K.S. SIDHU, J. —The applicant Padam Singh has been convicted and sentenced by the learned Additional Sessions Judge, Aimer, as follows ;— (a) Rigorous imprisonment for seven years and a fine of Rs. 100/- or, in default, further rigorous imprisonment for three months, under sections 376 I.P.C. (b) Rigorous imprisonment for one year and a fine of Rs. 100/- or in default, further rigorous imprisonment for three months under section 354 I.P.C. The two sentences ordered to run concurrently. 2. The case of the prosecution may be shortly stated like this The appellant is next door neighbour of Narendra Kumar (PW 7). Both of them are living at the second floor of the same building in Ajmer. On 17th February 1981 at l.00 P.M. Narendra Kumar made a written report to police station Clock Tower, Ajmer, complaining that Padam Singh had committed rape on his three year old child, named Kanchan, at about 12 00 Noon that day. He saw the child bleeding. On enquiry, the child is said to have pointed towards Padam Singh as the culprit who had committed the crime. Padam Singh was present in the building at that time. Narendra Kumar took the child and Padam Singh to the police station with the help of PW. 6 Dinesh Kumar and PW 8 Suresh Chandra. 3. The Police immediately took up investigation. Shambhu Dayal. the Investigating Officer, seized the clothings of both Kanchan and the accused. Kanchan was examined a little later by Dr. Pushpa Lata Gupta (PW 2). Dr. Gupta found the thighs and external genetalia of the child soaked with blood. She was still bleeding from the vagina. Doctor sutured the torn genetalia and thus stopped the bleeding. She took two swabs, one for slides and the other for chemical examination. 4. Dr. Ramesh Bhargava, examined the appellant same day and found number of injuries on his person. These injuries are said to have been inflicted to him by supporters of Narendra Kumar at the time when he was being taken to the Police Station. 5. Dr. S.C. Nama, Medical Jurist of Jawaharlal Nehru Hospital, Ajmer also examined the appellant on February 17, 1981, for determination of the age of the appellant, his sexual potency and the condition of his male organ at that time. He found the age of the appellant around 19 or 20 and that he was sexually potent. 5. Dr. S.C. Nama, Medical Jurist of Jawaharlal Nehru Hospital, Ajmer also examined the appellant on February 17, 1981, for determination of the age of the appellant, his sexual potency and the condition of his male organ at that time. He found the age of the appellant around 19 or 20 and that he was sexually potent. He did not find any mark of external injury on the penis or any other genetalia. He did not see any foreign body on the public hair. He took urethral swab and smears for the purpose of chemical examination. He also took prepare ceil slide for determining the presence of vaginal epethelial cells. 6. Both Dr.Gupta and Dr. Nama, made the samples taken by them into sealed parcels and sent them to the Investigating Officer. It is also alleged that these sealed parcels were sent to the Chemical Examiner for analysis and report. On completion of investigation the police submitted a charge sheet against the appellant for committal proceedings preparatory to his trial under sections 376 and 345 I.P.C. On committal, the learned Additional Sessions Judge tried the appellant on the said charges mentioned above. 7. During the trial, the prosecution examined as many as 13 witnesses including Dr. Ramesh Bhargava, Dr. Pushpalata Dr. S.C. Nama, Dinesh Kumar, Suresh Chandra, Narendra Kumar, Shambhoo Dayal and Kanchan. It is important to mention here that the prosecution did not place on the record the report or reports, if any, of the Chemical Examiner, who examined the vaginal swabs of the child taken by Dr. Pushpalata and urethral swab and smears of the appellant taken by Dr. S.C. Nama. 8. In his statement under section 313 Cr.P.C. the appellant denied allegations made against him and protested his innocence. He pleaded that there was a quarrel between him and Narendra Kumar on February 17, 1981, at about noon time and that Narendra Kumar had given him beating. According to him, Narendra Kumar had falsely implicated him in this case to save himself from the consequences of the said beating. 9. The appellant examined one witness, namely Paman Dass in defence. This witness testified to a quarrel between the appellant and Narendra Kumar. He stated that after Padam Singh had suffered bleeding lips as a result of quarrel upstairs he came down to his shop, and sat down on a Mudha lying there. 9. The appellant examined one witness, namely Paman Dass in defence. This witness testified to a quarrel between the appellant and Narendra Kumar. He stated that after Padam Singh had suffered bleeding lips as a result of quarrel upstairs he came down to his shop, and sat down on a Mudha lying there. He further stated that Narendra Kumar arrived there and took the appellant away after a short while. 