correct perspective. He has further argued that the judgment of acquittal, passed by the learned Trial Court, is the result of wrong appreciation of evidence. He has argued that accused was seen by the complainant running from the room of the victim and the victim has also identified the accused in the Court, so the presence of the accused on the spot stands fully proved. He has argued that there are no major discrepancies in the statements of the prosecution witnesses, thus in these circumstances, the accused is liable to be convicted for the offence punishable under Sections 452 and 376 read with Section 511 IPC. He has argued that there are no major discrepancies in the statements of the prosecution witnesses, thus in these circumstances, the accused is liable to be convicted for the offence punishable under Sections 452 and 376 read with Section 511 IPC. In contrast to the arguments of the learned Additional Advocate General, the learned counsel for the accused/respondent has argued that statements of the prosecution witnesses are full of contradictions and discrepancies. He has further argued that statement of the victim, who at the time of her examination was only five years old, has to be appreciated with great caution. It emanates from the prosecution evidence that at the time of occurrence other children and grand mother of the victim were also present in the house, so the happening of such type of incident in itself doubtful, especially in presence of other children and elderly person of the house. In order to draw support to his arguments, the learned counsel for the respondent has relied upon the following judicial pronouncements: 1. Caetano Piedade Fernandes and nother vs. Union territory of Goa, Daman & Diu Panaji, Goa, (1977) 1 Supreme Court Cases 707; 2. State of Madhya Pradesh vs. Ramesh and another, (2011) 4 SCC 786 ; & 3. Radhey Shyam vs. State of Rajasthan, (2014) 5 SCC 389 . 6. In order to appreciate the rival contentions of the parties, we have gone through the record carefully and in detail. 7. The case of the prosecution rests on three legs of evidence, viz., medical evidence, evidence of non-official witnesses and that of official witness. At the first place, medical evidence is being discussed. PW-1, Dr. Santosh Dhindra, Medical Officer, Zonal Hospital, Bilaspur, deposed that on 29.09.2006, at about 11:45 p.m., the victim was brought by her father, Shri Ramesh (PW-2) and Lady Constable, Peela Devi with the alleged history of sexual assault. This witness ruled out the possibility of sexual intercourse. She issued medico legal certificate, Ex. PA, qua the victim. However, she, after perusal of report of the Chemical Analyst, which is Ex. PB, opined that possibility of attempt to sexual intercourse on the victim cannot be ruled out. She found no abrasion laceration or inflammation over things or perineum. As per this witness, she referred the victim for X-ray examination for ascertaining her age. PA, qua the victim. However, she, after perusal of report of the Chemical Analyst, which is Ex. PB, opined that possibility of attempt to sexual intercourse on the victim cannot be ruled out. She found no abrasion laceration or inflammation over things or perineum. As per this witness, she referred the victim for X-ray examination for ascertaining her age. She, in her cross-examination, has deposed that she did not notice any violence signs on the person of the victim. The hymen was not ruptured and she did not find any blood stains on the body of the victim as also on her wearable. Second in the line of medical evidence is the statement of Dr. Mrs. D. Bhangal, Medical Officer, Zonal Hospital, Bilaspur. The victim was referred to her by Dr. Santosh Dhindra (PW-1) for ascertaining her skeletal age. After taking skiagrams, Ex. P-7 to P-11, she prepared and submitted her report, Ex. PW-12/A. As per the opinion of this witness, the age of the victim was between four to eight years, i.e., less than eight years and more than four years. 8. PW-13, Dr. Poojan Jaswal, Medical Officer, Zonal Hospital, Bilaspur, deposed that on 30.09.2006 he medically examined the accused and opined that there is nothing suggestive that the accused is not capable of performing sexual intercourse. He issued medico legal certificate, Ex. PW-13/A, qua the accused. Last in the series of medical evidence is the statement of PW-6, Shri Ram Tirath, Radiographer, Zonal Hospital, Bilaspur. He deposed that victim was referred to Dr. Santosh Dindra (PW-1) for determination of her age. She X-rayed the victim and handed over X-ray films Ex. P-7 to P-11 to Dr. D. Dhangal for giving opinion qua age. 9. The second leg of evidence relates to the statements of non-official witnesses. The most