JUDGMENT 1. Dev Shanker has filed this appeal against the judgment of the learned Sessions Judge, Udaipur, dated April 29, 1972, whereby the appellant has been convicted for offences under sections 302 and 376 I.P.C. The appellant has been sentenced to imprisonment for life under the first count whereas for the another count also the learned Sessions Judge passed sentence of life imprisonment. 2. At the time of the incident i.e. on February 5, 1970. the appellant was a lad of 12 years. Kumari Savita on whom the rape is alleged to have been committed was a girl of 6 years. Both Dev Shanker and Kumari Savita were the neighbours and they used to play in the village. On the fateful day i.e. on February 5, 1970, the prosecution case is that Kumari Savita was taken away by Dev Shanker to Badio-ki-dungri, perhaps on a pretext of giving her the sugar cane to eat. Both, Kumari Savita and Dev Shanker were last seen at Badio-ki-dungri eating sugar cane. Next morning when Kumari Savita did not return her home a search was made and it was found that Kumari Savita was lying dead in a pit at the Badio-ka-dungri. The dead body of Kumari Savita was subjected to post mortem examination and Dr. K.M. Jain (P. W. 14) found that she had sustained as many as 23 injuries on her person and her hymen was found ruptured and its margins were noticed as red and covered with blood. From this examination the doctor came to the conclusion that rape was committed on Kumari Savita and thereafter injuries were inflicted on her person with blunt weapon. In the opinion of the doctor, injuries Nos. 1 to 19 and 22 and 23, as mentioned in the post mortem report were, simple while injuries Nos. 20 and 21 were grievous. In his opinion these two injuries were sufficient in the ordinary course of nature to cause death. 3. A report was lodged at the Police Station and during the course of investigation it was discovered that Dev Shankar had taken Kumari Savita from her house and they were seen eating sugar cane at Badio-ki-dungri. 20 and 21 were grievous. In his opinion these two injuries were sufficient in the ordinary course of nature to cause death. 3. A report was lodged at the Police Station and during the course of investigation it was discovered that Dev Shankar had taken Kumari Savita from her house and they were seen eating sugar cane at Badio-ki-dungri. Dev Shanker was arrested and it is said that at his instance his knicker was recovered which was ultimately found to be blood stained on the back side stitches and the serologist was of the opinion that it was stained with human blood. 4. There was no eye witness in this case and, therefore, the entire matter hinges on the circumstantial evidence. The circumstances relied upon by the trial court to convict the appellant are : (i) that Kumari Savita and Dev Shanker took sugar cane from the field of P.W. 3 Tajing ; (ii) that P.W. 5 Ramesh saw the deceased and the accused from a bus in which he was going at Badio-ki-dungri a place near the place of occurrence from where the dead body was discovered ; (iii) that the accused was found washing his hands and feet in a pool of Surajmal P.W. 6; (iv) that the half-pent Ex 8 was discovered as a consequence of an information given by the accused and that it was found to be blood stained; (v) that the blood found on the half pent was found positive for human blood; and (vi) that on examination of the accused who in the opinion of Dr. K. M. Jain was a lad of 12 years. It was discovered that his genital organ was normal and he had a physical power to commit rape as he was quite potent. Smegma was, however, not found on his organ. The learned trial Judge also place reliance on one another circumstance that at the time when the accused was examined by the doctor he admitted to the doctor that he had changed his clothes. In our opinion this fact has not been proved by any evidence led by the prosecution that really the clothes had been changed by the accused. 5. In our opinion this fact has not been proved by any evidence led by the prosecution that really the clothes had been changed by the accused. 5. We carefully perused the testimony of P. W. 5 Ramesh and P.W. 3 Tajing and no doubt is left in our mind that a day prior to the date of the discovery of the orpse of Kumari Savita, the accused Dev Shanker was in the company of the deceased and that they were taking sugar cane at Badio-ki-dungri. But this circumstance of last seen in itself is not sufficient to prove the guilt of murder or rape on the accused. It is in the evidence that accused and deceased were neighbours and that they used to play in the village. Under these circumstances it will not be very uncommon for the deceased to go with the accused and after borrowing the sugar cane from Tajing P.W. 3 to take it to Dungri. 6. It is true that the Dr. K. M. Jain has found the boy quite potent and capable of committing intercourse but the doctor's evidence is silent on this point whether a lad of 12 could rupture the hymen in the way it was done. It was very necessary for the prosecution to establish that while committing intercourse a boy of the age of 12 and having a physique which the accused person possessed, he could commit rape in such a manner so as to rupture the hymen of the victim. 7. No doubt the doctor is of the opinion that smegma is generally found in the age group of children of the accused but in the present case he did not find smegma on the genital of the accused. But the absence of smegma alone cannot lead us to the conclusion that the victim was subjected to intercourse by this boy unless there are some other positive indications to suggest that the accused was the real perpetrator of the crime. 8. It is not the case of the prosecution that half-pent which was recovered at the instance of the accused was washed away by him. The only evidence that has come on the record is that the accused was seen washing his hands and feet in the pool. The act of washing of feet cannot be connected with the crime alleged to have been committed by the accused. The only evidence that has come on the record is that the accused was seen washing his hands and feet in the pool. The act of washing of feet cannot be connected with the crime alleged to have been committed by the accused. If really he had committed the rape then he must have been found washing his clothes ought to have been which was found to be smeared with blood that, which must have come out due to the rupture of the hymen. This is not the case of the prosecution that the accused was seen washing his clothes. 9. Ex. 8 is the half-pent that was discovered at the instance of the accused. There is no independent evidence to show that the accused was putting on that half pent on that fateful day. This was found containing blood stains on the back side where the stitches have been put. It is true that the stitches were found to be stained with human blood but it is difficult to imagine that in the commission of rape on a girl of this age blood could go on the back side of the knicker and could be detected only on such a portion of the article where it is difficult for the blood to go. The presence of human blood on the back stitches of the half-pent by itself is not sufficient to connect the accused with the commission of the crime. 10. While deciding a case on circumstantial evidence it is cardinal rule of law that the circumstances must necessarily lead to the commission of the crime and should not be explained on any other hypothesis except the crime committed by the accused, in this particular case this possibility cannot altogether be ruled out that after the accused had left that girl at the Dungri, some other person could have committed this heinous crime. 'The accused is a lad of 12 and it is difficult for us to conceive that after committing rape on a girl of this age with whom he used to play daily he would go to the length of killing by stone throwing because stones were recovered by the Investigating Officer near the pit where the dead body was lying. In such circumstances the benefit of doubt shall have to be extended to the accused. 11. In such circumstances the benefit of doubt shall have to be extended to the accused. 11. We, therefore, allow this appeal and while extending the benefit of doubt to accused Dev Shanker we acquit him of the charges under sections 302 and 376 I.P.C. and the sentences of life imprisonment awarded to him in both these counts are also set aside. The accused-appellant is on bail. He need not surrender. *******