JUDGMENT : Z.K. Saiyed, J. 1. By way of present appeal, filed under Section 374 of the Code of Criminal Procedure, 1973, the appellant has challenged the judgment and order of conviction dated 30.7.2016 passed by the learned Fifth Additional Sessions Judge, Gandhidham-Kachchh, in Sessions Case No. 15 of 2008. The said case was registered against the appellant - original accused for the offences punishable under Sections 354, 376, 511, 341, 342 and 504 of the Indian Penal Code. By the impugned judgment and order the appellant is sentenced to undergo S.I. for 15 days and fine of Rs. 250/-, in default of payment of fine to further undergo S.I. for 02 days for the offence under Section 341 of the Indian Penal Code. The appellant is sentenced to undergo R.I. for 06 months and fine of Rs. 500/-, in default of payment of fine to further undergo R.I. for 04 days for the offence under Section 342 of the Indian Penal Code. The appellant is sentenced to undergo R.I. for 01 year and fine of Rs. 1000/-, in default of payment of fine to further undergo R.I. for 08 days for the offence under Section 354 of the Indian Penal Code. The appellant is sentenced to undergo R.I. for 07 years and fine of Rs. 5000/-, in default of payment of fine to further undergo R.I. for 02 months for the offence under Section 376 read with Section 511 of the Indian Penal Code. The appellant is also sentenced to undergo R.I. for 01 year and fine of Rs. 1000/-, in default of payment of fine to further undergo R.I. for 04 days for the offence under Section 506 of the Indian Penal Code. All the above sentences are ordered to run concurrently. 2. According to the prosecution case, the father of the victim declared such complaint on 11.07.2006 that he is residing at C.C.X. House No. 54, Navwali, Adipur - Kachchh with his wife, two brothers and children including one daughter aged about 8 years, who is the victim of this case and one son. His victim daughter is studying in Standard - 3 in Sindhology School at Adipur. Her school timing is from morning eight o'clock to two o'clock in the afternoon. There is a school bus engaged for her to commute to the school. His victim daughter is studying in Standard - 3 in Sindhology School at Adipur. Her school timing is from morning eight o'clock to two o'clock in the afternoon. There is a school bus engaged for her to commute to the school. On last 10.07.2006, he received a phone call of his wife Vanita from his house at six o'clock in the evening and he was informed to reach home immediately. Therefore, he immediately left from his tea stall and came back home. At that time his wife informed him that when their victim daughter came back home from the school in the afternoon she was depressed and frightened. Therefore, as she inquired about the reason, she did not state anything and when she was given food, she vomited and went to sleep on cot. Thereafter, as she was asked, she stated that if she says anything, she will be harassed again. Thereafter, her mother persuaded her and told her that her school will be changed. Thereafter, she cried and informed to the wife of the complainant that yesterday on 10.07.2006 at about half past ten o'clock in the morning, all the students of her class went to the ground for games. At that time, as the victim was alone in the class, Games Teacher Harshad Leuva closed the door from inside. This Harshad Leuva threatened her and took out all the clothes of her body. Thereafter, this Harshad Leuva himself removed the clothes which he was wearing. She was laid on the floor and Harshad Leuva slept on her and thereafter he physically molested her and he also clicked her naked photographs by camera in his mobile and she was threatened that if she informed anyone, she will be harassed in the same manner again. As his wife informed him regarding this fact, he asked his daughter again and she repeated the above mentioned fact. Thereafter, he called his family relatives and informed them about this incident. As it was necessary to inform the school principal regarding this incident and as it was required to know the full name and address of this Harshad Leuva, Games Teacher and as he pondered and thought about the dignity and pride of his daughter, he had not lodged complaint yesterday. As it was necessary to inform the school principal regarding this incident and as it was required to know the full name and address of this Harshad Leuva, Games Teacher and as he pondered and thought about the dignity and pride of his daughter, he had not lodged complaint yesterday. This morning he, his wife and other relatives went to the school at ten o'clock in the morning and his victim daughter showed a person standing on the school compound and stated that this is our Games Teacher Harshad Leuva and she got frightened when she stated this. Thereafter, as we went to him and asked the name, he stated his name as Harshad Laxmanbhai Leuva, resident of Ward No. 4/B, Plot No. 146, Adipur - Kachchh and he stated that he is a P.T. Teacher in Sindhology School. Thereafter, he (complainant) and his relatives met the Principal of Sindhology School in his office. The Principal called this Games Teacher Harshad Leuva and inquired about the incident and it was stated that the victim had informed the above mentioned facts. Thereafter, an application was submitted to the Principal against Games Teacher Harshad Leuva. Thereafter, all of them went to Adipur Police Station to register the complaint. Therefore, the complainant gave complaint against this Games Teacher Harshad Leuva to take legal action against the accused for confining his daughter into the classroom, taking out her clothes and also removing his clothes and for attempting to outrage her modesty and it was registered at Adipur Police Station vide Crime Register No. I-119 of 2006 u/s. 354, 376, 511, 341, 342 and 506 of the IPC. 3. Thereafter, charge came to be framed and explained to the accused person, to which he pleaded not guilty and claimed to be tried. 4. In order to bring home the charges against the accused persons, prosecution examined 16 witnesses and also produced 08 documentary evidences. 5. Thereafter, after filing closing pursis by the prosecution, further statements of accused person under Section 313 of the Code of Criminal Procedure, 1973 was recorded, wherein the accused person denied the case of the prosecution and submitted that a false case is filed against him. 6. On conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned judgment and order convicted the appellant - accused as stated above. 7. 6. On conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned judgment and order convicted the appellant - accused as stated above. 7. Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 30.7.2016 passed by the learned Fifth Additional Sessions Judge, Gandhidham-Kachchh, in Sessions Case No. 15 of 2008 the appellant has preferred the present appeal before this Court. 8. Heard Mr. I.H. Saiyed, learned counsel with Mr. Chirag B. Upadhyay, learned counsel for the appellant. He has contended that the judgment and order passed by the learned Judge is contrary to law and evidence on record. He has contended that the learned Judge has not properly appreciated oral as well as documentary evidence adduced by the parties in its proper perspective. He has contended that it is passed on the assumption, presumptions, conjunctures, surmises and suppositions which are not permissible in the criminal law. 9. He has contended that prosecution has examined Shri Mansukhbhai Babubhai Rajput as P.W. No. 1. The said prosecution witness is the panch of panchnama of place of offence. It is contended that the prosecution witness has categorically admitted in his cross-examination that he has signed the panchnama as per the instruction of the Investigating Officer on the prepared panchnama. 10. He has contended that prosecution has examined Shri Laljibhai Dharamshibhai as P.W. No. 2 who happens to be the panch of arrest panchnama and from the panchnama it transpires that nothing incriminating material is found from the mobile of the appellant. It is contended that during the course of trial both the panchas have turned hostile and have not supported the case of the prosecution. 11. He has contended that the first information of the present case has been examined as P.W. No. 4 in the present case and in his chief-examination he has stated that the police has asked him to get the details of the appellant. It is further contended that in his cross-examination he has admitted that neither he nor his wife have seen any incriminating photographs of his daughter in the mobile phone of the appellant. 12. He has contended that the victim was examined as P.W. No. 8 and in her cross-examination she has not uttered a single word about the alleged incident. It is further contended that in his cross-examination he has admitted that neither he nor his wife have seen any incriminating photographs of his daughter in the mobile phone of the appellant. 12. He has contended that the victim was examined as P.W. No. 8 and in her cross-examination she has not uttered a single word about the alleged incident. It is contended that during the course of the trial the prosecution has also examined the school teachers viz. Hinaben Rupani, Gitaben Shamla, Kusumben Hansh and Hemaxiben Hiranandani as P.W. No. 9, 10, 11 and 12 respectively. It is further contended that from the deposition of all the respective witnesses it is not transpiring that the appellant has committed such offence. It is submitted that it also transpires from the depositions that the appellant is carrying good reputation amongst the colleagues. It is contended that Smt. Hemaxiben Hiranandani, P.W. No. 12 has stated in her deposition that she did her graduation in the subject of Child Psychology and when she went to the class room she did not notice any change in the behaviour of the victim. 