important witness in this segment is complainant, PW-2 Shri Ramesh Kumar, who is father of the victim. He, in his statement, has deposed that he works as Peon in Public Works Department, Mandi, and on the day of occurrence, i.e., 29.09.2006, he was on leave. As per this witness, on the day of occurrence he along with his wife, Shyma, brother, Ram Pal, and Rameshwari, was working in the maize field. Around 04:30 p.m. when he came to his house, he saw the accused running from a room of his house, where the victim was weeping. As per this witness, on the day of occurrence he along with his wife, Shyma, brother, Ram Pal, and Rameshwari, was working in the maize field. Around 04:30 p.m. when he came to his house, he saw the accused running from a room of his house, where the victim was weeping. He further deposed that he took the victim in his lap and found her pajama (lower) opened and lying on the bed. The victim weepingly disclosed to him that the person who ran away, after opening her pajama and his pants, was doing mischief with her. The victim further disclosed that the accused applied his sputum on her private part and on his penis and started forcible intercourse due to which she started weeping. PW-2 has further deposed that subsequently his brother, wife and bhabhi also came on the spot and villagers also gathered there. Thereafter, a report was lodged and the victim was medically examined. Police visited the spot on 30.09.2006. As per this witness, police photographed the spot and bed sheet was taken into possession, vide memo Ex. PE, which bears his signatures. Shirt, Ex. P-2, and pajama, Ex. P-3, were also taken into possession by the doctor in the hospital. This witness, in his cross-examination, has deposed that his brother has two children and he also has two children, however, on the day of occurrence the other children were in the school and only child of 1½ years was sleeping in the room. He further deposed that his mother, who is around 50 years of age, also resides with him. He has denied that the accused had come to the house of one Bhuri Singh (PW-15). They were not in talking terms with the accused. 10. PW-3, Shri Ram Pal, brother of the complainant, deposed that on 29.09.2006 he along with the complainant, his wife, Rameshwari Devi and bhabhi, Shyama Devi, was working in the maize field. As per this witness, the complainant went to the house for keeping the maize and he also went to the house. His brother told him that the accused ran away from the room around 04:30 p.m. and the victim was weeping, as the accused attempted to sexually assault the victim. Thereafter, a report was lodged and the victim was referred for medical examination. On the subsequent day police visited and clicked photographs of the spot. Bed sheet, Ex. His brother told him that the accused ran away from the room around 04:30 p.m. and the victim was weeping, as the accused attempted to sexually assault the victim. Thereafter, a report was lodged and the victim was referred for medical examination. On the subsequent day police visited and clicked photographs of the spot. Bed sheet, Ex. P- 6, was also taken into possession. This witness, in his cross-examination, has deposed that his mother also resides in the same house and she raised hue and cry. He admitted that they are not in talking terms with Bhuri Singh (PW-15). PW-4, Smt. Kanta Devi, who is aunt of Shri Ramesh Kumar (PW-2), deposed that on 29.09.2006, around 04:30 p.m., a boy was running from the house of the complainant. She identified the accused in the Court as the same boy who was found running on that day from the house of the complainant. This witness is a hearsay witness and has portrayed the occurrence in the same manner as that of PW-2. She has also deposed that she was informed about the occurrence by PW-2, Ramesh Kumar. She feigned ignorance as to who has disclosed to PW-2, Ramesh Kumar, qua the attempt of sexual assault by the accused on the victim. Ex. P-6, bed sheet was taken into possession by the police, vide memo Ex. PE, which bears her signatures. This witness, in her cross-examination, has deposed that she reached the spot within two minutes and at that time only Ramesh Kumar (PW- 2), his mother and the victim were there. 