JUDGMENT : Sanjay Kumar Gupta, J. 1. State is aggrieved of the acquittal earned by Rakesh Kumar S/o Bua Ditta R/o Sunail, Tehsil Akhnoor and Ajay Kumar S/o Bansi Kumar R/o Daskal, Tehsil Akhnoor (for brevity ‘accused’) vide impugned judgment dated 30.09.2013 of learned 3rd Additional Sessions Judge, Jammu, in case FIR No.47/2007 registered in Police Station Akhnoor for the offence under Section 376 RPC, therefore, Cr. Acq. Appeal No.193/2014. 2. The prosecution case, in brief, is that on 02.04.2007, Ashok Kumar, PW-2 brother of the prosecutrix, lodged a written report in the police station, Akhnoor with the allegations that on 29.03.2007, prosecutrix went out of the house at 8.00 P.M in the evening to attend the call of nature in the fields. At about 9.00 P.M. prosecutrix came back weeping to the house and narrated that present accused persons along with juvenile accused namely Sethi caught hold of her and forcibly committed sexual intercourse with her one by one and thereafter they fled away from the spot. Since a Panchayat meeting in the Baradri regarding the incident in question took place on the next day due to which delay had occurred to report the matter to the police. On the said report, FIR u/s 376 RPC was registered and investigation commenced. Investigating officer (I.O.) got the medical examination of the prosecutrix conducted from medical officer at Akhnoor Hospital, site plan of the place of occurrence was prepared. ‘Salwar’ of the prosecutrix which she was wearing at the time of incident was seized and sealed in a packet and sent to FSL for its examination after getting it re-sealed from Executive Magistrate and report was obtained. The statement of prosecutrix was recorded u/s 164 Cr.P.C. before JMIC, Aknoor and other witnesses were examined by the I.O. under Section 161 Cr.P.C. The accused were arrested on 13.04.2007 and they were also medically examined from the medical officer, Akhnoor Hospital. It came to fore in the investigation that on the fateful day accused persons caught hold of prosecutrix when she had gone to the fields to ease herself and committed rape with her by taking turns. It came to fore in the investigation that on the fateful day accused persons caught hold of prosecutrix when she had gone to the fields to ease herself and committed rape with her by taking turns. The final report under Section 173 Cr.P.C. was filed in the Court of learned JMIC, Akhnoor after completion of investigation on 26.09.2007 against the aforesaid two accused which after its committal to the Court of learned Sessions Judge, Jammu was transferred to the Court of learned 2nd Addl. Sessions Judge. However, a separate challan was filed against accused Sethi in the competent Court as he was found to be juvenile on the date of incident. 3. Vide order dated 12.12.2007, accused were charged for the commission of offence under Section 376 read with 34 of RPC to which they pleaded not guilty and claimed to be tried. Prosecution in support of its case has examined six witnesses. On 24.1.2013, the challan was transferred to the court of 3rd additional (special court constituted for rape cases). Prosecution though cited 11 witnesses, but examined 9 witnesses. A brief resume of the statement of prosecution witnesses is as under; - 4. PW-1 is the prosecutrix. She has deposed that on 29.03.2007 at 8.00 P.M. in the evening, she went out of her house to the nearby fields to ease herself, in the meanwhile accused who were hiding nearby came on spot, A-1 forcibly caught hold of her due to which she raised alarm but A-1 slapped her. Thereafter, A-2 caught hold of her, broke the string of her ‘Salwar’ and committed forcible sexual intercourse with her which was followed by Juvenile accused and A-1 due to which she started weeping and went back to her house and narrated the whole incident to her brother who got people from neighborhood assembled and they went to the houses of A-1 (alias Nanku) and juvenile accused, however, they could not be found and after waiting for three days, report was lodged to the police on 02.04.2007 by her brother. The contents of FIR, EXT-P2 are correct which bears her signature. She was medically examined and her ‘Sal war’ was seized besides her statement was recorded by JMIC, Akhnoor on 27.04.2007. 5. The contents of FIR, EXT-P2 are correct which bears her signature. She was medically examined and her ‘Sal war’ was seized besides her statement was recorded by JMIC, Akhnoor on 27.04.2007. 