JUDGMENT : 1. The instant Criminal Acquittal Appeal has been preferred by the appellant against the judgment dated 18.01.2010 passed by the learned Additional Sessions Judge, Kathua by virtue of which the accused/respondent has been acquitted from the commission of offence under Section 376/511 Ranbir Penal code on the following grounds:- (a) That order/judgment impugned in appeal is contrary to law and facts of the case and has been passed in a mechanical manner without appreciating the circumstantial evidence and the other evidence available on record, as such, deserves to be set aside. (b) That the trial court has failed to appreciate the prosecution evidence. The conclusion drawn is against the weight of evidence. The occurrence is proved. The acquittal is bad in the eyes of law. (c) That there is sufficient material on record to convict the respondent but the learned trial Judge has not appreciated the law and facts of the case which has resulted into acquittal of the respondent/accused. (d) That the trial court has hyper technical approach. The direct and circumstantial evidence have sufficiently proved the guilt of the respondent/accused. The judgment on this count also is bad in the eyes of law and is liable to be set aside. 2. I have considered the rival contentions. 3. Briefly the prosecution case before the trial Court was that on 04.09.2004 a written report was filed by one Suraj Parkash that the daughter of his brother Miss Anju D/o Manohar Lal, age 7 years, studying in Government Primary School Khadar was taken inside the room of the school by the accused, who was teacher in the school, undressed the girl and tried to rape her. Meanwhile, a boy of the school, namely Shakti Kumar came and saw the whole episode. When the victim came to the house, she narrated the whole matter to her mother. Her uncle Suraj Parkash filed a written report before the Police Station Bani. On receiving this report, police swung into action, recorded the statements of the victim/witnesses u/s 161/164 CrPC and registered a case for offence u/s 376/511 Ranbir Penal code and arrested the accused. After fulfilling all the formalities, the challan was presented before the learned Munsiff Bani, who committed the same to the court of learned Principal Sessions Judge, Kathua and the same was later on transferred to the court of learned Additional Sessions Judge, Kathua. 4. After fulfilling all the formalities, the challan was presented before the learned Munsiff Bani, who committed the same to the court of learned Principal Sessions Judge, Kathua and the same was later on transferred to the court of learned Additional Sessions Judge, Kathua. 4. After investigation of the case, offences u/s 376/511 Ranbir Penal code were found proved against the accused and accordingly the charge was framed against the accused on 09.12.2005. Accused denied the charge and claimed trial of the case. The prosecution was accordingly directed to lead evidence in support of its case. Court below after appreciating the evidence on record came to conclusion that prosecution has not proved its case beyond reasonable doubts. 5. Before re- appreciating the evidence on record, the brief resume of the statements made by the prosecution witnesses is reproduced as under:- PW-1 Suraj Parkash; on examination in chief stated that they are four brothers; in the year 2004 Anju Devi was studying in the primary school in 1st Standard at Khadar; the accused present in the court was also posted as teacher in that school; on 02.09.2004 Anju Devi had gone to the school; at 3.30 pm all the students were learning counting, then the accused-Master Asgar Ali asked Miss Anju Devi to fetch a glass of water; the accused had loosen his trouser and had kept Miss Anju Devi on his lap and was rubbing her private part; PW-Shakti Kumar saw the whole episode; Suraj Parkash has not seen the whole episode himself but the same has been told to him by the mother of Miss Anju Devi. He was not present at his house on that day; he came at home on 03.09.2004; Hari Lal came to house after 20 days; he had gone out of station before the occurrence of incident for labour work. Koushlya Devi the mother of the prosecutrix told all the matter when he came to her house on 03.09.2004. On 04.09.2004, he took the prosecutrix with him and filed a written report at police station Bani. He has seen the report which bears his signatures and is correct. On filing this report, the police filed FIR against the accused which is on the file and is correct. He identifies his signatures on the FIR which is correct. Report is exhibited as EXPW-SP and FIR is exhibited as EXPW-SP-1. He has seen the report which bears his signatures and is correct. On filing this report, the police filed FIR against the accused which is on the file and is correct. He identifies his signatures on the FIR which is correct. Report is exhibited as EXPW-SP and FIR is exhibited as EXPW-SP-1. He produced the salwar and kameez of Miss Anju Devi to the police, the same has been seized by the police. He has seen the seized articles and are correct. On cross examination the witness stated that what he has heard about the incident, he has not seen the incident on his own. There are 30/40 houses in our village; the Panchayat was held at Assu; our village is Mohra Khadar; Chowkidar Lekh Raj resides at Khadar, whreas the Numberdar resides at Assu. He does not know the name of the Numberdar. There is distance of 5/6 km from Khadar to Assu. The names of his other three brothers