11. PW-5, Smt. Shyama Devi, who is mother of the victim, deposed that on the day of occurrence she along with her husband (PW-2), jaith, Dharam Pal and his wife, Rameshwari, was working in the maize field. She has supported the version of PW-2, Ramesh Kumar and narrated the occurrence in the same manner as that of PW-2. In fact, this witness is also a hearsay witness, as she herself deposed that when she reached the house, the occurrence was disclosed to her by PW-4, Smt. Kanta Devi. This witness, in her cross-examination, has deposed that on that day her mother-in-law was present in the house. She also deposed that they are not in talking terms with Shri Bhuri Singh (PW-15). PW-14, Shri Devia, deposed that on 07.10.2006, the police, vide memo Ex. This witness, in her cross-examination, has deposed that on that day her mother-in-law was present in the house. She also deposed that they are not in talking terms with Shri Bhuri Singh (PW-15). PW-14, Shri Devia, deposed that on 07.10.2006, the police, vide memo Ex. PW-14/A, which bears his signatures, procured date of birth certificate of the victim from the Panchayat Secretary. PW-15, Shri Bhuri Singh, deposed that on 28.09.2006 the accused had come to his house for harvesting. As per this witness, the accused stayed for a night and on 29.09.2006, around 10/11 a.m., he left his house. This witness, in his cross-examination, deposed that complainant party is not in talking terms with them and they have inimical relations. He has further deposed that the complainant party can go upto any extent due to enmity. PW-16, Shri Raj Kumar, deposed that on 30.09.2006 police had come to their village and seized a bed sheet, vide memo, Ex. PE, which bears his signatures. The bed sheet was handed over by Shri Ramesh Kumar (PW-2) to the police. This witness, in his cross-examination, has deposed that he has good relations with the complainant party. 12. PW-17, Shri Ram Lal, Assistant Secretary Panchayat, Gram Panchayat Namhol, deposed that he, on application, Ex. PJ, moved by the police, issued date of birth certificate of the victim, which is Ex. PK, as per which her date of birth is 25.03.2002. He has also issued copy of pariwar register, Ex. PL, which was taken into possession vide memo, Ex. PW-14/A, which bears his signatures. 13. The victim was examined as PW-20. The only eye witness to the occurrence, as portrayed by the complainant and other non-official witnesses, is the victim, but she, at the time of her examination, was only five years of age, so after testifying her competence, as a child witness, her testimony was recorded. As per the victim, her parents had gone to extract kukrian (maize crop) and she did not know the date, month and year when they had gone to fields. She was present in the room of her house. The testimony of the victim, in the case in hand is very material, so the same is extracted in verbatim as under: “Que. When you were in the room, who came there? Ans. The witness could not give any answer despite sufficient time was given to her. Que. She was present in the room of her house. The testimony of the victim, in the case in hand is very material, so the same is extracted in verbatim as under: “Que. When you were in the room, who came there? Ans. The witness could not give any answer despite sufficient time was given to her. Que. What was done with you? Ans. I feel shame. Que. Is that person present in the Court who had done shameful act? Ans. Yes. Que. Can you point out that person in the Court? Ans. Yes. The witness pointed towards the accused present in the Court. Que. What the accused present in the Court had done with you? Ans. He had applied saliva (Thook). Que. Where the saliva had been applied? Ans. The witness did not answer despite having been afforded sufficient time. Que. What happened thereafter? Ans. Accused went away. Que. Who came in the room later on? Ans. My parents. Que. What you had told to your parents? Ans. No answer given despite sufficient time. Que. Where you were taken? Ans. I do not know.” The victim, in her cross-examination, has deposed that her taya has two children and they were present in the house on that day. As per the victim, her younger brother and her grand-mother were also present. Her mother was the first to arrive and subsequently taya arrived. 14. The last leg of evidence in the case in hand is testimonies of official witnesses, though much weight cannot be attached to official witness, as witness to the occurrence, i.e, the victim and other non-official witnesses gave evidence which is shabby and slippery. 