JUDGMENT : Chander Bhusan Barowalia, J. The present appeal has been preferred by the appellant/accused/convict (hereinafter referred to as “the accused”) laying challenge to judgment dated 03.09.2020, rendered by learned Special Judge, Kangra at Dharamshala, District Kangra, H.P., in Sessions Trial No.123N/ VII/2020/2018, whereby the accused was convicted and imposed fine of Rs.1000/upon the accused/appellant for the offence punishable under Section 323 of Indian Penal Code, 1860 (hereinafter referred to as “IPC”). 2. Leaving fiddling little details, the facts of the case can tersely be summarized as under: The prosecutrix moved an application to SHO Police Station, Nurpur, alleging therein that she is resident of village Samrel, Post Office, Baranda, Tehsil Nurpur, District Kangra, H.P., aged about 16 years. At about 12.00 noon, she was watching television in her house. On that day, there was a death in the village and her parents had gone there. In the meantime, accused Arjun Kumar came into her room and started forcibly teasing her and due to that, she found marks on her neck. When the accused was forcibly outraging her modesty, she was crying loudly. On her hue and cry, her mother came to home and on seeing her mother, the accused fled away from there and while the accused was leaving the place, he threatened her that if she disclosed anything to anyone, then he will kill her. After that, he fled away from the spot and her mother called his sister and brother-in-law and alongwith them, she went to Police Station for lodging the report. On this information, the formal FIR was registered. The victim was sent to the Civil Hospital, Nurpur for obtaining the MLC and the doctor disclosed that the injuries are simple blunt and during investigation, the Investigating Officer prepared the spot map, recorded the statements of witnesses and statement of victim under Section 164 Cr.P.C was got recorded and her date of birth record was obtained from the Panchayat and date of birth record of accused was also procured. After completion of investigation, the Investigating Officer came to the conclusion that the accused has committed offences punishable under Sections 452, 354A, 323, 506 IPC and Section 8 of Protection of Children from Sexual Offences Act, 2012. 3. Heard. After completion of investigation, the Investigating Officer came to the conclusion that the accused has committed offences punishable under Sections 452, 354A, 323, 506 IPC and Section 8 of Protection of Children from Sexual Offences Act, 2012. 3. Heard. Learned counsel for the appellant has vehemently argued that the learned Court below has failed to appreciate the factum of the incidence, which was not at all an offence under Section 452, 354A, 323, 506 and under Section 8 of the Protection of Children from Sexual Offences Act. He has argued that no witness has proved the offence by the learned Court below just on the basis of conjectures and surmises convicted the present petitioner and sentenced him to pay a fine of Rs.1,000/- under Section 323 of the Indian Penal Code. He has further argued that no case was proved against the accused under Section 323 IPC and his conviction under Section 323 IPC is required to be set aside. 4. In reply thereto, the learned Additional Advocate General on behalf of the respondent/State has argued that the prosecution has proved the case under Section 323 IPC beyond reasonable doubt and he has rightly been convicted. 5. In order to appreciate the rival contentions of the parties, I have gone through the record carefully. 6. The prosecution, in order to prove its case, has examined as many as eight witnesses to bring home the guilt of the accused. The statement of the accused, under Section 313 Cr.P.C., was recorded and he claimed innocence. No defence witness was produced by the accused. 7. PW-1 is the prosecutrix, who deposed that she was studying in 10th Class in Govt. Senior Secondary School Rit, Tehsil Nurpur, District Kangra, H.P. In the month of July, she appeared as SOS student in supplementary examination and her date of birth is 23.12.2002. She deposed that on 21.07.2018, she was watching TV around 10:30-11:00 a.m. Her parents had gone in the village to condole the death and during that time, accused came inside her house and when she asked the accused why he had come, he pushed her on the bed and pressed her throat. Due to pressing of her throat, his finger impression were on her throat. She tried to save herself. In the meantime, her mother came and the accused fled away. Due to pressing of her throat, his finger impression were on her throat. She tried to save herself. In the meantime, her mother came and the accused fled away. While fleeing away, the accused threatened her not to disclose this incident to anyone, otherwise he will kill her. Then her mother telephonically called her sister and brother-in-law, who came after some time and thereafter, they went to Police Station, Nurpur, and made a written complaint, Ex.PW1/A and she was got medically examined and her MLC is MarkA. She was produced before the Court where her statement under Section 164 Cr.P.C., Ex.PW1/B was recorded. In her cross-examination, she has deposed that mother of accused used to call her father as Mama and being in relation and she and accused are brother and sister. She denied