5. In cross-examination, she stated that before the occurrence, only juvenile accused who is residing adjacent to her house was known to her, the other two accused were not known to her. The place of occurrence is at a distance of about 100/150 yards from her house and in their village there are about 500/600 houses of different people but no residential house exists near the place of occurrence. She suffered an injury on her eye when A-1 slapped her and when the said accused was committing rape with her, A-2 caught hold of her arms and when juvenile accused committed rape with her, A-1 fled away from the spot. After accused left her, she reached back to her house at 11.00 p.m. and narrated the incident to her elder brother Ashok Kumar, PW-2 and one Baldev went to the house of A-1 at his village. This is wrong to say that juvenile accused introduced her with A-1 and A-2. She had received injuries on her knees, eyes and back at the time of occurrence. This is also wrong that a committee was convened in the village in order to settle the matter, however in case accused would have visited their house on next day, the matter could have been resolved. After waiting for 2 days, report was lodged to the police about the incident. On 02.04.2007 in the evening she went to the police station, Akhnoor along with her brother. The written report was given in the police station by her brother but its contents were not read over to her though she had put her signature over the same. Police visited their house on the same day at 8.00 P.M. and her statement and that of her brother were recorded and her ‘Salwar’ was also seized by the police which she was wearing at the time of incident. The place where occurrence took place is a forest area. This is wrong that she came out of the house on the asking of juvenile accused. 6. PW-2 Ashok Kumar is the brother of prosecutrix. The place where occurrence took place is a forest area. This is wrong that she came out of the house on the asking of juvenile accused. 6. PW-2 Ashok Kumar is the brother of prosecutrix. He has deposed that about 5/6 years back when he came back to his house in the evening, her mother told him that prosecutrix had gone outside to ease herself and when she returned back weeping to the house, she complained about the accused. He has not given any application in the police station rather her mother had filed an application before the police. He was declared hostile by the prosecution by the prosecution and in cross-examination by APP, he has admitted his signature over the application dated 02.04.2007 which was marked as ‘AK’ in the file given to the police for registration of the case but the contents of the application were denied by him. He has also admitted his signature and that of his sister over the FIR in the file. The police had not recorded his statement. He has denied the suggestion that a compromise had taken place with the accused in the matter due to which he is giving statement in their favour. In cross-examination by the defence counsel stated that he cannot say from whom her mother got the application drafted. 7. PW-3 Santosh Devi is the sister-in-law of the prosecutrix. She has stated that accused are known to her but denied any knowledge about the occurrence. She was also declared hostile by the prosecution and in her cross-examination by APP, deposed that it is wrong to say that in the month of April 2007, prosecutrix came back to the house and leveled allegation against accused with regard to the rape. That she resides at some distance from the house of prosecutrix and for said reasons, she has no knowledge as to whether any report was lodged to the police by the prosecutrix. She has denied the suggestion that she is giving statement in favour of the accused in order to save them. 8. PW-4 Mool Raj, Scientific Officer, FSL, Jammu has stated that on 07.04.2007 he had received one packet sealed with five intact seals forwarded by SDPO Akhnoor in case FIR No.47/2007 u/s 376 RPC of police station, Akhnoor through Constable Darshan Singh. 8. PW-4 Mool Raj, Scientific Officer, FSL, Jammu has stated that on 07.04.2007 he had received one packet sealed with five intact seals forwarded by SDPO Akhnoor in case FIR No.47/2007 u/s 376 RPC of police station, Akhnoor through Constable Darshan Singh. The contents of packet marked ‘A’ were subjected to chemical and microscopically examination for detection of semen/human spermatozoa and the opinion was given in his report No.626/FSL dated 30.04.2007 which is in the file bearing his seal and signature and it is marked as EXT-P8. In cross-examination, it is stated that the packet received by him was sealed with five intact seals out of which only two seals tallied with the seal impression forwarded by the Magistrate, whereas rest of the seals were of police. He did not remember whether any blood stain was present on the exhibit or not because I.O. had only raised a query with regard to the detection of semen/spermatozoa. 