15. PW-7, HHC Raj Kumar, deposed that Constable Vipin Kumar gave him rukka mark ‘X’, and he has taken the same to Police Station, Barmana, which he had handed over to MHC Jai Devi. On the basis of rukka, mark ‘X’, FIR was registered and MHC handed over to him the case file and he gave the same to Incharge Ram Dass, Police Post, Namhol. PW-8, HC Vipin Kumar, deposed that on 29.09.2006, around 07:15 p.m., complainant, Shri Ramesh Kumar, came with the victim to Police Post, Namhol and a report was lodged. He recorded the statement of the complainant in daily diary register. PW-8, HC Vipin Kumar, deposed that on 29.09.2006, around 07:15 p.m., complainant, Shri Ramesh Kumar, came with the victim to Police Post, Namhol and a report was lodged. He recorded the statement of the complainant in daily diary register. PW-9, HC Jagdish Chand, deposed that on 05.10.2006 HHC Amar Singh deposited the case property, i.e., a sealed parcel said to have contained a bed sheet, a parcel said to have contained wearables of the victim, a parcel said to have contained pants of the accused and two envelopes. On 06.10.2006 the entire case property was sent to FSL, Junga, vide RC No. 115/06, through Constable Sanjay Kumar and the receipt, after depositing of the case property in FSL, Junga, was handed over to him. As per this witness, the case property remained intact under his custody. 16. PW-10, SI Mool Raj, deposed that on 29.09.2006 Constable Raj Kumar (PW-7) brought rukka, Ex. PF, in Police Station Barmana, for registration of a case. After receipt of the same, FIR, Ex. PG, was registered, which bears his signatures. His endorsement on rukka, is Ex. PH. After registration of the case, the investigation was entrusted to Constable Raj Kumar by Incharge, Police Post, Namhol. PW-11, Shri Bhupidner Singh, Deputy Superintendent of Police, B.B.M.B., Sundernagar, deposed that docket of the case property was signed by him and on completion of investigation ASI Ram Dass handed over to him the case file for preparation of challan. Thereafter, challan was prepared and presented in the Court. PW-18, Constable Sanjay Kumar, deposed that on 06.10.2006, MHC Jagdish Chand handed over to him three parcels, vide RC No. 115/06, sealed with seal impression ‘A’ and he deposited the same in FSL, Junga, on the same day and receipt was handed over to MHC Jagdish Chand on 07.10.2006. 17. PW-20, ASI Ram Dass, Investigating Officer, deposed that on 29.09.2006, complainant (PW-2) along with his brother, Ram Pal, and his daughter (victim) lodged a report, which was entered in daily diary No. 17, Ex. PF, whereupon FIR, Ex. PG, was registered in Police Station Barmana. As per this witness, the victim was medically examined and her medico legal certificate, Ex. PA, was obtained. He visited the spot on 30.09.2006 and the place of occurrence was identified by Shri Ramesh Kumar (PW-2) and Shri Ram Pal (PW-3). He prepared spot map, Ex. PN, and bed sheet on the bed was photographed. As per this witness, the victim was medically examined and her medico legal certificate, Ex. PA, was obtained. He visited the spot on 30.09.2006 and the place of occurrence was identified by Shri Ramesh Kumar (PW-2) and Shri Ram Pal (PW-3). He prepared spot map, Ex. PN, and bed sheet on the bed was photographed. The bed sheet was seized, vide memo Ex. PE, and sealed with three seals having impression ‘A’, in presence of witnesses Shri Raj Kumar (PW-16) and Smt. Kanta Devi (PW-4). He recorded the statements of the witnesses. The accused was arrested and medically examined. Medico legal certificate of the accused, is Ex.PW-13/A. He has further deposed that clothes of the victim and the pants of the accused were also taken into possession by the Medical Officer and were sealed separately in parcels and these parcels were deposited with MHC, Police Station Barmana. Date of birth certificate of the victim, Ex. PK, was procured from the concerned Panchayat by moving application, Ex. PJ. On 18.11.2006, forensic analysis report, Ex. PB, was received, thereafter, the case file was handed over to SHO, Barmana, for preparing challan. This witness, in his cross-examination, has deposed that at the time of occurrence the children of the brother of the complainant (PW-2) were present in the house along with their mother. He has further deposed that accused is close relative of Shri Bhuri Singh (PW-15). 18. After exhaustively discussing the evidence, which has come on record, and after its analysis on the parameter of veracity some major loopholes can easily be identified. PW-20 (victim) deposed that at the time of alleged occurrence two children of her taya, her younger brother and her grand mother were present in the house. The victim has categorically stated that her mother arrived at the first instance and thereafter her taya, Ram Pal, came. This fact is in contrast to the prosecution story, as in the prosecution story it has come that firstly father of the prosecutrix reached on the spot and later on, on hearing hue and cry from the house, her mother reached there. FIR, Ex. PG, reveals that accused tried to do sexual intercourse by putting his penis into the vagina of the victim and due to this reason the victim started weeping. FIR, Ex. PG, reveals that accused tried to do sexual intercourse by putting his penis into the vagina of the victim and due to this reason the victim started