JUDGMENT 1. - The appellant has been convicted by the Additional Sessions Judge No. 1, Hanumangarh, by the judgment dated August I, 198?, for committing rape with Maina Devi, a girl of 8 years. 2. The prosecution case, in brief, was that Maina Devi was residing with her materal-uncle Hari Ram at village Kulchander. She was a student of IVth Class. The School where she was studying was at a distance of 2 K.M. from the dhani of Hari Ram. On the date of occurrence, i.e. March, 12, 1986, she was on her way to school. It was about 9 30 a.m. A `Khala lay on the way. As per the story of the girl, a boy was already there in that `khala When the girl was crossing the `Khala, that boy caught hold of her and forced her into the nearby Sarson- filed, threw her on the ground and committed rape with her. She cried but none came to her rescue He then left the place leaving her there. The girl returned to the dhani at 12 noon and narrated the incident to her maternal-uncle Hari Ram. Accompanied by the girl Hari Ram went to the police station Tibi, and lodged the First Information Report of the occurrence the same day at 5.30 p.m. In the report, neither the name nor any description of the name nor any description of the boy who committed the rape was mentioned. Rather it was stated that an un-known person had forcibly committed rape with Maina Devi. On this report a case under section 376, I.P.C. was registered and investigation started. Maina was medically examined on the same day at 5.45 p.m. The doctor opined that she was made a victim of rape. A site plan was drawn. No progress in the investigation was made till April 02, 1986 when the Station House Officer, arrested the accused. He was put for test-identification in a parade which was held on April 05, 1986. As per the prosecution he was correctly identified by Maina Devi. After completion of investigation, the police submitted a charge- sheet in the Court of Judicial Magistrate, First Class No. 1, Hanumangarh, who committed him to the Court of Sessions for trial. There accused was charged under section 376, I.P.C. His plea was recorded in which he pleaded not guilty and claimed to be tried. 3. After completion of investigation, the police submitted a charge- sheet in the Court of Judicial Magistrate, First Class No. 1, Hanumangarh, who committed him to the Court of Sessions for trial. There accused was charged under section 376, I.P.C. His plea was recorded in which he pleaded not guilty and claimed to be tried. 3. The prosecution examined as many as 10 witnesses. PW1 Dr. Devi Lal has proved the condition of the girl after the incident. He has proved that rape was committed upon her. PW2, Maina Devi, is the victim herself. PW3, Hari Ram, maternal-uncle of the girl has proved the First Information Report lodged by him. PW 4 Om Prakash and PW 6, Abhey Pal are material witnesses to the prosecution. They have deposed that the accused had made an extrajudicial confession before them of having committed rape with the girl. PW 5, Ladhu Ram, PW 8 Jeetram and PW 9, Mohd. Idrish are formal witnesses. PW 7 Abdul Aziz was the Station House Officer who investigated the case. PW 10 Shri Kailash Meena Magistrate, conducted the test identification parade. The accused, in his statement recorded under section 313, Cr. P.C. denied the prosecution allegations and has said that he had been implicated falsely. No witness examined in defence 4. After trial, the learned Additional Sessions Judge No. 1, Hanumangarh has convicted and sentenced the appellant for the offence under section 376 IPC to 7 years R. I and a fine of Rs. 100/- and in default of payment of fine to one months simple imprisonment. The Sessions Judge has held that rape was committed upon Maina Devi. The learned Judge did not place reliance on the identification made by Maina Devi as the accused had already been shown to her while he was in police custody. The learned Session Judge, however, placed reliance on the statements of Om Prakash and Abhey Pal who stated that the accused had admitted before them that he had committed rape upon Maina Devi. Observing that these witnesses corroborated each other and were also supported by the identification made by Maina Devi in court. The learned Session Judge, however, placed reliance on the statements of Om Prakash and Abhey Pal who stated that the accused had admitted before them that he had committed rape upon Maina Devi. Observing that these witnesses corroborated each other and were also supported by the identification made by Maina Devi in court. The learned Sessions Judge held that the prosecution had succeeded in proving the fact that rape was committed with Maina Devi by the accused Aggrieved by the order of conviction and sentence passed by the learned Sessions Judge, the appellant has filed i: present appeal in this Court. 5. I have heard Shri M.K. Garg, counsel for the accused-appellant, the Public Prosecutor for the state and Shri H.S. Sandhu for the complainant. 