are Moti Ram, Dhani Ram and Bishan Dass. On 02.09.2004 all his brothers were also not at home; he is the first male member who arrived at home; they do the work as labourer during the day and then return to home in the night; their wives were present in their houses; the house of chowkidar is adjacent to our house. Before my arrival at home Koshalya Devi had narrated this episode to her sister in law and member Panchayat and chowkidar; police and army personnel daily do the routine checking due to militancy; he and his wife had gone to Manda on 02.09.2004; they stayed for night at Manda and returned to their house on 03.09.2004 at 7/8 pm; he had not taken Koshalya Devi to police station; he had got application typed from some one at Bani and the same is marked as EXPW-SP; he does not know the name of the person who had written the application but that was Photostat shop. On 04.09.2004 some people assembled in the house of member Panchayat and after some suggestions he took Anju Devi with him and went to the police station; that meeting of the house of member panchayat lasted upto 2p.m; he had got the signature or thumb impression of Anju Devi on the application; the police recorded her statement on 05.09.2004; he had listened the statement u/s 161 CrPC it is not written in it that the whole matter was narrated to him by Koshlya Devi. Hari Lal lives separately from him; he himself went to the house of Koshalya Devi and then she told him about the incident; he had not asked anything but she told him about the matter on her own; she was told about the incident at 7/8 p.m so the meeting was called on the next day; he is a labourer; that before the occurrence of incident he got the work of repair of that school, but the accused objected in doing that work from him; the same work was done by the person Suraj Parkash who is a member Panchayat. No further question was put to the witness by the defence counsel. On questioning from the court, the witness stated that Anju Devi at that time was at the age of 7 years and studying in first class. On chief examination by the learned APP stated that PW-2 Anju Devi, on being minor the court asked her some question to determine whether she is fit to give statement as witness or not; Q. Which is this place and who has brought you here? Ans. This is Kathua and I am sitting in front of Hon’ble Judge. Q. Why you came here? Ans. Prosecution witness remained silent Q. Who is the person wearing black coat? Ans. Prosecution witness remained silent. Q. Which is date today? Ans. Prosecution witness remained silent. Q. Who has brought you and when you came here? Ans. The witness stared and hesitates to give answer. Q. What kind of statement you have to give? Ans. The witness is hesitating in answering. On this the trial court Judge observed that the witness is unable to understand the questions put to her due to tender age and she has not developed sufficient maturity to give answer. She is even unable to communicate due to incoherent speech. Q. What kind of statement you have to give? Ans. The witness is hesitating in answering. On this the trial court Judge observed that the witness is unable to understand the questions put to her due to tender age and she has not developed sufficient maturity to give answer. She is even unable to communicate due to incoherent speech. The witness cannot be cross-examined as she cannot explain things and is unable to understand the nature of questions and respond appropriately. The judge has opined that the witness is incompetent to testify at the trial, as such, he declared her incompetent to testify. PW-3 Shakti Kumar; On being minor the court asked him some question in order to determine whether he is fit to give statement as witness or not; Q. Who is the person you are standing before? Ans. I am standing before the Judge Sahib Kathua. Q. What does the Judge Sahib? Ans. Judge Sahib does the justice. Q. Why you came here, state the reason? Ans. The witness has come to give statement in the case of Anju Devi. Q. Which kind of statement you have to give? Ans. The witness has to give true statement. Q. In which class do you read? Ans. The witness study in 6th Class. Q. Who has compelled to give statement or someone has lured you? Ans. The witness has come with his brothers. On this the trial court declared that the witness is fit to give statement and declared him competent to testify. On chief examination by the learned APP, the witness stated that he is studying in Government Middle School Khadar in 6th class; there are at present five teachers; their names are Mohinder Kumar, Rattan Lal, Madan Lal, Mst. Santosh and Mst. Pushpa Devi. On chief examination by the learned APP, the witness stated that he is studying in Government Middle School Khadar in 6th class; there are at present five teachers; their names are Mohinder Kumar, Rattan Lal, Madan Lal, Mst. Santosh and Mst. Pushpa Devi. Mohinder Singh is the Head Master of the school; there are eight students in the class of witness; four are girls and four are boys; Anju Devi is very little; she studies in 2nd class; she studies in his school; he is studying in the school since the 1st class; two years ago when he was studying in the 4th class, the accused was science teacher in our school; he used to teach science subject to our class; in the knowledge of witness, the accused when he was posted as teacher in the school did not do any bad activity with Anju Devi nor he has seen him of doing any bad activity with Anju Devi. On this the