weeping. The versions of PW-2, Shri Ramesh Kumar (complainant), PW-4, Smt. Kanta Devi, and PW-5, Smt. Shyama Devi, are akin to the prosecution story, but the statements of these witnesses do not match with the statement of PW-20 (victim), as the prosecutrix only deposed that accused has put his sputum on her. She did not say anything that the accused tried to put his male organ into her private part. The statement of the victim further draws strength from statement of Dr. Santosh Dindra (PW-1), who has ruled out any possibility of sexual intercourse. PW-1 did not find any signs of violence on the person of the victim. Had there been any attempt to do forcible sexual intercourse with the victim, injuries were bound to have occurred. The statement of PW-1, ruling out possibility of any sexual intercourse, is further fortified by report of Chemical Analysis, Ex. PB, which clearly ruled out any attempt of committing rape on the victim. 19. The case of the prosecution is not that the accused ran away from the spot as the witnesses or the complainant have reached there, but it is the case of the prosecution that the accused had otherwise left the spot. Thus, it remains unexplained facet of the prosecution story that why the accused only after applying sputum, as stated by the victim, left the place. Had there been any hue and cry, the grand-mother of the victim, who was in the house, which is a small house, could have come to the room where the victim was, but strangely there is nothing on record why the grandmother, whose presence in the house now stands established, did not come to the spot of occurrence. Thus, the presence of other children and grand-mother in the house at the time of occurrence and for unexplained reason of grand-mother’s not coming to the spot of occurrence, which is inside the same small house, goes to the root of the prosecution case and also shakes the whole tree of the prosecution story. 20. Thus, the presence of other children and grand-mother in the house at the time of occurrence and for unexplained reason of grand-mother’s not coming to the spot of occurrence, which is inside the same small house, goes to the root of the prosecution case and also shakes the whole tree of the prosecution story. 20. In an attempt to commit rape, the accused in the entire sequence tries to extinguish his lust upon the victim despite the intensity of resistance, but from the statements of the victim (PW-20), Dr. Santosh Dhindra (PW-1) and from the Chemical Analysis Report, Ex. PB, it cannot, by any stretch of imagination, be said that the accused was compulsive to have sexual intercourse with the victim and furthermore it remains inexplicable that what prevented him to commit rape on the victim. 21. The evidence in the case in hand further establishes that the relationship between the complainant party and Shri Bhuri Singh (PW-15) was strained. PW-15, Shri Bhuri Singh, categorically deposed that on 28.09.2006 the accused stayed in his house and on 29.09.2006, around 10/11 a.m. he left his house. Admittedly, the occurrence took place on 29.09.2006, around 04:30 p.m. and no plausible explanation is coming forth that in the interregnum the accused remained where. The evidence further demonstrates that the complainant party and Shri Bhuri Singh (PW-15), in whose house the accused had come, had bitter and inimical relations, thus, there is strong presumption of foisting a false case against the accused by the complainant party just to feed their hunger of animosity. The evidence which has come on record clearly demonstrates that the accused came out running from the house of the complainant and at that time other children and grand mother of the victim were present in the same house. Had there been entry of the accused in the house of the complainant on the day of occurrence and upon hearing the cries of the victim firstly the grandmother and other children, who were present in the house, would have come to see the victim. Thus, there is strong possibility of victim’s being tutored. Apparently, testimony of the victim does not inspire confidence and her statement is not of such a quality which alone could be termed sufficient for holding the accused guilty. Likewise statements of other key prosecution witnesses also do not inspire confidence. Thus, there is strong possibility of victim’s being tutored. Apparently, testimony of the victim does not inspire confidence and her statement is not of such a quality which alone could be termed sufficient for holding the accused guilty. Likewise statements of other key prosecution witnesses also do not inspire confidence. Thus, the prosecution has failed to prove beyond reasonable doubt the guilt of the accused and in these circumstances, the benefit of doubt goes to the accused and he cannot be held guilty. 