1. Feeling aggrieved by the judgment of conviction and order of sentence dated 12.11.2009 passed by learned Special Judge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Seoni District Seoni in Sessions Trial No.61/08 convicting the appellant under section 376 IPC and thereby sentencing him to suffer imprisonment of 7 years RI and fine of Rs.1,000/-; in default of payment of fine additional RI for six months, the appellant has knocked the doors of this Court by preferring this appeal under section 374(2) of the Code of Criminal Procedure, 1973.

2. Sans unnecessary details the facts lie in a narrow compass. Suffice it to say that the appellant carried the prosecutrix in the field and nearby the bushes he committed rape over her. The FIR (Ex.P-2) was lodged by her brother, namely, Tirath on 17.7.2008. On lodging of the first information report, the criminal law was triggered and set in motion. The investigating agency sent the prosecutrix for her medical examination. The investigating agency in furtherance to its investigation prepared the spot map; recorded the statement of witnesses; and sent the accused for medical examination.

3. After the investigation was over, a charge-sheet was submitted in the committal Court which on its turn committed the case to the Court of Session and from where it was received by the trial Court for trial.

4. The learned trial Judge on the basis of the allegations made in the charge-sheet framed the charge against the accused-appellant under section 376 of IPC and also under section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short ‘the Act of 1989’) which the appellant denied and requested for the trial.

5. In order to bring home the charges, the prosecution examined as many as 10 witnesses and also placed Ex.P-1 to P-14 the documents on record. The defence of appellant is of false implication. The same defence he has put forth in his statement recorded under section 313 of CrPC. However, he did not choose to examine any witness in support of his defence.

6. The learned trial Court on the basis of the evidence placed on record came to hold that the charge under section 3(2)(v) of the Act of 1989 has not been proved and eventually acquitted the accused-appellant from the said charge. The State has not filed any appeal against the said charge. However, the learned trial Court on the basis of evidence placed on record came to hold that the charge under section 376 of IPC is proved against the appellant and eventually convicted him and passed the sentence which I have mentioned herein above.

7. In this manner this appeal has been filed by the appellant assailing his judgment of conviction and order of sentence.

8. The contention of Shri Paras Nath Das, learned counsel for the appellant-accused is that on going through the entire testimony of the prosecutrix and other witnesses, it cannot be said that the appellant has committed the offence under section 376 of IPC because the prosecutrix has not at all stated any of the ingredients as envisaged under section 375 of IPC.

9. On the other hand, Shri Umesh Pandey, learned Public Prosecutor argued in support of the impugned judgment and submitted that cogent reasons have b een assigned by the learned trial Court convicting the appellant and, therefore, this appeal be dismissed.

10. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed.

11. I have read the statement of prosecutrix microscopically and I find that nothing has been stated by her in order to attract the ingredients of section 375 of IPC. To me, unless and until the essential ingredients of section 375 IPC are deposed by the prosecutrix in her testimony, a person cannot be convicted for the offence under section 376 of IPC. On bare prusal of the testimony of the prosecutrix in examination-in-chief as well as cross-examination, this Court finds that relevant questions