Hon'ble Mohd. Tahir,J.

This criminal appeal has been filed against the judgment and order dated 17.8.1982 passed by IInd Additional Sessions Judge, Saharanpur in Sessions Trial No.245 of 1981, State vs. Raj Kumar whereby the trial court had convicted the accused appellant of the charge under Section 376 IPC and sentenced him to undergo rigorous imprisonment for 3 years.

2. This is the case of rape, so the word 'prosecutrix' will be used in place of the name of the victim girl hereinafter in the judgment.

3. The prosecution case, in brief, is that the prosecutrix aged about 12 years had come to her sister's matrimonial house in village Karali as delivery to her sister was to take place. Her sister Vidya Wati is married to Tellu complainant. At about 3 p.m. on 14.7.1981 the prosecutrix went to bring grass from the field of Phullu Singh along with Raj Kumar accused where Raj Kumar is alleged to have committed rape on her. On the alarm of the prosecutrix, Rohtash, Suresh and others reached there who witnessed the occurrence and recognised the accused. On seeing them the accused started running away leaving the prosecutrix there. He was chased by the witnesses but could not be caught. Suresh informed Tellu complainant, who took the prosecutrix to the hospital and got her injuries examined on the same day at 8 p.m. by Medical Officer Incharge Primary Health Centre, Rampur. Her medical examination was again done on 15.7.1981 by Dr. M.D. Sharma, Medical Officer of District Hospital, Saharanpur who sent the girl for x-ray examination. On the basis of the medial reports and the x-ray report, the age of the girl was found to be about 12 years only.

4. On the basis of the written FIR a case under Section 376 IPC was registered at case crime no.149 of 1981 on 14.7.1981 at 9.10 p.m. in P.S. Deoband, District Saharanpur against the accused.

5. The prosecutrix was medically examined by Dr. S. Kumar and medical examination report is Ext.Ka.8. According to this report, the following things were found by the doctor on the person of the prosecutrix:

Injuries:-

(I) Contusion 2 cm x 1 cm on the back of right side over the scapular region reddish.

(II) Swelling on the face seen. No mark of injury seen.

On P/v examination: Thigh ANM

P/v Bleeding seen

Perenial tear about 1'' seen bleeding

Vaginal wall swollen and tender

rupture of membrane hymen

No pubic heirs, a few dried semen partially present on the swelling area.

Cervix - Teared and tender

The genuineness of the document was admitted and the formal proof was dispensed with by the defence counsel.

6. The Investigating Officer S.I. Sri Ram Swarup Yadav (PW-6) took into his possession the Garara of the prosecutrix on 16.7.1981 and prepared the memo in that regard which is Ext.Ka.3. He thereafter recorded the statement of witnesses Rohtash, Suresh, complainant Tellu and the prosecutrix. He also prepared the site plan (Ext.Ka.5). After his transfer, the investigation was handed over to Sri Bal Kishore Tyagi (PW-5) who recorded the statement of the accused Raj Kumar and after completing the investigation, submitted charge sheet (Ext.Ka.2) under Section 376 IPC against the accused appellant.

7. The trial court framed charge under Section 376 IPC against the accused appellant. The accused appellant pleaded not guilty and claimed trial.

8. The prosecution in order to prove its case examined six witnesses in all. They are PW-1 Tellu, PW-2 the prosecutrix, PW-3 Rohtash, PW-4 Suresh, PW-5 S.I. Bal Kishore Tyagi and PW-6 S.I. Ram Swarup Yadav.

9. PW-1 Tellu is the first informant of this case. He is the Bahnoi of the prosecutrix. He has proved the FIR (Ext.Ka.1). He is not the eye witness of the occurrence in question.

10. PW-2 is the prosecutrix and she is the victim of the crime in question. What she has stated in her examination-in-chief, in brief, is that she cannot say as to who had committed rape on her and she could not recognize his face. She had further stated that on the arrival of the wi