22. The learned counsel for the respondent has placed reliance upon the following judicial pronouncements: 1. Caetano Piedade Fernandes & another vs. Union Territory of Goa, Daman & Diu Panaji, Goa, (1977) 1 SCC 707 ; 2. State of Madhya Pradesh vs. Ramesh and another, (2011) 4 SCC 786 ; & 3. Radhey Shyam vs. State of Rajasthan, (2014) 5 SCC 389 . 23. The Hon’ble Supreme Court in Caetano Piedade Fernandes and another vs. Union Territory of Goa, Daman & Diu Panaji, Goa, (1977) 1 SCC 707 , held that testimony of a child witness aged six years should be approached with great caution. Apt para of the judgment (supra) is extracted hereunder for ready reference: “5. Turning first to the evidence of Xavier, it may be pointed out straightway that he was a child witness aged only 6 years at the time when he gave evidence. His evidence is, therefore, to be approached with great caution. He was, according to the prosecution, the only eye-witness to the crime. We have carefully gone through his evidence, but we are constrained to observe that even after making the outmost allowance in his favour in view of the fact that he is a child witness, we find it difficult to accept his testimony. There are several contradictions from which his evidence suffers, such as who had which weapon, but it is not merely on account of these contradictions of a minor character that we are inclined to reject his evidence. There are serious infirmities affecting his evidence and of them, the most important is that he is supposed to have given the name of appellant No. 2 as the assailant of the deceased even though he had never seen him before the date of the incident. There are serious infirmities affecting his evidence and of them, the most important is that he is supposed to have given the name of appellant No. 2 as the assailant of the deceased even though he had never seen him before the date of the incident. He stated in his evidence that when on seeing the appellants dragging the body of the deceased after attacking him, he ran towards the village, he met his father Antonio on the way and on being questioned by Antioni, he said that the deceased had been cut be Lundi and Jacki Chaddo, that is appellants Nos. 1 and 2. However, in cross-examination, he admitted that he had not seen appellant No. 2 earlier and it was only at the time when appellant No. 2 attacked the deceased that he saw appellant No. 2 for the first time. Apprehending that the answer given by him in cross cross-examination may be the result of some confusion or misunderstanding, the learned Sessions Judge gave another opportunity and asked him whether he was knowing appellant No. 2 from before, to which he answered by saying that he had not seen appellant No. 2 at any earlier point of time. Now, if this witness had never seen appellant No. 2 before, it is impossible to understand how he could give his name as the assailant of the deceased when he met Antonio on the way to the village. How could he say that Jacki Chaddo had participated in the attack on the deceased when he had never seen Jacki Chaddo before. This answer given by Xavier clearly impairs the value of his evidence and casts a serious doubt on his veracity. It shows that he had been prevailed upon by the prosecution to falsely implicate appellant No. 2 and if his evidence in regard to the presence of appellant No. 2 cannot be accepted, it must react adversely against his evidence in regard also to appellant No. 1. There is also one other contradiction of a serious nature in the evidence of Xavier. He stated in his evidence that each of the two appellants dealt one blow: appellant No. 2 cut the throat of the deceased first with the coita and then appellant No. 2 cut his neck with the knife. There is also one other contradiction of a serious nature in the evidence of Xavier. He stated in his evidence that each of the two appellants dealt one blow: appellant No. 2 cut the throat of the deceased first with the coita and then appellant No. 2 cut his neck with the knife. Now, if only one blow was delivered by each of the appellants, there would be two injuries on the deceased, but the medical evidence shows that the deceased had received as many as nine injuries, which would mean that more than two blows were given to him. Then again, according to Xavier, his father Antonio sent him back home with Santana Costs and alone proceeded to the place where the body of the deceased was lying. That was also the evidence of Antonio. But it is difficult to believe that Antonio would send Xavier home with Santana Costa and proceed alone to find out the dead body of the deceased when he did not know