Hon'ble Mrs. Ranjana Pandya, J.

1. Challenge in this appeal is to the judgment and order dated 30.7.2010 passed by Additional Sessions Judge, Court No. 1, Saharanpur in S.T. No. 398 of 2009 (State Vs. Tauseef) arising out of Case Crime No. 128 of 2009, under Section 376 I.P.C., Police Station-Kotwali Dehat, Saharanpur, District-Saharanpur whereby the trial court found the appellant guilty under Section 376 I.P.C. and sentenced him to 10 years rigorous imprisonment and Rs. 25,000/- fine with default stipulation.

2. Filtering out unnecessary details the prosecution story as per the prosecution version is that the informant alongwith his family was residing in the Dera of Tauseef. On 15.3.2009 at 7:25 p.m., the informant went to the Doctor with his wife Asheeda. He had three children. The victim aged about 4 years was left at the house. When the couple returned from the Hospital at 9:00 p.m., they saw that the accused was lying on the victim and trying to rape her. The victim was lying on the cot and was shouting and raising alarm. On seeing this, the informant raised alarm, on that the accused-appellant fled away. The victim was bleeding, hence the report was lodged.

3. On the basis of this F.I.R., chik report was scribed by P.W. 4 Shashi Kumar, which was proved as Exhibit Ka-4.

4. On the basis of this, G.D. (Exhibit Ka-5) was scribed by this witness. The victim was examined by P.W. 3 Doli Kapoor, who found that secondary sexual characters were not developed. There was swelling in the hymen at 3 O'clock position. There was slight teas in the fourchette 1-2 c.m. There was slight oozing of blood. The victim was bleeding. Blood stain were present around the thighs in slight quantity. Two slides were prepared. The Doctor proved the medical report as Exhibit Ka-2 and the supplementary report as Exhibit Ka-3.

5. On 15.3.2009, investigation of the matter was entrusted to P.W. 5 S.I. R.S. Chauhan, who inspected the site and prepared the site plan which was proved as Exhibit Ka-6. On 18.3.2009, he recorded the statement of Rajkumar, Naresh and took in possession the panty of the victim, who narrated the incident in their own words.

6. On 31.3.2009, the supplementary report was copied in the C.D. The memo as regards sealing of panty was prepared and proved by this witness as Exhibit Ka-7. The investigation ended into a charge-sheet, which was proved as Exhibit Ka-8. The panty was proved as material Exhibit 1.

7. The prosecution examined as many as six witnesses. P.W. 1 is Mustkeem-informant and father of the victim, who has proved the written report as Exhibit Ka-1. P.W. 2 is Asheeda, wife of the informant and mother of the victim. The statement of P.W. 3, P.W. 4 and P.W. 5 has been discussed by me. P.W. 6 is Dr. Surendra Singh, who conducted ossification test and proved the report as Exhibit Ka-9 and the X-ray plate as material Exhibit 3.

8. After closing of the prosecution evidence, the statement of the accused was recorded under Section 313 Cr.P.C., in which he claimed that he was innocent and falsely implicated to be pressurized. The accused-appellant submitted the certified copy of F.I.R. relating to Crime No. 463 of 2008, copy of charge-sheet in the aforesaid crime number, copy of F.I.R. relating to Crime No. 546 of 2009 against the informant, copy of charge-sheet in the aforesaid crime number, copy of F.I.R. in Crime No. 356 of 2009 against the informant and his brother, copy of F.I.R. in Crime No. 275 of 2008 against the informant and his brother and copy of F.I.R. in Crime No. 236 of 2010 and cutting of some newspapers.

9. After hearing the learned counsel for the parties, the lower court convicted the appellant as stated in para 1 of the judgment.

10. Feeling aggrieved, the accused-appellant has come in appeal.

11. I have heard the learned counsel for the parties and perused the record of the trial court.

12. Learned counsel for the appellant has submitted that the victim was not examined by the prosecution. There was