learned PP declared that the witness has been taught by someone to give this kind of statement and he was declared hostile. On questioned by PP the witness deposed that he had given a statement in the court at Bani. On this the learned PP declared that the witness has been taught by someone to give this kind of statement and he was declared hostile. On questioned by PP the witness deposed that he had given a statement in the court at Bani. He had stated in the court on the directions of the police (Note on this statement u/s 164 CrPC was read out to the witness and the witness confessed that he had given the same statement in the court on the directions of the police.) The police personnel took him to the court and produced there; there was no police man in the court at the time of his statement; this statement was told to him by the police in the police station; on that day the father of the witness had gone to work; the complainant Suraj Parkash also went with him to the police station; Today nobody has asked him to give statement in the court; he has not heard anything that the accused Asgar Ali has done any bad activity with Anju Devi; police did not record any of his statement in the police station nor his statement was taken at home; no statement was recorded in the school; he does not know why the police went to the school; he had heard the statement u/s 161 CrPC, but he had not given any such kind of statement before the police; this is wrong to say that his father has taken money as corruption from the father of the accused and now under that pressure he is giving a false statement. On cross examination the witness stated that there were two three policemen with Suraj Parkash in the police station; after teaching him about the statement he was taken to the court where his statement was recorded; when he was giving statement in the court, PW-Suraj Parkash and policemen were sitting outside; he returned back and accompanied them; they had directed him to say the same as he has been told by them; the accused did not do any bad activity in front of him; due to the fear and pressure of the police he has given such statement in the court. On being questioned by the court, the witness stated that the statement recorded in the court Bani was a totally false statement. PW-4. On being questioned by the court, the witness stated that the statement recorded in the court Bani was a totally false statement. PW-4. Mst Koshlya Devi; On chief examination stated that Anju Devi is her daughter; she studies in Primary School Khadar in first class; she was of the age of 07 years at that time; on the day of occurrence she had gone to school; in the evening she came home from the school and told her that the accused present in the court who was teacher in the school undressed her salwar and took the child in his lap; he also tried to rape her; her husband had gone for cattle grazing; Suraj Parkash is her brother in law; she had told this episode to Suraj Parkash, who, in turn, went to police station to lodge a report against accused. On cross examination the witness stated that there are 40 houses in the village; her other brother in law was also not at home at that time; one Bishan Dass was at home; Anju Devi came to home from school weeping; her statement was not recorded by the police; Anju Devi told her the whole episode on her own and not on being asked by her; she told the whole story to Suraj Parkash which PW Shakti Kumar also heard; Suraj Parkash alone had gone to police station for lodging report; he did not took Anju Devi along with him. PW-5. Bishan Dass; on chief examination by the learned APP, the witness deposed that 2 ½ years ago the police seized some clothes; the seizure exhibit EXPW SP/2; the same bears his signatures. It is correct. Police had not given any ring on his superdnama. On cross examination the witness stated that on the second day of the incident police seized the clothes. The name of the village is Khadar. PW-6 Mohinder Singh; On chief examination the witness stated that in the year Sept. 2004 accused Asgar Ali and Mst. Santosh Kumari were posted in the Primary School at Khadar; Anju Devi was a student of first class in that school. On 02.09.2004 she came to school, but he left the school on that day at 3.15 p.m due to bad health and did not come back. On 03.09.2004 he did not go to school. Santosh Kumari were posted in the Primary School at Khadar; Anju Devi was a student of first class in that school. On 02.09.2004 she came to school, but he left the school on that day at 3.15 p.m due to bad health and did not come back. On 03.09.2004 he did not go to school. On 04.09.2004 he went to school and accused also came to school but there was no student in the school; Suraj Parkash told him that the accused present in the court has done a shameful act with Mst. Anju Devi. After 04.09.2004 the accused did not come to the school. On 08.09.2004 the police came in the school and enquired about the accused; he has issued certificates to accused Asgar Ali and Mst. Santosh Kumari being a senior teacher. He has also issued certificates to Mst. Anju Devi and PW Shakti Kumar. The certificates are in his handwriting and stamp of the school is affixed on it. The same is exhibited as EXPW-MS and EXPW-2. On cross examination the witness stated that he has been posted in the school w.e.f. 03.08.2001 till date; on 02.09.2004 he had tooth ache and due to that he left the school at 3.15 p.m and went to the bazaar to get medicines. On 02.09.2004 