6. There is no doubt that Maina Devi, a girl of 8 years was the victim of rape. Dr. Devi Lal, who examined her the same day after the occurrence has given a categorical opinion that rape was committed with Maina Devi, The learned Sessions Judge has found it as a fact and I do not find any reason to disturb the finding recorded by the learned Sessions Judge. The question for consideration, however, is whether the prosecution has proved the case against the accused that it was he who committed rape upon Maina Devi. The name of the accused was not mentioned in the First Information Report. He was not previously known to Maina Devi. The prosecution case against him rests on his identification by Maina Devi and the extra-judicial confession alleged to have been made by him before Omprakash and Abhey Pal. I first take up the evidence of Maina Devi. She was a girl of 8 years. She did not know the accused from before. The name of the accused did not appear during investigation till April 2, 1986. Maina Dexi admitted in cross-examination that the accused had been shown to her at the police station and she was told that that was the person who had committed rape with her. The police had also asked her to identify the accused in Jal and on this she identified him there. When they had gone for the purpose of identifying the accused in Jal, the police and her maternal-uncle also accompanied her. The police had also asked her to identify the accused in Jal and on this she identified him there. When they had gone for the purpose of identifying the accused in Jal, the police and her maternal-uncle also accompanied her. They had told her that the accused was having short mustache and was of this feature and that she should identify her Not only this, even Hari Ram, her maternal-uncle, has made a similar statement. He too admitted in cross-examination that the accused was not shown to him in police but that he had been shown to Maina Devi inside the police station. The learned Sessions Judge was, therefore, right in holding that as the accused had already been shown to Maina Devi while in police custody the identification made by her in the test identification parade was useless. Naturally, therefore, his identification by Maina Devi, in court, without the support by an earlier identification in the test identification parade, cannot be safely acted upon. 7. The prosecution is therefore, left with the evidence of extra-judicial confession, alleged to have been made by the accused before Om Prakash and Abhey Pal Om Prakash has stated that it was on April 2, 1986, that the accused came to him and stated that he had committed sexual after-course with Maina Devi. The witness admitted in cross-examination that he did not go and narrate this fact to the police. The witness has also admitted that he did not tell about this fact to anyone According to him the investigating officer of his own came to him. He stated this fact to the police on April 2, i986, but his statement was recorded on the next day. The same is the position with regard to Abhey Pal. He too was examined by the police for the first time on April 3, 1986. His statement was also to the affect that the accused admitted before him that he had committed rape upon Maina Devi about 20 day? ago. That shows the accused came to him the very day i.e. 2nd April. 1986 only on the date of his arrest and not earlier. In cross-examination, the witness has admitted that he did not narrate this fact to any one during the It was 8 p.m. in the night that he told about this to Jaimal and Kansi Ram. Obliviously, neither of them have been examined. 1986 only on the date of his arrest and not earlier. In cross-examination, the witness has admitted that he did not narrate this fact to any one during the It was 8 p.m. in the night that he told about this to Jaimal and Kansi Ram. Obliviously, neither of them have been examined. The witness did not go to the police but the investigating officer of his own accord came to him. He has also admitted that accused and he were not closely known to each other. The evidence of these witnesses show that although the occurrence bad taken place as back as March 12, 1986, the accused of his own cause to them on April 2, 1986, just to make the extrajudicial confession and the very day he was arrested. Could be a sheer coincidence When the accused remained undetected for 20 days, what was it which prompted him to go and confess his guilt to these witnesses. There was neither reason nor any occasion for the accused to go to them and make the admissions Shri Abdul Aziz, who was investigating the case has admitted in cross-examination that the accused was named only a couple of days prior to his arrest- He further deposed that none had named the accused before his arrest. The prosecution has not led any satisfactory explanation as to why the accused was at all arrested. The evidence of Om Prakash and Abhey Pal seems to be too artificial and un-natural It is difficult to place reliance on their testimony. It does not inspire confidence Apart from this, there is no other evidence to connect the accused with the crime True, rape was committed upon a girl of 8 years. The crime was quite henious But the evidence against the accused is not at all sufficient to hold him guilty. It falls short of proof to hold him guilty. It would be unsafe to convict a man of the offence of rape on the nature and strength of evidence as has been adduced by the prosecution in this case. The accused, therefore, deserves to be acquitted for want of proof. 8. It falls short of proof to hold him guilty. It would be unsafe to convict a man of the offence of rape on the nature and strength of evidence as has been adduced by the prosecution in this case. The accused, therefore, deserves to be acquitted for want of proof. 8. In the result, the appeal is allowed, the order of conviction and sentence passed against the accused by the learned Sessions Judge No. 1, Hanumangarh, is set aside and he is acquitted of the charge under section 376 I.P.C. The accused is in Jail. He shall be set at liberty forthwith, if not required in any other case.Appeal allowed. *******