9. PW-5 Dr. Majula Sharma, Gynecologist, who had medically examined the prosecutrix on 02.04.2007 at 4.20 P.M., has found following injuries on her person; 1) a contusion under the left eye 1 cm bluish in colour, linear abrasion above left knee 4 cm long and on left side of back about 4 cm long. On local examination, no injury was detected on external genitalia, no bleeding P/V was present, there was slight discharge of her vaginum, hymen was intact and admitted one finger with difficulty. The vaginal smears report does not show the motile or non-motile spermatozoa and in her opinion there was no evidence of recent sexual intercourse. She has admitted the contents of her report EXT-P7 which bears her signature. In cross-examination, stated that the injuries mentioned in her report could be self-inflicted as these were just abrasions. There was no sign of any violence on the body of the prosecutrix. She has further stated that since hymen of the prosecutrix was intact and admitted only one finger with difficulty, which clearly shows that no sexual intercourse had occurred with the prosecutrix. 10. PW-6 Mangat Ram Sub-Inspector, is the investigating officer of the case. There was no sign of any violence on the body of the prosecutrix. She has further stated that since hymen of the prosecutrix was intact and admitted only one finger with difficulty, which clearly shows that no sexual intercourse had occurred with the prosecutrix. 10. PW-6 Mangat Ram Sub-Inspector, is the investigating officer of the case. He has stated that during the course of investigation, prosecutrix was medically examined by a doctor from Akhnoor hospital, thereafter he went to the spot and prepared a site plan, EXTP-9 of the place of occurrence, a ‘salwar’ produced by the prosecutrix was also seized vide memo EXTP-9/1 which was sealed with a ring and the same was kept on the supurdnama of Baldev Raj vide supurdnama memo EXTP-9/2. The sealed packet after its re-sealing from Magistrate was sent to the FSL, Jammu for expert opinion and the report was obtained. Statement of the prosecutrix under section 164 Cr.P.C. was recorded before a Judicial Magistrate and other witnesses were examined by him under Section 161 Cr.P.C. The offence under section 376 RPC was proved from his investigation against the accused as they committed rape with the prosecutrix one by one when she had gone in the field to answer the call of nature. Further stated that prosecutrix came to police station along with her brother Ashok Kumar, PW-2, who had lodged the report. The delay in reporting the matter to the police had occurred because both the parties were involved in Bradari meeting for settlement of matter which ultimately failed and thereafter FIR was registered. 11. In cross-examination, he stated that the place of occurrence exists at a distance of about 300 yards from the house of the prosecutrix but there is no possibility of hearing noises from such a distance. The school certificate with regard to the age of the prosecutrix was placed on the record. Ashok Kumar, PW-2, brother of the prosecutrix had mentioned reasons in his statement recorded under section 161 Cr.P.C pertaining to the delay in lodging report to the police. The medical report of the prosecutrix with regard to rape was negative. He cannot say as to which accused were summoned in the Bradari meeting and further he had not recorded the statement of persons who were present in the said meeting. 12. The medical report of the prosecutrix with regard to rape was negative. He cannot say as to which accused were summoned in the Bradari meeting and further he had not recorded the statement of persons who were present in the said meeting. 12. After the closure of prosecution evidence, accused were examined in terms of section 342 Cr.P.C. in which incriminating material in the statements of prosecution witnesses were put to them but they had denied the truth of prosecution evidence and stated that a false case has been foisted against them. They are innocent and have been falsely implicated in the case without any reason. No witness was examined by the accused in their defence. 13. After appreciating the entire case, the trial Court has ultimately recorded a judgment of acquittal in favour of the accused observing that there are number of discrepancies in the prosecution evidence. Ashok Kumar-PW2, elder brother of prosecutrix, has denied that he had lodged the report to the police station about the incident rather his mother had lodged the same and he has also not supported the version of prosecutrix that she told him about the whole episode immediately after the occurrence. Santosh Devi, PW-3, who is sister-in-law of the prosecutrix, also denied of having any knowledge about the occurrence. Dr. Manjula Sharma, Gynecologist, who medically examined the prosecutrix, had found the injuries on the body of prosecutrix viz. a contusion under the left eye 1 cm bluish in colour, linear abrasion above left knee 4 cm long and on left side of back about 4 cm long. The said doctor opined that no injury was detected on external genitalia, no bleeding P/V was present and hymen was intact and admitted one finger with difficulty, which clearly shows that no sexual intercourse had occurred with the prosecutrix. 