he had applied for 1 ½ days leave; he does not know whether the same has been sanctioned or not; this is wrong to say that there is no leave on 02.09.2004 and 03.09.2004 on the arrival register. On 08.09.2004 the police came to the school; the arrival register and other record was kept with him. ZEO Bani had also checked the arrival register. On 04.09.2004 he went to the house of PW-Suraj Parkash to know why their children are not coming to school. It is not written in the statement u/s 161 CrPC that he had gone to the house of PW Suraj Parkash to know about why their children are not coming and also that the police told him that the accused has done a bad activity with Anju Devi. It is not written in the statement u/s 161 CrPC that he had gone to the house of PW Suraj Parkash to know about why their children are not coming and also that the police told him that the accused has done a bad activity with Anju Devi. On 02.09.2004 he stayed for night at Bani in the room of PW Suraj Parkash; he has no knowledge about the presence of accused in the school after 04.09.2004; the school had been white washed and repaired before the happening of this incident; it is also incorrect that ward member Suraj Parkash was annoyed over this matter. PW-7 Santosh Kumari; On chief examination stated that in the year 2004 she was posted as RET in the Primary School Khadar; now today that school has been upgraded up to middle school; she knows the accused; in the year 2004 he was posted as permanent teacher in that school; Mst Anju Devi was studying in 1st class in that year in that school; on 02.09.2004 she was on leave; on 03.09.2004 she came to school and accused also came to school on that day; on 04.09.2004 when she went to school many people were assembled outside the school; they did not allow her to enter the school premises; on that day students did not come to school; the people told her that the accused has done something bad with Anju Devi. On cross examination the witness stated that in the year 2003 she was posted as RET teacher; she was getting Rs.1500/- per month; this is wrong to say that she attended the school on 02.09.2004; she did not mark her attendance on 02.09.2004; she had applied for the leave and she does not know whether the leave has been sanctioned or not. On 08.09.2004 SHO recorded her statement in the school; she has heard the statement made u/s 161 CrPC but in that statement it is not recorded that the people had assembled outside the school and did not allow her to enter the school; it is also not recorded that the people told her that the accused has done something bad with Anju Devi. PW-8. PW-8. Hari Lal; On chief examination stated that Anju Devi is her daughter; now she studies in 4th class and on the day of occurrence she was studying in 1st class; on the day of occurrence he had gone for cattle grazing and returned after 20 days; after returning home he came to know that his brother has filed a report with police station; his brother Suraj Parkash told him that the accused has done something bad with her daughter Anju Devi by taking her into his lap. On cross examination the witness stated that he had gone for cattle grazing for away from his house; the place of grazing of cattle is 8/10 km away from his house and it takes morning to evening to come back to home; he came to know about the evident after 20 days when he returned to his home; the police also recorded his statement. It is recorded in the statement u/s 161 CrPC that his profession is cattle grazing and labourer; in the month of Sept. 2003 he had gone to Delhi for labour work; it is wrong to say that he heard the incident on telephone. PW-10 Dr. Dev Raj; on question by PP the witness stated that on 04.09.2004 he was posted as Assistant Surgeon SDH Bani and on that day he examined one Miss Anju Devi D/o Sh. Hari Lal caste Brahman R/o Khader and on examined observed as under:- No sign of struggle observed. Clothes are normal No blood or semen stains observed on clothes No injury on face, chest, thigh or any other part of body seen. Local examination revealed labia majors and labia minors were normal. Hymen was normal and intact. There was no injury to hymen observed. There was no injury to perinea region and anus. In his opinion there is no evidence suggestive of sexual offence; the certificate is in his hand and bears his signature; it is marked as EXPW-DR. On cross examination by the defence counsel the witness deposed that no sign of any mark of violence of any nature was found on whole of the body of the victim including her private parts. No question on re-examination was asked. PW-12 Mool Raj; on chief examination stated that he has submitted report 78/FSL dated 31.01.2005 exhibited as EXPW-MR. On cross examination by the defence counsel the witness deposed that no sign of any mark of violence of any nature was found on whole of the body of the victim including her private parts. No question on re-examination was asked. PW-12 Mool Raj; on chief examination stated that he has submitted report 78/FSL dated 31.01.2005 exhibited as EXPW-MR. He has signed the report and the same is on the file; the report is correct. On cross examination by the learned defence counsel nothing was asked. PW-13 Mohd Taj; on chief examination stated that he was posted as SHO P/S Bani on 04.09.2004; on that day a complaint was filed vide EXPW-SP which is placed on the file. On the filing of the complaint, an FIR was lodged under FIR No.41/2004 of Police Station Bani for offence