13. He has contended that the prosecution has examined the principal of the school as P.W. No. 13 viz. Mudhu Nathani. In her cross-examination she admits that she has seen the mobile of the appellant and in the mobile nothing incriminating was found, more particularly the objectionable photographs of the victim girl. 14. He has contended that the Investigating Officer of the present case was examined as P.W. No. 15 viz. Harishkumar Mohanlal Kansagara and in his cross-examination he has stated that the mobile of the appellant was not sent to FSL. He has further stated in his cross-examination that the medical examination of the victim girl was done and as per the opinion of the doctor, the Investigating Officer has deposed that the intercourse was not done with the girl. He further deposed that he has not asked the first information of the present case to get the details of the appellant and after giving proper details he will register the FIR. It is contended that in the cross-examination the Investigating Officer has deposed that during the course of investigation, it reveals that the appellant was in Class-4 when the game period was going on in the Class-3. It is contended that in the cross-examination the Investigating Officer has deposed that during the course of investigation, it reveals that the appellant was in Class-4 when the game period was going on in the Class-3. It becomes as clear as crystal from the version of the Investigating Officer that the first information is a sponsored person. 15. He has contended that the doctor Shri Chhotelal Jonval has been examined as P.W. No. 16 and he has admitted in his cross-examination that merely from the medical certificate, which is examined as Ex. 96 he cannot say that the alleged incident took place with the victim girl. 16. He has contended that the case of the appellant is squarely covered by the decision of the Apex Court rendered in the case of Aman Kumar & Anr. v. State of Haryana, reported in (2004) 4 SCC 379 . In the said case it is held as under by the Apex Court:- "13. There is no material to show that the accused were determined to have sexual intercourse in all events. In the aforesaid background, the offence cannot be said to be an attempt to commit rape to attract culpability under Section 376/511, I.P.C. But the case is certainly one of indecent assault upon a woman. Essential ingredients of the offence punishable under Section 354, I.P.C. are that the person assaulted must be a woman, and the accused must have used criminal force on her intending thereby to outrage her modesty. What constitutes an outrage to female modesty is nowhere defined. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her dress coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman, and knowledge that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word 'modesty' is not defined in IPC. As indicated above, the word 'modesty' is not defined in IPC. The Shorter Oxford Dictionary (Third Edn.) defines the word 'modesty' in relation to woman as follows: "Decorous in manner and conduct; not forward or lowe; Shame-fast; Scrupulously chast." 14. Modesty can be described as the quality of being modest; and in relation to woman, "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct." It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. As observed by Justice Patterson in Rex v. James Lloyd (1876) 7 C and P 817. In order to find the accused guilty of an assault with intent to commit a rape, court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part. The point of distinction between an offence of attempt to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he was just going to have sexual connection with her." 17. He has contended that there is no evidence of Section 376 read with Section 511 of the Indian Penal Code. It is contended that there is no medical evidence that the appellant had attempted to commit an offence under Section 376 of the Indian Penal Code. It is contended that appellant was allegedly in commanding position i.e. his age was thirty years and was a teacher, whereas the victim's age was eight years of age. It is on record that the appellant was having ample opportunity of committing offence under Section 376 but as per the evidence on record there was not even an attempt to commit such offence. Therefore, the trial Court could not have convicted the appellant for the offence punishable under Section 376 read with Section 511 of the Indian Penal Code. 18. He has contended that in absence of incriminating evidence on record the prosecution has failed to prove its case beyond reasonable doubt and the judgment of the trial Court be quashed and set aside and the appellant is required to be acquitted from the charges alleged against him. 19. As against this, Mr. 18. He has contended that in absence of incriminating evidence on record the prosecution has failed to prove its case beyond reasonable doubt and the judgment of the trial Court be quashed and set aside and the appellant is required to be acquitted from the charges alleged against him. 19. As against this, Mr. N.J. Shah, learned APP appearing for the respondent - State has supported the judgment passed by the learned trial Judge. He has contended that the learned Judge has not committed any error in holding the appellant guilty of the charges levelled against him. He has contended that looking to the evidence of complainant, father of the victim and deposition of witnesses and victim herself case against the accused is proved and, therefore, no interference is called for by this Court. He has contended that from the evidence of the panchas, contents of panchnama of place of offence and arrest panchnama the offence in question is proved by the prosecution beyond reasonable doubt. He has contended that the learned Judge has considered each and every aspect of the matter and has passed absolutely just and proper judgment. 