14. Heard Mr. S.S. Nanda, learned Sr. AAG representing the State and with his assistance, we rescanned the prosecution case once again. The main argument of Mr. S.S Nanda is that the trial court has erred in not relying on the statement of prosecutrix, which clearly involves the accused in commission of crime. There is no representation on behalf of respondents. 15. We have given our thoughtful consideration to whole aspects of matter. From the persual of chllan, it reveals that prosecution has cited 11 witnesses, but examined 6 witnesses. There is no representation on behalf of respondents. 15. We have given our thoughtful consideration to whole aspects of matter. From the persual of chllan, it reveals that prosecution has cited 11 witnesses, but examined 6 witnesses. Two independent witnesses and one Doctor PW R.C. Sharma who examined the accused persons regarding their fitness to do sexual act, have been given up by prosecution. 16. In case of rape, the evidence of Prosecutrix carries value, other evidence is only of corroborating in nature. Now law is well established that court can base his conviction in rape case, only on sole testimony of Prosecutrix, if her testimony inspire confidence of court. Rape has been defined under section 375 RPC. It says that if any person has sexual intercourse with a woman under six circumstances, then it can be termed as rape. These are a)against the WILL of Prosecutrix b) Without her consent c) with her consent when consent has been obtained by putting her or any other person in whom she is interested, in fear of death d) With her consent, when the man knows that he is not her husband and her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married e) With her consent when at the time of giving consent she was by reason of unsoundness of mind or intoxication was unable to understand the nature of consent and f) with or without her consent when she is under 16 years. 17. Further in case of rape, the statement of Prosecutrix is very important since in such cases normally direct evidence is not available. Court has to draw its conclusion from attending circumstances and probability of facts stated by victim. Conduct of Prosecutrix is very important in order appreciate her evidence on right perspective. There should not be animus against the accused by victim or her relative; there should not be artificiality and unnaturalness in version of victim. 18. In AIR 2012 (SC) 2281 in case titled “Narinder Kumar vs. State (NCET of Delhi)” the Court has held:- “para 23. Conduct of Prosecutrix is very important in order appreciate her evidence on right perspective. There should not be animus against the accused by victim or her relative; there should not be artificiality and unnaturalness in version of victim. 18. In AIR 2012 (SC) 2281 in case titled “Narinder Kumar vs. State (NCET of Delhi)” the Court has held:- “para 23. the court while trying an accused on charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of witnesses which are not of a substantial character. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in rape case the victim and other witness have falsely implicated the accused. 24. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However, great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on record, he cannot be convicted for an offence. There is an initial presumption of innocence of accused and the prosecution has brought home the guilt against he accused by reliable evidence. The accused is entitled to benefit of every reasonable doubt. Prosecution has to prove its case beyond reasonable doubt and cannot take support from weakness of case of defense. There must be proper legal evidence and material on record to record the conviction of accused. Conviction can be based on sole testimony of Prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept version of Prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and story projected by Prosecutrix is found to be improbable the prosecution case is liable to be rejected.” 19. However, in case the court has reason not to accept version of Prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and story projected by Prosecutrix is found to be improbable the prosecution case is liable to be rejected.” 