under Sections 376/511 RPC; he has heard the FIR and complaint which is correct; he has also signed the FIR and complaint which are also correct and exhibited as EXPW-SP-1. During the investigation he also prepared the site plan which is exhibited as EXPW-TM; he also effected the seizure memo exhibited as EXPW-SP-2; the seizure memo is in his hand writing and same are correct; Miss Anju Devi was also subjected to medical examination; statements of the witnesses were also recorded u/s 161 CrPC; he conducted the investigation upto 08.11.2004 and thereafter he was transferred to some other place. On cross examination by the learned defence counsel produced a carbon copy of the seizure memo and on this learned PP objected to it and argued that document cannot be produced at this stage of the trial because that document remain in possession of the learned defence counsel for a long time; the carbon copy was shown to the witness who acknowledged the carbon copy and found it correct; the same is exhibited as EXPW-SP-2 which has been signed by the witness himself and stated that there are his signatures; in both the original and carbon copy there are original signatures of the witness; he has also recorded the statement of the witnesses u/s 161 CrPC and the same has been written on spot. These were the statements of prosecution witnesses. The accused in his defence produced only one witness i.e DW-Mohd Aiyaz. These were the statements of prosecution witnesses. The accused in his defence produced only one witness i.e DW-Mohd Aiyaz. DW-Mohd Aiyaz; on chief examination stated that on the day of occurrence he was working in the school where the accused was posted as teacher; he was repairing the windows and doors of the school. During his working he has not seen any such incident in the school. On cross examination the witness stated that he cannot produce any record to authenticate that he was working in the school on the date of occurrence. 6. Heard learned counsel for both sides and gone through the trial court record minutely. 7. In AIR 2012 (SC) 2281 in case titled Narinder Kumar Vs. State (NCET of Delhi), it has been held as under:- 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 take support from weakness of case of defence. 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. The accused is entitled to benefit of every reasonable doubt. Prosecution has to prove its case beyond reasonable doubt and take support from weakness of case of defence. 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. 8. Court below after conclusion of trial held that only eye witness PW Shakti Kumar, though minor after being declared as competent witness has stated nothing and has been declared hostile; he has even stated that he was told by police and on their saying he gave statement u/s 164 Cr.P.C. before police. I have gone through the statement of this witness; the finding of court below is not perverse. Even in cross examination this witness stated that there was two three policemen with Suraj Parkash (complainant) in the police station; after teaching him about the statement he was taken to the court where his statement was recorded; when he was giving statement in the court, PW-Suraj Parkash and policemen were sitting outside; he returned back and accompanied them; they had directed him to say the same as he has been told by them. 9. Generally in offences under Section 376 or 376/511 RPC, there happens to be no eye witness. But in present case, prosecution has cited one eye witness named above. But this most important and material witness has not supported the prosecution case. 10. Further the statement of victim though recorded during investigation u/s 164 Cr.P.C. by JMIC on 28.09.2004 and under section 161 Cr.P.C. on 8.8.2005, was found unfit to give statement by trial court during trial; trial court has categorically held that she is unable to understand the questions put to her. 11. Further, medical examination certificate of victim EXPW-DR, also reveals no sign of violation on the body of victim. Other witnesses PWs Mohinder Singh, Santosh Kumari and Koshalya Devi, mother of victim, Suraj Parakash and Hari Lal, the father of victim, are hear say witnesses. 11. Further, medical examination certificate of victim EXPW-DR, also reveals no sign of violation on the body of victim. Other witnesses PWs Mohinder Singh, Santosh Kumari and Koshalya Devi, mother of victim, Suraj Parakash and Hari Lal, the father of victim, are hear say witnesses. In arriving at conclusion about guilt of accused charged with heinous crime, the court has to judge the evidence by yardsticks of probabilities. Every case has its own facts. The law does not permit the court to punish the accused on basis of moral conviction or suspicion. The burden of proof never shifts, it is always on prosecution. 12. Law is clear that prosecution has to prove its case beyond reasonable doubts. Burden to prove prosecution version, is wholly upon the prosecution. The courts while appreciating the evidence in criminal cases have to see the degree of proof in maxim than that of civil case. The evidence produced by prosecution should be legally admissible. If there comes the slightest doubt regarding the involvement of accused than court should not go on convicting the accused. 13. In totality of facts and circumstances of the case and as held above, I am of the considered opinion that prosecution has failed to prove its case beyond reasonable doubts. Hence, this acquittal appeal is dismissed.