the place where the offence was committed nor was he informed by Xavier as to where the dead body of the deceased was lying. Would he not take xavier with him in order that Xavier may show him the place where the deceased had been killed, instead of going on a chase for hunting out the dead body of the deceased in the forest? Would he also not prefer to take Santana Costa with him rather than go alone to the spot where his father had been done to death? The only explanation given by Antonio for not taking Santana Costa with him was that Santana Costa was afraid of going with him, but that is hardly an explanation which can carry conviction. Santana Costa was his servant and it is difficult to believe that he would refuse to go with his master. However, turning back to the evidence of Xavier, we find that in the committal court Xavier narrated an entirely different story. There he stated that he accompanied his father Antonio back to the scene of offence and showed him the place where the deceased had been assaulted and then Antonio walked to the place where the dead body of the deceased was lying. There he stated that he accompanied his father Antonio back to the scene of offence and showed him the place where the deceased had been assaulted and then Antonio walked to the place where the dead body of the deceased was lying. When Xavier was confronted with this statement made by him in the committal court, he first refused to admit that he had made such a statement, but then he accepted it. This contradiction is again of a very serious nature and we do not think it would be safe at all to rely on the testimony of Xavier. The judgment (supra) is fully applicable to the present case and we are also of the opinion that testimony of a child witness of tender age is to be sieved with great caution. 24. The Hon’ble Supreme Court in State of Madhya Pradesh vs. Ramesh and another, (2011) 4 SCC 786 , has held as under: “7. In Rameshwar S/o Kalyan Singh v. The State of Rajasthan, 1952 AIR(SC) 54, this Court examined the provisions of Section 5 of Indian Oaths Act, 1873 and Section 118 of Evidence Act, 1872 and held that every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. There is always competency in fact unless the Court considers otherwise. The Court further held as under: "11. …it is desirable that Judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate." 8. In Mangoo & Anr. v. State of Madhya Pradesh, 1995 AIR(SC) 959, this Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. In Mangoo & Anr. v. State of Madhya Pradesh, 1995 AIR(SC) 959, this Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The Court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring. 9. In Panchhi & Ors. v. State of U.P., 1998 AIR(SC) 2726, this Court while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that "the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring." 10. In Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra, 2008 AIR(SC) 1460, this Court dealing with the child witness has observed as under: "10. ‘… 7. … The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness." 11. The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross-examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on a oath and the import of the questions that were being put to him. (Vide: Himmat Sukhadeo Wahurwagh & Ors. v. State of Maharashtra, 2009 AIR(SC) 2292). 12. In State of U.P. v. Krishna Master & Ors., 2010 AIR(SC) 3071, this Court held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature. 13. Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness. (Vide: Gagan Kanojia & Anr. v. State of Punjab, 2006 13 SCC 516). 14. In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition.” … … … … … … 23. The Trial Court after taking note of rulings of various judgments of this Court as what are the essential requirements to accept the testimony of a child witness held as under: "In the present case, statement of child witness gets affirmed by the circumstances of the incident, facts and from the activities of the other witnesses carried out by them on reaching at the place of occurrence. Thus, on the basis of above-said law precedents, statement of witness Rannu Bai not being unreliable in my opinion are absolutely true and correct......Statement of child witness Rannu Bai gets affirmed by the statements of Munna and witness Hannu and from the medical evidence. Therefore, facts of the above-stated law precedents are not applicable to the present case." In view of the above, it is evident that the statement of Rannu Bai (P.W.1) is affirmed by the statements of other witnesses, proved circumstances and medical evidence. Her deposition being precise, concise, specific and vivid