1. - This appeal has been filed by the State of Rajasthan against the judgment and order of acquittal dated 6.6.89 passed by the learned Sessions Judge, Jodhpur in Sessions Case No. 63/88 by which the learned Sessions Judge acquitted the accused respondent for offence under Section 376 I.P.C.

2. This appeal arises in the following circumstances :

(i) On 27.4.87 at about 1.35 p.m. P.W.1 Pappuri (hereinafter referred to as the prosecutrix) gave an oral information Ex.P/1 to P.W.10 Jafar Ali, SHO, Police Station Bilara stating that yesterday at about 3 p.m. he went to her Bare for throwing cow's dunk in the Bara and at that time no body was there and thereafter accused respondent came from her back side and after catching hold her hair, put her on the ground and opened her Chaddi and he also put off her clothes and put a handkerchief in her mouth so that she could not cry. Thereafter he put his penis into her vagina and committed rape with her. When accused respondent was running, her cousin sister P.W.2 Baburi also reached there, but she did not inform her about this incident and she returned back to her house and Baburi informed her brother.

3. That statement Ex.P/1 it was reduced into writing by P.W.10 Jafar Ali and the same is Ex.P/1 and on the basis of that statement police chalked out regular FIR Ex.P/9 and investigation commenced.

4. During investigation P.W.1 Pappuri was got medically examined by P.W.5 Dr. Tej Singh and her medical examination report is Ex.P/3 and the accused respondent was also got medically examined and his medical examination report is Ex.P/4.

5. After investigation challan was filed by the police against the accused respondent for offence under Section 376 I.P.C. in the Court of Magistrate, from where it was committed to the Court of Sessions Judge, Jodhpur.

6. On 12.5.88 the charge for offence under Section 376 I.P.C. was framed against the accused respondent who pleaded not guilty and claimed trial.

7. During trial, as many as 10 witnesses have been produced on behalf of the prosecution and statement of accused respondent was recorded under section 313 Criminal Procedure Code and no witness was examined in defence.

8. After conclusion of the trial, the learned trial Judge acquitted the accused respondent for offence under Section 376 I.P.C. through his judgment and order dated 6.6.89 inter alia holding :

(i) That P.W.1 Pappuri has been declared hostile and in examination in chief, she has categorically stated that the accused respondent did not do anything with her.

(ii) That she has further admitted in her statement that the statement was given as per saying of her Uncle.

(iii) That for reporting the matter to the police, the advice was given by Madhoji Ward Panch.

(iv) That so far as medical evidence is concerned, the medical examination report Ex.P/3 does not bear the thumb impression and identity marks of the child prosecutrix. In this circumstances this report is doubtful on the point whether it belongs to P.W.1 Pappuri or not.

(v)That thee is no independent evidence to support the statement of P.W.1 pappuri and hence, the learned Sessions ' Judge acquitted the accused respondent.

9. Aggrieved from the said judgment and order of acquittal dated 6.6.89 this appeal has been filed by the State of Rajasthan.

10. In this appeal, the learned P.P. has argued that the findings of learned trial Judge by which he acquitted the accused respondent are erroneous one and they should be set aside and this State appeal should be allowed.

11. On the other hand, the learned counsel for the accused respondent submits that the judgment and order of the trial Judge are based on correct appreciation of evidence and the slime do not call any interference by this Court.

12. I have heard both and perused the record.BURDEN OF PROOF

13. 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 not part of the duty of the d