19. Further court has to see probabilities of facts mentioned by victim especially in offences against woman on touchstone of legal principles in order to come to conclusion as to whether facts mentioned are proved or not proved or disproved in term of section 3 of evidence act. The statements of other witnesses are only for corroboration purpose. 20. The only question that arises for our consideration in this acquittal appeal is, whether the trial Court was justified in doubting the credibility of prosecution case as projected during trial. 21. The scope of power of appellate court in case of acquittal appeal has been highlighted by Apex Court in case AIR 2014 SC 2200 in case titled ‘Muralidhar alias Gidda & anr. v State of Karnatka’ [Criminal Appeal No. 551 with 791 and 1081 of 2011, D/- 9-4-2014], which read as under :- “10. Lord Russell in Sheo Swarup, highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said, "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." The opinion of the Lord Russell has been followed over the years. 11. 11. As early as in 1952, this Court in Surajpal Singh while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Criminal Procedure Code observed, "............the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons." 12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu, Madan Mohan Singh, Atley, Aher Raja Khima, Balbir Singh, M.G. Agarwal, Noor Khan, Khedu Mohton, Shivaji Sahabrao Bobade, Lekha Yadav, Khem Karan, Bishan Singh, Umedbhai Jadavbhai, K. Gopal Reddy, Tota Singh, Ram Kumar, Madan Lal, Sambasivan, Bhagwan Singh, Harijana Thirupala, C. Antony, K. Gopalakrishna, Sanjay Thakran and Chandrappa. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court. In ‘Ghurey Lal v. State of U.P.’ (2008) 10 SCC 450 , the Court has culled out the principles relating to the appeals from a judgment of acquittal which are in line with what we have observed above.” 22. In present case, the only incriminating evidence against the accused is statement of prosecutrix who is major; there is nothing to support or corroborate her statement. It has come in evidence during trial that Ashok Kumar PW-2 & Santosh Devi PW-3, who are elder brother and sister-in-law of the prosecutrix, have not supported the prosecution case. Even Dr. Manjula Sharma, Gynecologist, who had medically examined the prosecutrix, has opined that no injury was detected on external genitalia, no bleeding P/V was present, hymen was intact and admitted one finger with difficulty. In her opinion, there was no evidence of recent sexual intercourse. She further stated that the injuries mentioned in her report could be self-inflicted as these were just abrasions. There was no sign of any violence on the body of the prosecutrix. PW-4 Mool Raj, Scientific Officer FSL Jammu, stated that he did not remember whether any blood stain was present on the exhibit or not because I.O. had only raised a query with regard to the detection of semen/spermatozoa. There is also no evidence as to whether the semen/Human spertozoa found on salwar of prosecutrix, were of any of accused. PW-4 Mool Raj, Scientific Officer FSL Jammu, stated that he did not remember whether any blood stain was present on the exhibit or not because I.O. had only raised a query with regard to the detection of semen/spermatozoa. There is also no evidence as to whether the semen/Human spertozoa found on salwar of prosecutrix, were of any of accused. Further seizure of Salwar has not been proved as both the PWS Baldev Raj and Ramesh Chander have been given up by prosecution. 23. The testimony of the prosecutrix, when evaluated in the light of the attending circumstances, makes the prosecution case very doubtful for proving the charge against the accused. The statement of victim/prosecutrix does not get support from any other circumstances which have come during trial. It does not inspire confidence of court. 24. The courts while appreciating the evidence in criminal cases have to see the decree of proof in maxim than that of civil case. The evidence produced by prosecution should be legally admissible. If there come the slightest doubts regarding the involvement of accused Court should not go on convicting the accused. 25. In arriving at conclusion about guilt of accused charged with heinous crime, the court has to judge the evidence by yardsticks of probabilities. The law does not permit the court to punish the accused on basis of moral conviction or suspicion. The burden of proof never shift, it is always on prosecution. 26. Thus, following the well known cardinal principles of law in appreciating the facts in case of rape, we do not find any compelling or substantial reason for disturbing the well-reasoned judgment returned by the learned trial Court after appreciating the entire material evidence on record. 27. Viewed, thus, finding no merit in the appeal on hand filed by the State, the same is dismissed.