without any improvement or embroidery is worth acceptance in toto.” Certainly, every witness is competent to narrate what has happened, however, indeed Courts have power to declare a witness incompetent due to tender age, extreme old age, disease etc. The Court can always reject the statement of a child witness of witness’s being instructed or tutored, as in the present case. In the case in hand, there is strong presumption, gathered from the evidence, of victim’s being tutored, so her statement cannot be made sole basis for convicting the accused. The judgment (supra), in essence, is fully applicable to the facts and circumstances of the case. 25. In Radhey Shyam vs. State of Rajasthan, (2014) 5 SCC 389 , the Hon’ble Supreme Court, vide paras 11 and 12, has held as under: “11. In Ratansinh Dalsukhbhai Nayak, this Court considered the evidentiary value of the testimony of a child witness and observed as under: "7. … The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness." 12. In Panchhi (Panchhi v. State of U.P., (1998) 7 SCC 177 ), after reiterating the same principles, this Court observed that the evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and, thus, a child witness is an easy pray to tutoring. This Court further observed that the courts have held that the evidence of a child witness must find adequate corroboration before it is relied upon. But, it is more a rule of practical wisdom than of law. It is not necessary to refer to other judgments cited by learned counsel because they reiterate the same principles. The conclusion which can be deduced from the relevant pronouncements of this Court is that the evidence of a child witness must be subjected to close scrutiny to rule out the possibility of tutoring. It can be relied upon if the court finds that the child witness has sufficient intelligence and understanding of the obligation of an oath. As a matter of caution, the court must find adequate corroboration to the child witness's evidence. If found, reliable and truthful and corroborated by other evidence on record, it can be accepted without hesitation. We will scrutinize PW-2 Banwari's evidence in light of the above principles.” The judgment (supra) amplifies the facet qua close scrutiny of a child witness to rule out the possibility of tutoring. It has also been held therein that Courts must find adequate corroboration to child witness’ evidence. We will scrutinize PW-2 Banwari's evidence in light of the above principles.” The judgment (supra) amplifies the facet qua close scrutiny of a child witness to rule out the possibility of tutoring. It has also been held therein that Courts must find adequate corroboration to child witness’ evidence. In the case in hand, there is strong presumption of victim’s being instructed or tutored and her version, as discussed hereinabove, is in contrast to the statements of other key prosecution witnesses, so the same cannot form sole basis for convicting the accused. The judgment (supra) is fully applicable to the facts of the present case. 26. Keeping in view the evidence, which has come in the case in hand, and the law, as enumerated above, and also taking into consideration the testimonies of the witnesses, this Court finds that it is not reasonably possible to conclude that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt. Even after re-appreciating the evidence and the record in totality we are of the considered view that the case of the prosecution is full of suspicions and certainly suspicions cannot supplant proof, thus, taking into consideration all what has been discussed hereinabove and also the fact that the statements of father (PW-2) and mother (PW-5) are not confidence inspiring, this Court finds that there is no reason to interfere with the well reasoned judgment of acquittal passed by the learned Trial Court. 27. In Chandrappa vs. State of Karnataka, (2007) 4 SCC 415 , the Hon’ble Supreme Court has culled out the following principles qua powers of the appellate courts while dealing with an appeal against an order of acquittal: “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, ‘substantial and compelling reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc. (3) Various expressions, such as, ‘substantial and compelling reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 28. Keeping in view what has been discussed hereinabove, in a nut shell it is more than safe to hold that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt. Thus, there is no occasion to interfere with the well reasoned judgment of the learned Trial Court, as such the appeal, which sans merits, deserves dismissal and is accordingly dismissed. Pending applications, if any, stands disposed of accordingly.