10. On a perusal of the statement of the child Kanchan, it becomes at once clear that the Additional Sessions Judge wasted his time in recording her evidence in asmuch as she cannot be a competent witness. Admittedly, she was a child of three arid a half years at the time of her examination. The learned Additional Sessions Judge did not conduct any preliminary examination of the witness with a view to determining whether she was able to understand questions and give rational replies thereto. Her statement now reveals that she does not even understand as to what is a penis. According to her, a penis is an article which remains lying in a cup-board in her house. She told the trial court that on her way to the court she had been told by her father that the appellant had defiled her by penetrating her vagina with his penis and fingers. She further stated that the appellants brother, Dilip, had also played similar mischief with her. 11. Sizing up the statement of this child as a whole, I am left in no doubt whatever that she was utterly incompetent by reason of her tender age to be a competent witness in this case. Her evidence must, therefore, be struck out from the record and kept out of consideration. 12. There is no other evidence on record to prove that the appellant raped Kanchan. Dr. S.C. Nama, who examined the appellant on February 17, 1981, did not find any mark of external injury on his penis. He did not see any foreign body on his pubic hair. It is significant to note that Dr. Nama had taken the urethral swab and smears for the purpose of chemical examination. Such chemical examination would have been helpful in determining whether the appellant had sexual intercourse that day or not. It is surprising to note that the prosecution did not place on record the report of the Chemical Examiner in that behalf. Nama had taken the urethral swab and smears for the purpose of chemical examination. Such chemical examination would have been helpful in determining whether the appellant had sexual intercourse that day or not. It is surprising to note that the prosecution did not place on record the report of the Chemical Examiner in that behalf. This must necessarily raise an adverse inference against the prosecution. 13. PW Narendra Kumar, Dinesh Kumar and Suresh Chandra have given evidence that they arrived at the scene of occurrence after the event. Narendra Kumar stated that he had come for lunch and that while he was still in the staircase, he heard Kanchan crying. He further stated that on going up stairs he had seen Kanchan bleeding she complained to him that Padam Chacha, meaning there by the appellant, had misbehaved with her by finger. It may be mentioned in this context that earlier in the F.I.R. Narendra Kumar had mentioned that his wife and mother were both present in his house and that they had ascertained from the child as to what had exactly happened with her. Narendra Kumar went back upon that statement in the trial and deposed that his wife and mother were not present there and that the statement to the contrary in the F.I.R. is not correct. 14. PW Dinesh Kumar stated that he went upstairs on hearing the shouts of Narendra Kumar. He further stated that he saw the appellant being held in custody by Narendra Kumar. 15. Suresh Chandra corroborated the evidence of Dinesh Kumar. 16. The only fact which is thus proved beyond reasonable doubt by the evidence on record is that Kanchan was heard crying by Narendra Kumar, that on going up-stairs Narendra Kumar found her bleeding from the vagina and that the child pointed to the appellant as the culprit, who had misbehaved with her. It is also established on record that the appellant was present there at that time. The medical evidence also corroborates that Kanchan was bleeding from the vagina, Rape or attempt to commit rape could possibly be proved in this case by the report of the Chemical Examiner regarding the urethral swab and smears of the appellant taken by Dr. Nama. The prosecution has not cared to prove that report in evidence. The medical evidence also corroborates that Kanchan was bleeding from the vagina, Rape or attempt to commit rape could possibly be proved in this case by the report of the Chemical Examiner regarding the urethral swab and smears of the appellant taken by Dr. Nama. The prosecution has not cared to prove that report in evidence. In the absence of such evidence the only crime which is shown to have been committed by the appellant is one punishable under section 354 I.P.C. 17. For all these reasons, I partly allow this appeal, set aside the order of conviction and sentence passed by the trial court under section 376 I. P. C. The appeal against the order of conviction and sentence under section 354 I. P. C. must fail and is hereby dismissed.