JUDGMENT G. S. N. Tripathi, J. 1. Accused Dhanraj, was convicted under Section 376, I.P.C. and sentenced to undergo six months' R.I. and to pay a fine of Rs. 600. Further he was convicted under Section 366, I.P.C. and sentenced to three months' R.I. Both the sentences were ordered to run concurrently. 2. According to the prosecution, as initiated at the behest of Bhaggu (P.W. 5) on 24.7.1974 at about 8 a.m. the accused Dhanraj committed a rape upon his grand-daughter Km. Kaushalya (P.W. 3), aged about eight years. On hearing her screams, the witnesses including the complainant, Smt. Kalawati (P.W. 2) mother of Km. Kaushalya and others rushed to the spot. They saw the accused committing rape upon the minor. After the arrival of the witnesses, the accused bolted away. There was blood mark on the Kachcha worn by the girl. In that very shape she was brought to the police station, where the first information report was lodged at about 3.15 p.m. after negotiating a distance of about 10 miles from the place of the incident. The girl was referred to the Women's Hospital, Azamgarh, where she was medically examined by the lady doctor on 25.7.74 at about 12.30 p.m. She collected the following evidence : Ht. 3' 51/2" Wt, 16 Kg Teeth 10/10. Hairs-Pubic :- No growth Breasts-Not developed Axillary-No growth. No mark of injury present in any part of body, p/v Vagina admits not even a tip of little finger, Hymen intact, tightly closed. No fresh injury present over private parts,. Vaginal smear sent for Histopathological Examination. I/M (1) One black mole present on back in lumber region. Advised X-ray (1) Rt. elbow Jt. (2) Rt. wrist Jt. Ref. to x-ray Department District Hospital." After usual investigation the charge-sheet was submitted. 3. The prosecution examined Smt. Kalawati (P.W. 2), the mother of the girl. She has deposed that after hearing the screams, she rushed to the spot where she saw Dhanraj committing rape upon her daughter. There was blood mark on the Kachcha of the girl. 4. (P.W. 5) Bhaggu is the grand-father and the complainant in this case. He has narrated the version as contained in the first information report. (P.W. 3) Km. Kaushalya is the victim. She has stated that the accused took her away to the place of occurrence by saying that he would be giving guava fruits to her. 4. (P.W. 5) Bhaggu is the grand-father and the complainant in this case. He has narrated the version as contained in the first information report. (P.W. 3) Km. Kaushalya is the victim. She has stated that the accused took her away to the place of occurrence by saying that he would be giving guava fruits to her. Thereupon he raped upon her. On her screams the witnesses arrived at the scene of occurrence. 5. (P.W. 1) Sita Ram and (P.W. 4) Ram Awadh have turned house. 6. (P.W. 6) Sarda Nand Misra, S.I. has proved the documents prepared at the police station as well as the documents prepared by him during the course of investigation. The lady doctor was not available. The medical report has been admitted by the learned counsel for the accused. 7. The accused in his statement under Section 313, Cr. P.C. has denied the allegations made against him and had added that on account of enmity he has been falsely implicated. About three or four days prior to the date of incident, the cattle heads of the complainant had been lodged in the cattle pond by the brother of the accused. 8. After examining the evidence on record. The learned Additional Sessions Judge held the accused guilty under Section 366 read with Section 376, I.P.C. and he convicted and sentenced him accordingly as noted above. Feeling aggrieved, the accused has preferred this appeal. I have heard the learned counsel for the parties at length. I find force in this appeal and it deserves to be allowed. There cannot be any doubt that if a rape has been committed on the minor Km. Kaushalya on the date of incident, the culprit must be punished. However, it is difficult to believe that a rape was committed on the girl in this case. Medical report clearly shows that the Hymen was totally intact it was tightly closed. No mark of injury was present in any part of the body. Therefore, the story that the accused committed rape is totally false. 9. It is not a case of prosecution that there was an attempt merely to commit the offence rather according to the prosecution the offence was complete, meaning thereby that the accused's penis had penetrated inside the organ of the girl. Therefore, the story that the accused committed rape is totally false. 9. It is not a case of prosecution that there was an attempt merely to commit the offence rather according to the prosecution the offence was complete, meaning thereby that the accused's penis had penetrated inside the organ of the girl. Smt. Kalawati (P.W. 2) has clearly stated that she saw with her own eyes the accused committing rape upon her daughter. She was lying down whereas the accused was riding on her. Blood was coming out of the vagina of the girl and the blood marks were vizible on her kachcha. At page 5 in para 6 she says that she was the first person, who reached the spot. In para 9 towards the ends she admits that there was blood mark on the cot upon which the alleged rape was committed. Km. Kaushalya (P.W. 3) states that the accused committed rape upon her by inserting his male organ in between the two thighs of hers. On feeling pain, she cried. There was blood mark on her private parts. Thus even according to her the offence of rape was complete, hence the prosecution cannot take shelter by saying that if the offence of rape is not established, it was taken to be atleast attempt to rape. 10. (P.W. 5) Bhaggu, the complainant, has also stated that they saw the accused committing rape upon the girl. According to the witnesses in fact complete rape was committed upon the girl which is proved to be false. Now coming to the appreciation of the evidence I find that the learned Sessions Judge has acquitted himself by simply saying that the lady doctor has not given a correct report. He has not relied the evidence of the doctor. He has not given any reason at to why he was disbelieving the medical report. It appears that the learned Additional Sessions Judge was moved by the view that it was alleged to be an offence committed upon a girl of about eight years. However, I think that the judgment should be based on the circumstances and evidence on the record and not on sentiments. The doctor was not declared hostile. 11. I find that the three witnesses examined by the prosecution are not stating the truth, therefore, all other arguments advanced by the learned counsel for the State do not stand to reason. However, I think that the judgment should be based on the circumstances and evidence on the record and not on sentiments. The doctor was not declared hostile. 11. I find that the three witnesses examined by the prosecution are not stating the truth, therefore, all other arguments advanced by the learned counsel for the State do not stand to reason. The learned Sessions Judge's approach and appreciation of evidence is not correct. The prosecution has miserably failed to prove the offence of rape and abduction, therefore the accused is entitled to acquittal. 12. The appeal is allowed. The judgment and order passed by the learned Additional Sessions Judge is set aside. The accused is on bail. He need not surrender. The ball bonds and surety bonds are discharged. Appeal allowed.