Hon’ble Mrs. Ranjana Pandya, J.—Challenge in this appeal is to the judgment and order dated 25.7.2015 passed by the learned Additional Sessions Judge/Special Judge, SC/ST Act, Kannauj in Special Session Trial No. 183 of 2012 (State v. Hanif) arising out of the Crime No. 116 of 2012 under Section 376 IPC, 3(ii)(v) SC/ST Act, Police Station Gursahaiganj, District Kannauj whereby the accused was found guilty and convicted under Section 376 IPC read with Section 3 (2) (v) SC/ST Act and sentenced to 10 years’ rigorous imprisonment and a find of Rs. 5,000/- with default stipulation.

2. Brief facts of the case are that Ishwar Dayal got lodged a written report at Police Station Indergarh, District Kannauj stating that on 28.3.2012 near the house of Prem Singh, the function of Bhagwat was being going on. His minor daughter aged about four years had gone to see Bhagwat function. He was present at the house. At 2 o’clock in the day time, he heard the shouting of some people, then he also ran towards the hut behind the house of Prem Singh. Abhinesh, Raj Bahadur and other villagers also reached there. They all saw that Hanif, servant of Ram Naresh was raping his minor daughter aged four years. On seeing them, Hanif fled away. He was apprehended and the child was brought alongwith her mother to the police station where report was got lodged. Dr. Seema Shukla PW-4 medically examined the victim and proved the medical examination report as Ext. Ka-2 and the ossification report as Ext. Ka-3. She found the following injuries on the body of the victim :

1. Fresh lacerated wound of 2 cm x 0.5 cm in private part which bleeds on touch present at perineum, at Introit’s at 6 o’clock position downward.

2. Sexual character of the victim had not developed. She had 20 teeth in her mouth. Vaginal slide was prepared.

3. Constable Mulayam Singh prepared the chik report and scribed the GD which were proved as Ext. Ka-4 and Ka-5. Investigation was entrusted to PW-6 SI Munnu Lal Verma who recorded the statement of witnesses, inspected the spot at the pointing out of the informant, which was proved as Ext. Ka-6. The victim was sent for medical examination. The investigation ended into a charge-sheet, which was proved by this witness as Ext. Ka-7. PW-7 Dr. R.D. Gautam conducted the ossification test on the victim and proved the report as Ext. Ka-8 and the X-ray plate as Ext. Ka-9.

4. The prosecution examined as many as six witnesses. PW-1 is Ishwar Dayal, the father of the victim who proved the written report as Ext. Ka-1. PW-2 is Raj Bahadur who is said to have seen the accused committing rape on the victim. PW-3 is the victim. The evidence of PW-4 Dr. Seema Shukla, Constable Mulayam Singh and PW-6 SI Munnu Lal Verma and PW-7 Dr. R.D Gautam have already been discussed by me.

5. After the prosecution evidence was concluded, the statement of accused was recorded under Section 313 Cr.P.C. in which he denied the occurrence and stated that he was assaulted and was falsely implicated. The accused produced Dr. Akhilesh Kumar as DW-1 who proved the injuries sustained by the accused. He further proved the injury report as Ext. Kha-1.

6. After hearing the counsel for the parties, the learned Court convicted and sentenced the accused appellant as narrated in para-1 of the judgment.

7. Feeling aggrieved, the accused appellant has preferred the present appeal.

8. I have heard Sri P.C. Srivastava, Amicus curiae on behalf of the appellant, learned AGA for State and perused the record.

9. Learned AGA appearing for the State has supported the impugned judgment and order and submitted that the conviction and sentence awarded to the accused appellant is based on evidence available on record against which the present appeal is not maintainable and is liable to be dismissed.

10. As far as the occurrence is concerned, it is said to have taken place on 28.3.2014 at 2 o’clock in the day. Report of the occurrence was lodged on the same day at 4:00 p.m., the distance of police st