JUDGMENT 1. -The appellant is challenging in this appeal his conviction by the learned Sessions Judge Dausa under section 376 of the Indian Penal Code. He was tried by the said Court in Sessions Case No. 11/1995 for committing rape on Naseem, a girl of about 12 years of age and was sentenced to ten years rigorous imprisonment and a fine of Rs. 2,000/- in default to further undergo six months rigorous imprisonment. 2. Brief resume of the facts is that Deen Mohd., the uncle of Prosecutrix Naseem instituted written FIR on 13.4.1995 with the Police Station Salempur that his daughter Naseem was taken by the appellant, a neighbour to his house and there he committed rape on her. A case under section 376 IPC was registered and investigation commenced. Naseem was examiyed by the Department of Radiology General Hospital Karauli and it was opined that her age was between 10-12 years. Her Medical Examination report revealed thus- "Bleeding from Vagina present profusely. Hymen torn-bleeding present. In Vagina lacerated wound I 3/4cm. x J cm x 1 cm present on posterior commissure. No whitish seminal stain present on thigh and on genital." After his arrest the appellant was also medically examined on April 21, 1995. His medical examination report reads as under:- "Age 22 years. Development of Genital organ. No marks of struggle found on body. No scratches or lacerate on the penis. From examination nothing to suggest that the male examined is not capable of sexual intercourse." 3. After completion of investigation charge-sheet was laid and the case was committed to the Court of Sessions. Charge under section 376 IPC was framed. The appellant denied the charge and claimed trial. The prosecution examined as many as 12 witnesses. In his statement under section 313 Cr.P.C. the appellant stated that he was falsely implicated on account of enmity. Two defence witnesses were produce by the appellant. The learned trial Court after hearing the arguments convicted and sentenced the appellant as indicated here in above. 4. Mr. A.K. Gupta, learned counsel appearing for the appellant criticised the impugned judgment and canvassed that the prosecutrix sustained injury on her vagina by thorn while attending the call of nature in the jungle. The FIR was not forthwith and the case against the appellant was cooked up. 4. Mr. A.K. Gupta, learned counsel appearing for the appellant criticised the impugned judgment and canvassed that the prosecutrix sustained injury on her vagina by thorn while attending the call of nature in the jungle. The FIR was not forthwith and the case against the appellant was cooked up. It has been established from the record that when Banno the mother of the prosecutrix asked the prosecutrix as to why her salwar was stained with blood, the prosecutrix replied that she sustained injury by thorn in jungle. Thereafter she was taken to Asha Devi and Compounder Ram Charan for treatment where compounder Ramcharan allegedly suggested that she was raped and then prosecutrix revealed that she was sexually assaulted by the appellant. It-is contended by the learned counsel that witnesses Asha Devi and Ram Charan did not support the prosecution story. Mr. Gupta, learned counsel further submitted that as no injury on penis of appellant was found, he was entitled to benefit of doubt in view of decision of Apex Court in Rahim Beg v. State of U.P., AIR 1973 SC 343 . 5. On the other and, learned Public Prosecutors Mr. S.M. Poddar and Mr. C.D. Parwal, supported the impugned judgment and contended that guilt against the appellant has been proved beyond reasonable doubt and he was rightly convicted. Reliance was place on Naganm Gangadhar v. State, 1988 Cr.L.J. 2200. 