that accused used to visit her house due to the above stated relation. She further deposed that when the accused entered the room, she asked the accused why he had come, when he caught hold her from her arm, she slapped him. On this, the accused threw her on the bed and pressed her throat. The accused had wrapped her hair around her neck and pressed it. The complaint, Ex.PW1/A was not written by her and she had only signed it. She is not aware as to who had written it. She denied that complaint, Ex.PW1/A was written at the instance of the police. She admitted that in Ex. PW1/A and Ex.PW1/B, it was not specifically written that accused had thrown her on the bed. Voluntarily stated that she had stated this fact. She denied that she is deposing falsely in this regard. She admitted that in Ex. PW1/B, it was written that she had quarreled with the accused regarding some matter. The matter was that she had asked the accused why he had come to her house. She admitted that, firstly she slapped the accused and then the accused slapped her and wrapped her hair around her neck and nothing else had happened. She admitted that the accused had not pressed her throat with the hands. Voluntarily she has stated that the accused had pressed her throat with her hair due to which, impression came on her neck. She denied that the accused had no intention to tease or sexually assault her. She admitted that the accused had not pressed her throat with the hands. Voluntarily she has stated that the accused had pressed her throat with her hair due to which, impression came on her neck. She denied that the accused had no intention to tease or sexually assault her. She denied that the above incident of her slapping the accused and the accused slapping her was in the nature of game played by the children, without any intention to tease the female. She admitted in her statement, Ex.PW1/B that it was recorded at Nurpur Court without any pressure and she had signed Ex. PW1/A after going through its contents. She denied that she is deposing falsely, due to tutoring by the police. 8. PW-2 Sushma Devi deposed that prosecutrix is her daughter aged about 16 years. On 21.07.2018, she alongwith her husband had gone in the village to condole the death and she returned back to home to check the water supply. When she entered the gate, the accused was holding his Footwears (Chapals) in his hand and fled away by the side of their house. She went inside the room of the prosecutrix, who was weeping. She inquired from the prosecutrix, who told that the accused had quarreled with her and wrapped her hair around her neck. Accused could have done anything with her. The prosecutrix had threatened the accused that she would inform her father about it and then accused had wrapped her hair around her neck. The accused is resident of their village. She called his mother to her house. The mother of the accused requested her not to tell about this incident to any other person and she would make the accused understand. She telephonically called her daughter Sneha, who came alongwith her husband and father-in-law. Thereafter, prosecutrix alongwith her sister and her husband went to the Police Station, Nurpur. The police came on next day. The accused had fled away from the house and police had called him. In her cross-examination, she admitted that the family of the accused is related to them in village relationship. The mother of the accused call her husband as Mama and they are in visiting terms and this fact was also disclosed to the police that accused had fled away from the side of the house, when she reached near the gate of her house. The mother of the accused call her husband as Mama and they are in visiting terms and this fact was also disclosed to the police that accused had fled away from the side of the house, when she reached near the gate of her house. She had also informed the police that her daughter had disclosed her that she threatened the accused that she would inform her father about this incident. She had also disclosed to the police that she called the mother of accused in her house, who requested her not to tell about this incident to any other person and she would make the accused understand. She is not aware that who had written complaint, Ex.PW1/A. She has further deposed that she is not aware whether Ex. PW1/A was read over and explained to the complainant. Voluntarily deposed that she was in tension at that time. She admitted that she was under tension due to the impression, which was there in the neck of her daughter. She admitted that her daughter had disclosed her that she had slapped the accused and then the accused had also slapped her and wrapped her hair around her neck. She admitted that, except this nothing else had happened. She denied that they had lodged the report only because there was impression on the neck of her daughter. She denied that being the mother of prosecutrix, she is disposing falsely against the accused. 