C.L. SONI, J.

This appeal is filed under Section 374 of the Code of Criminal Procedure, 1973 (‘the Code’) against the judgment and order dated 12.3.2013 passed by learned Sessions Judge, Sabarkantha at Himmatnagar in Sessions Case No. 68 of 2011, whereby the appellant is convicted for the offence under Section 376 of the Indian Penal Code (‘the Penal Code’) and sentenced to suffer rigorous imprisonment for 10 years with fine of Rs. 10,000/- and with further imprisonment of three months on failure to deposit the amount of fine.

2. As per the case of the prosecution, complainant Premilaben, wife of Gopalsinh Natvarsinh Parmar, lodged complaint on 25.2.2011 with Himmatnagar Town Police Station stating that she has one son and two daughters, out of which Sanjaysinh is eldest, aged 12 years, Artiben, aged 9 years and youngest Parvatiben, aged 6 years; that her son Sanjaybhai and daughter Artiben go to school walking through the field; that on 25.2.2011, her son Sanjay and daughter Artiben and other children left for school in the morning at 7 O'clock and her husband left for his job to Sabar Dairy at 8 O'clock and she alone was at home and doing household work; that at about 12.30 noon, his son Sanjaysinh and children of her elder brother-in-law (Jeth Surajmalsinh) came home from school and therefore, she asked Sanjaysinh as to why Arti did not come, to which Sanjaysinh said that Arti was coming behind with daughter of Ramsinh Becharsinh Thakor but thereafter, since Arti did not come home, she went for search of her daughter Arti and on the way, she found her daughter Arti lying at the corner of the field without any cloth on her body and on seeing blood on her private part, legs and palms of the hands, she shouted and thereafter her brother-in-law Divansinh Natvarsinh Parmar came rushing and they took Arti home, where other family members came and her daughter said that when she was coming back from school, one person, who was sitting on road came behind her and suddenly closed her mouth, lifted her and took her in the field of Castor plants (Erenda) and removed her cloths; at that time, she shouted Grandpa Grandpa (Dada Dada) but nobody came and he committed sinful act and left the place; that her daughter was then taken to Himmatnagar Harsh Hospital from where she was taken to Civil Hospital at Himmatnagar as per the advise of doctor. Such complaint given to the police station was registered as C.R No. 41 of 2011 for offence under Section 376 of the Penal Code and after charge-sheet was filed and the case was committed to Sessions Court, the Sessions Court framed charge on 21.11.2011 at Exh.8 under Section 376 of the Penal Code against the appellant. The appellant since did not plead guilty, was put to trial.

3. The prosecution examined 16 witnesses, including complainant Premilaben, victim Artiben, Medical Officers, Mamlatdar - the Executive Magistrate who conducted Test Identification parade, the investigating officer, and produced documentary evidence, concerning medical examination of the victim, medical examination of the accused, test identification parade of the accused, opinion of Forensic Science laboratory with serological report etc. After evidence of the prosecution was over, statement of the appellant under Section 313 was recorded. Learned Session Judge on appreciation of the evidence has recorded finding that the prosecution has remained successful in proving the charge against the appellant and that considering the evidence adduced by the prosecution, it becomes clear that the appellant is involved in the offence of rape and passed impugned order for conviction and sentence.

4. Learned advocate Mr. N.K Majmudar appearing for the appellant submitted that as per the complaint and the evidence of the complainant, victim Arti was left behind and therefore it was not possible either for her brother Sanjay or other children to see who was the person responsible for committing rape on the victim. Mr. Majmudar subm