6. I have reflected over the rival submissions and carefully scanned the material on record and case law cited before me. 7. In the light of arguments advanced before me, I proceed to examine the prosecution evidence. Naseem PW I, prosecutrix was a minor child at the time of her examination. The learned Sessions Judge asked her a question:- " >wB cksyus ls D;k gksrk gSA dqN ugha gksrkA " to which she replied" She was examined by the learned Sessions Judge on August 16, 1995 after about four months of occurrence. In her examination in chief she stated:- " tc eSaus esjh vEek ds iwNus ij dgk fd esjs dkaVk yxus ls [kwu vk;k gS rc esjs pkpk us esjh vEek dks dgk fd blds nok yxok ykvksA fQj esjh vEek o vk'kk nsoh eq>s jkepj.k dEikmaMj ds ;gka ys x;sA " In her examination in chief she also stated that she was taken by the appellant to his house where he placed his male organ into her vagina. She was cross examined at length by the learned counsel for the appellant. In her cross examination she stated that she neither saw the male organ nor any whitish material. She also admitted that the appellant was a married person. She made certain improvements in her statement and she was contradicted with her earlier statement recorded under section 161 Cr.P.C. Banno, PW 2, mother of the prosecutrix deposed in her examination in chief:- " ulhe jks jgh Fkh rFkk [kwu ls ulhe dh lyokj Hkht jgh FkhA ulhe ls tc [kwu fudyus ds ckcr iwNk rks mlus crk;k fd tc eSa fuiVus xbZ rFkk dkaVk yxk x;kA " She further deposed : " esjs lkFk ulhe dks ysdj jkepj.k] dEikm.Mj ds ;gka xbZA jkepj.k dEikm.Mj us ulhe dh pksV dks ns[kdj dgk fd blds dkaVk ugha yxk gS bldh rks bTtr fcxkM+h gS] v'kksd ukbZ usA fQj dgk fd mlus v'kksd ukbZ dk uke ugha fy;kA " Asha Devi PW 3 did not support the prosecution case and deposed thus:- " rhu pkj eghus igys ulhe dh eka us eq>s vius ?kj cqyk;k Fkk rFkk eq>s dgk fd esjh yM+dh ulhe ds dkaVk yx x;k gSA blds nokbZ yxk nksA " Ramcharan PW 4 Compounder also did not support the prosecution and he was declared hostile. He deposed in his examination in chief:- " cPph dh eka o ,d vkSjr cPph dks ysdj esjs ikl vkbZA mUgksaus dgk fd cPph ds 'kjhj esa dkaVk yx x;k gS vkSj mlesa ls [kwu vk jgk gSA eSa 'kjhj ds uke ls le> ugha ldk rks eSaus iwNk 'kjhj esa dkSu lh txg dkaVk yxk gS rc os yksx cksys fd is'kkc dh txg dkaVk yxk gSA esjs iwNus ij mUgksaus crk;k fd igkM+ ij VV~Vh djus xbZ Fkh rc blds bl txg ij dkaVk yx x;kA " Balbir Singh, PW 5 is the signatory of its plan. PW. 6 Deen Mohammed is the uncle of the prosecutrix. He lodged the FIR and deposed that prosecutrix Naseem was raped by the appellant. He stated that Naseem was threatened by the appellant but he could not reveal this fact in the FIR as he was disturbed. PW. 6 Deen Mohammed is the uncle of the prosecutrix. He lodged the FIR and deposed that prosecutrix Naseem was raped by the appellant. He stated that Naseem was threatened by the appellant but he could not reveal this fact in the FIR as he was disturbed. In his cross examination he deposed:- " gekjs ?kj ds vkneh vkSjr cPps igkM+ esa Hkh fuiVus pys tkrs gS rFkk [kqys esa Hkh pys tkrs gSaA " PW 7 Iddukhan is the signatory of seizure memo but he was declared hostile. Dr. Jagmohan Goyal PW. 8 conducted the medical examination of prosecutrix Naseem as well as of the appellant. In his examination in chief Dr. Jagmohan Goyal deposed:- " dqekjh ulhe ds xqIrkax ij ikbZ xbZ pksV fdlh CyaV vkCtsDV ls vk ldrh gS rFkk isful ds izs'kj ls izos'k djokus ls Hkh mDr pksV vk ldrh gSA " In his cross examination Dr. 8 conducted the medical examination of prosecutrix Naseem as well as of the appellant. In his examination in chief Dr. Jagmohan Goyal deposed:- " dqekjh ulhe ds xqIrkax ij ikbZ xbZ pksV fdlh CyaV vkCtsDV ls vk ldrh gS rFkk isful ds izs'kj ls izos'k djokus ls Hkh mDr pksV vk ldrh gSA " In his cross examination Dr. Jagmohan Goyal Stated:- " vfHk;qDr v'kksd ds isful ds ijh{k.k ij eSaus ml txg dksbZ czwt ysfljs'ku] Ldszpt ds fu'kku ugha ik;sA czwt] Ldszpst] ysfljs'ku ds fpUg djhc pkSng fnu rd jgrs gSA v'kksd ds tsusVy ikVZl Moyi FksA ;fn vfHk;qDr v'kksd dqekjh ulhe ds lkFk tcju laHkksx djrk rks mlds Ldzspst ds fu'kkuk vkuk T;knk laHko FksA " He further deposed:- " eSaus ijh{k.k esa ulhe ds tka?kksa] dqYgksa] ihB vkSj psgjs ij dksbZ pksV ds fu'kkukr ugha ik;sA eSaus ijh{k.k esa v'kksd ds Hkh dksbZ czwt] ysfljs'ku ;k [kjksap ds fu'kku ?kqVuksa ij ugha ik;sA rqMs ij tcju laHkksx ds lkFk cykRlax gksus dh fLFkfr esa mlds 'kjhj ds fiNys fgLls ij [kjksap ds fu'kku gksus dh laHkkouk T;knk FkhA ,slh fLFkfr esa yM+ds ds Hkh ?kqVuksa ij rwMs ls [kjksapuqek fu'kkukr vkuk laHkfor FkkA ulhe ds ijh{k.k ij