9. PW-3 Sh.Ravinder Singh deposed that the prosecutrix is his sister-in-law. On 21.07.2018, they were at home and his mother-in-law telephoned him around 12:30 P.M. that accused had molested the prosecutrix at her home. Thereafter, he alongwith his wife, came to in-laws house within 510 minutes time and inquired from the prosecutrix, who told that the accused had slapped her and also tied her hair around her neck. He saw marks on her neck. Thereafter, they took the prosecutrix to Police Station, Nurpur and complaint, Ex PW1/A was given to the police and his wife also accompanied the prosecutrix to Civil Hospital, Nurpur. In cross-examination, he has stated that he was married about 2-2 ½ year back and his village is about 6-7 kilometers away from his in-laws house. He is not aware that accused is related to his in-laws and that the family of accused was in visiting terms with his in-laws. In cross-examination, he has stated that he was married about 2-2 ½ year back and his village is about 6-7 kilometers away from his in-laws house. He is not aware that accused is related to his in-laws and that the family of accused was in visiting terms with his in-laws. He deposed that he had met him once or twice. He denied that the complaint was not written by the prosecutrix, but by the police and they reached the Police Station around 2:00 P.M. He further denied that after consultation, they lodged false report and made a concocted story about the molestation. He denied that the prosecutrix was not molested by the accused. He denied that the prosecutrix never disclosed to him about the molestation by the accused. He denied that being related to the prosecutrix, he is deposing falsely. 10. PW-4 Dr. Satish Pal, has examined the prosecutrix and issued MLC, Ex. PW4/B and prescription slip, Ex. PW4/C. In cross-examination, he has denied that the police had disclosed the alleged history at the time of medical examination. He deposed that the police had written it in the application, Ex.PW4/A and before the examination of the prosecutrix, he had gone through it. He deposed that if one presses the throat of a person with the fingers, then the finger impression will not come, but only bruises will appear. It is possible that, if the victim resists the injuries being caused to her, then the assailant may also have some injuries. It is not possible to sustain the aforesaid injury on the throat, if the tail of the victim is wrapped around her neck and presses hard. In that case, there will be imprinted bruises, around the neck. He admitted that except the above noted injuries, there was no other injury on the person of the patient and the above, injuries could not be sustained by simple scratching as in that case there will be abrasions. There was no injury on the back of the neck. 11. PW-7 Smt. Saneha, deposed that she came to know from her mother regarding the incident and she also accompanied the prosecutrix to the Police Station and Hospital. In her cross-examination, she admitted that accused belonged to their caste, but denied that he related to them. There are around 7-8 houses surrounding her maternal home. 11. PW-7 Smt. Saneha, deposed that she came to know from her mother regarding the incident and she also accompanied the prosecutrix to the Police Station and Hospital. In her cross-examination, she admitted that accused belonged to their caste, but denied that he related to them. There are around 7-8 houses surrounding her maternal home. She denied that due to relations, the accused used to come to their house. She stated that he used to come only during functions. She denied that her mother used to call the father of accused as Mama, in the village relation, he is her Jeth. She admitted that at her maternal home, her parents alongwith prosecutrix and brother reside. In the Police Station, prosecutrix gave the complaint in writing, but denied that complaint, Ex PW1/A was not written by the prosecutrix or that it was written by the Police official. She admitted that the statement of prosecutrix was recorded in the Court of learned Magistrate at Nurpur, but she did not accompany her. She denied that the prosecutrix had not disclosed anything regarding molestation or threatening to her. She denied that the accused had not molested the prosecutrix, but only they had quarreled just like children. She is not aware that the prosecutrix had also slapped the accused. She admitted that they are not in talking terms with the family of the accused and prior to this incident, they were in talking terms. She denied that being a sister of prosecutrix, she is deposing falsely. 12. PW-8 SI Prittam Singh, deposed that he collected the entire evidence and according to his investigation, the accused had committed the offence. In cross-examination, admitted that the accused and prosecutrix belonged to same caste, but not aware that they are related to each other. He is not aware that the family of accused and prosecutrix having visiting terms. He is also not aware that the complaint, Ex.PW1/A was not written by the victim. He deposed that the complaint directly approached the Police Station. The statement under Section 164 Cr.P.C of the victim was also got recorded from the Court and statement under Section 161 Cr.P.C was recorded by the Lady Constable on 22.07.2018. He denied that Ex.PW1/A and subsequent statement of the victim was recorded by tutoring her by the police. He admitted that on that day, there was death in the village. The statement under Section 164 Cr.P.C of the victim was also got recorded from the Court and statement under Section 161 Cr.P.C was recorded by the Lady Constable on 22.07.2018. He denied that Ex.PW1/A and subsequent