( 1 ) APPELLANT-ORIGINALACCUSEDOF Special (Atro.) case No. 15 of 1996 has challenged the judgment andorder ofconvictionandsentencerecordedbythelearned addl. Sessions Judge, Surat bywhichthelearnedtrial judgehasconvictedthe accused for the offences under sections 363, 366 and 376 of I. P. C. andundersection 3 (1) (II) of Atrocities Act and after hearing on the point ofsentence, the learned trial Judge has passed order of sentence for R. I. for 7 years and fine ofrs. 1000/-in default S. I. for 3 months for the offence under Section 363 of the I. P. C. and sentence for R. I. for10years and fineofrs. 1500/- in default S. I. for 3 months for the offence under Section 366 of the I. P. C. and sentence for R. I. for 10 years and fine of Rs. 2000/-indefault s. I for three months for the offence under Section 376 of the I. P. C. and sentence for R. I. for 6 months and fine of Rs. 500/- in default S. I. for 1 month for theoffence undersection3 (1) (II)of the Atrocity Act and all the sentencesimposedonhimwereorderedtorun concurrently. Appeal filed by appellant accused in which theprayerforbail was considered when the matter was notified for admission. As per order dated 28. 8. 1998 the division Bench has admitted the Appeal and the prayer for bail wasnotpressed. Accordinglythisappealis notified for final hearing.

( 2 ) WEHAVEHEARD Mr. Saurin Shah, learned advocate, whoappearedfortheappellantandmr. Abichandani, learned Addl. P. P. , who appeared for the respondent State. Mr. Shahappearing for the appellant has vehemently urged that the learnedtrialjudgehascommittederrorin appreciatingtheevidencewiththeresultthatthe learned trial Judge hasacceptedtheevidenceofthe prosecutionwitnessesand held that the prosecution has established the casebeyondreasonabledoubtandthe accusedisconvictedfortheaboveoffences,which resulted into miscarriage of justice. He next urged that as found from the evidenceofvictimsunita,beinga minor,sheinturn has stated that she was not knowing theaccusedandthelearnedtrialjudgehaswhile appreciatingherevidencenot properly looked into the aspect that asfoundfromherevidenceshehasnot identifiedtheaccusedevenaftertheaccusedwas arrested and no identificationparadewasarrangedin which Sunitahasidentifiedthe accused. According to mr. Shah that there is every possibility ofmisidentity oftheaccusedandaccordingtomr. Shahthatthe conviction recorded by the learned trialjudgedeserves tobesetasidebygivingbenefitofdoubt to the appellant accused. Mr. Shah next urged that inlightof theevidenceof victim Sunita, who is a minor between 9 to 10 years, and as found from herevidencewhereinat thetimeof committing rape on her on the fateful night according to her she had sustained some injuriesonthe backportion of her body and further that she has also tried to assault the accused person,who had committed rape and admittedly as found from the medical evidence, there is no injury found on victim Sunita nor anyinjury is found on the accused person and this is a case in which at least the accused deserves tobeentitledfor benefit ofdoubt. Henext urged that there is also a delay in lodging the FIR as according to theprosecution case,the incident in question has occurred on the night i. e. on 9. 12. 1995 after 8. 30 P. M. and the incidenthas occurredinthesim of the field of Kudsad village and the complaint was lodged before the police on 12. 12. 1995. Mr. Shah has accordingly urged that there is adelayfor about2daysin not disclosing the offence and that is fatal totheprosecution. Henexturgedthatthe independentevidenceofwitness Chhotubhai examined by the prosecution asp. W. 6alsodoesnotsuggestthat victimsunitahasdisclosedbeforehimthat she was subjected to rape by the accused person at the field when she reached at the field where Chhotubhai was workingin afieldwith other labourers and even victim Sunita has not disclosed any incident of rape on her by theaccused person. Accordingtomr. Shahthatthere is no other evidence corroborating the evid