20. He has contended that the victim is minor girl studying in the third standard. The accused being a teacher was under domain position. He has contended that testimony of victim can be acted upon without corroboration in material particulars. He has contended that mother and father of the victim girl have supported the case of the prosecution. He has contended that victim girl has at Ex. 68 disclosed that on the date of incident at about half past ten o'clock in the morning, all the students of her class went to the ground for games. At that time, as the victim was alone in the class, Games Teacher Harshad Leuva closed the door from inside. This Harshad Leuva threatened her and took out all the clothes of her body. Thereafter, this Harshad Leuva himself removed the clothes which he was wearing. She was laid on the floor and Harshad Leuva slept on her and thereafter he physically molested her and he also clicked her naked photographs by camera in his mobile and she was threatened that if she informed anyone, she will be harassed in the same manner again. 21. She was laid on the floor and Harshad Leuva slept on her and thereafter he physically molested her and he also clicked her naked photographs by camera in his mobile and she was threatened that if she informed anyone, she will be harassed in the same manner again. 21. He has contended that rape is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplices. Rape leaves a permanent scar on the life of the victim, and, therefore, rape victim is placed on a higher pedestal than an injured witness. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, rape tantamount to a serious blow to the supreme honour of a victim, and offends both, her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks. 22. I have gone through the impugned judgment and order passed by the learned trial Judge and oral as well as documentary evidence produced on the record. I have perused the oral evidence of prosecutrix, prosecution witness-complainant, father of the prosecutrix and also perused the charge framed against the accused. I have also considered the submissions advanced by the learned advocates for the respective parties. So far as offence under Section 376 read with Section 511 of the Indian Penal Code is concerned, the victim has not disclosed in her deposition regarding penetration by the appellant and even the appellant has not tried to penetrate. From the oral version of the victim as well as evidence of the medical expert, circumstantial evidence, report of the FSL and serological report main ingredients of Section 375 are prima facie not proved and established beyond reasonable doubt. The Investigating Officer of the present case P.W. No. 15 - Harishkumar Mohanlal Kansagara has, in his cross-examination stated that medical examination of the victim girl was done and as per the opinion of the doctor intercourse was not done with the girl. The Investigating Officer of the present case P.W. No. 15 - Harishkumar Mohanlal Kansagara has, in his cross-examination stated that medical examination of the victim girl was done and as per the opinion of the doctor intercourse was not done with the girl. Doctor Shri Chhotelal Jonval has been examined as P.W. No. 16, who has admitted in his cross-examination that merely from the medical certificate Ex. 96 he cannot say that the alleged incident took place with the victim girl. In view of the above, the sentence imposed on appellant to undergo R.I. for 07 years and fine of Rs. 5000/-, in default of payment of fine to further undergo R.I. for 02 months for the offence under Section 376 read with Section 511 of the Indian Penal Code is required to be quashed and set aside. 23. In the result, the Appeal is hereby partly allowed. The impugned Judgment and order dated 30.7.2016 passed by the learned Fifth Additional Sessions Judge, Gandhidham-Kachchh, in Sessions Case No. 15 of 2008 is quashed and set aside qua the sentence imposed on the appellant to undergo R.I. for 07 years and fine of Rs. 5000/-, in default of payment of fine to further undergo R.I. for 02 months for the offence under Section 376 read with Section 511 of the Indian Penal Code. The remaining sentences imposed by the trial Court are not disturbed. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith. Appeal Partly Allowed.