statement of the victim was recorded by tutoring her by the police. He admitted that on that day, there was death in the village. He denied that firstly the victim slapped the accused and then accused slapped her and except it nothing had happened. He admitted that the accused wrapped her ‘Goot’ (Tail) around her neck. He denied that the accused had no intention to tease or molest her and the aforesaid incident of slapping by the accused and victim to the accused was in the nature of the game played by the children. He denied that mother of the victim had not disclosed that she had seen the accused fled away from her house when she came to her house and reached near the gate. He is not aware that who had conducted the medical examination of the victim. The brother-in-law of the victim and her sister were residing five kilometers away from the house of victim. The Police Station from the house of the victim is around 18 to 20 kilometers. He denied that the brother-in-law and sister alongwith police officials manipulated the prosecution story and made the concocted story to implicate the accused in the present case. 13. After going through the entire evidence, the injury on the person of the accused, which is stated to be caused by the accused/appellant and his conviction under Section 323 IPC is only required to be considered at this stage. 14. There is no eye witness except the prosecutrix to the incidence. She could not say what was the reason and what was the intention of the accused in causing injury and why the accused had tried to throttle her neck. The victim and accused are of 16 to 18 years of age. They are the neighbours and in distant relations also. The case of the prosecutrix is that the accused tried to molest her, if that is so, then why the accused has tried to press her neck. It has come in evidence that there was some dispute with respect to the water supply and the prosecutrix slapped the accused. They are the neighbours and in distant relations also. The case of the prosecutrix is that the accused tried to molest her, if that is so, then why the accused has tried to press her neck. It has come in evidence that there was some dispute with respect to the water supply and the prosecutrix slapped the accused. As far as pressing of the neck by the accused is concerned, the same is not proved as per the medical evidence. 15. PW4, Dr. Satish Pal, in his cross-examination has deposed that if one presses the throat of a person with the fingers, then the finger impression will not come, but only bruises will appear and if the victim resists the injury being caused to her, then the assailant may also have some injuries. It is not possible to sustain the aforesaid injury on the throat, if the tail of the victim is wrapped around her neck and pressed hard. He has voluntarily deposed that in that case there will be imprinted bruises around the neck. Meaning thereby the injury mentioned in the neck is not by wrapping the tail around her neck and then pressed it. As per the doctor, if one presses the throat of a person with the fingers, then the finger impression will not come and only the bruises will appear and as per opinion, he has stated that the injury in question can be caused on the throat, if a person presses it with his fingers and thumb and the victim is resisting it. But the victim has nowhere stated that she had resisted while the accused wrapped her tail around her neck and according to the prosecutrix while she made the statement before the learned ACJM, Nurpur, she had deposed that she received an impression of tail on her neck, but this fact is not corroborated by the doctor, who has deposed that no impression was found on the neck and only bruises were found, which were simple in nature. In statement under Section 313 Cr.P.C., the defence of the accused is totally denial. 16. In these circumstances, it is difficult to hold that the accused has caused simple injury to the prosecutrix. It seems that there was dispute with respect to tap water. 17. In statement under Section 313 Cr.P.C., the defence of the accused is totally denial. 16. In these circumstances, it is difficult to hold that the accused has caused simple injury to the prosecutrix. It seems that there was dispute with respect to tap water. 17. In these circumstances, this Court finds that the suspicion is there whether the simple injury was caused by the accused by pressing the neck of the prosecutrix or it has otherwise due to scratching etc. There is no evidence to prove conclusively the guilt of the accused under Section 323 IPC. The golden rule of the criminal jurisprudence is that, prosecution is required to prove the case beyond the shadow of reasonable doubt and if two views are possible, the benefit of same goes to the accused. Applying the above law in the instant case, the prosecution has failed to prove the guilt of the accused under Section 323 IPC conclusively and beyond shadow of reasonable doubt. Hence, the conviction of the accused under Section 323 IPC is required to be set aside. 18. Consequently, the conviction and fine imposed upon the accused by the learned Court below under Section 323 IPC is quashed and set aside. 19. The present appeal is allowed and disposed of in the aforesaid terms, so also the pending application(s), if any. No order as to costs.