mlds xqIrkaxksa ds vkl ikl dksbZ Hkh I;wfcd gs;j ;k vU; gksbZ ckgjh rRo fn[kkbZ ugha fn;kA dqekjh ulhe ds lkFk tcju cykRlax gksus dh lwjr esa mlds xqIrkaxksa ds ckgjh fgLls ij lwtu] yykbZ bR;kfn dh laHkkouk gksrh Fkh ysfdu ,slh dksbZ pht ijh{k.k ij ugha ikbZ xhA Lo;a dgk ostkbuy ds fupyk fgLlk vko'; dVk gqvk FkkA lkekU;r;k isful dh yEckbZ N% ls vkB bap dh gksrh gSA tks bjsDV iksth'ku esa gksrh gSA ;fn isful dk iwjk isfuVsZ'ku gksrk rks ftruk ostkbuy Vh;j gqvk gS mlls T;knk gksus dh laHkkouk FkhA ;g phV ulhe ds vkbZ gS og iRFkj ls Hkh vk ldrh gSA " Sattar, PW 9 is the father of the prosecutrix. He deposed that the appellant had committed rape on her daughter Naseem. In his cross examination he stated:- " [ksr esa vkdj ulhe us jksrs gq, ;gh crk;k Fkk fd og gekjs ckM+s esa VV~Vh djus x;h Fkh tgka mlds dkaVk yx x;kA " Sameer Khan, PW 10, is the signatory of the site plan and seizure memo of under wear of the appellant. PW 11. Dr. In his cross examination he stated:- " [ksr esa vkdj ulhe us jksrs gq, ;gh crk;k Fkk fd og gekjs ckM+s esa VV~Vh djus x;h Fkh tgka mlds dkaVk yx x;kA " Sameer Khan, PW 10, is the signatory of the site plan and seizure memo of under wear of the appellant. PW 11. Dr. Ashok Kumar Jain is the Radiologist who opined that the prosecutrix Naseem was 10 to 12 years of age. PW 12 Prabhulal is the investigating officer, who submitted charge sheet in the case. 8. Section 118 of the Evidence Act lays down a general rule that every person, irrespective of his age, is competent to testify unless he is found incompetent due to the reasons mentioned therein. Section 118 makes the 'understanding' as the sole test of competency of a witness. Therefore, the competency of child to give evidence depends not on his age but the degree of his understanding. 9. In the instant case when p .osecutrix Naseem was asked by the learned Sessions Judge as to what happens when ape ion tells lie. She replied "nothing happens". This goes to show that understanding of proseutrix Naseem was not matured and she could be tutored. From the statement of Naseem it i evident that initially she told her mother Banno PW 2 also deposed that Naseem inform, her that she sustained injury by thorn while attending the call of nature. She further deposed that Ramcharan Compounder after seeing the injury on the vagina of Naseem intimated her that Naseem was subjected to rape. But Ramcharan Compounder PW 4 did not corroborate the statement of Banno. Ramcharan Compounder stated that he was informed that the girls sustained injury by thorn while she had gone to thecall of nature. After examining her injury he informed her mother that the injury sustained by Naseem could have been caused by a stone. The girl though informed him that she sustained injury by thorn. Asha Devi PW 7 also did not support the version of prosecution and she stated that the mother of Naseem informed her that Naseem sustained injury by thorn. Dr. The girl though informed him that she sustained injury by thorn. Asha Devi PW 7 also did not support the version of prosecution and she stated that the mother of Naseem informed her that Naseem sustained injury by thorn. Dr. Jagmohan Goyal, Medico-legal Officer PW 8 categorically stated that he did not find bruise, laceration or scratches on the penis of Ashok and if act of sexual assault was committed by him there was possibility that he could have sustained bruise, laceration or scratches on his penis. A complete look at the statement of Dr. Jagmohan Goyal demonstrates that Naseem was not subjected intercourse in the circumstances as revealed by the prosecution. 10. In Rahim Beg. v. State of U.P., AIR 1973 SC 343 , their Lordships of the Supreme Court in para 26 of the judgment propounded thus : "According to Dr. Katiyar, Medical Officer of District Jail Rae Bareli, if a girl of 10 or 12 years who is virgin and whose hymen is intact is subject to rape by a fully developed man,_there are likely to be injuries on the male organ of the man. No injury was however, detected by the doctor on the male organ of any of the two accused. The absence of such injuries on the male organs of the accused would thus point to their innocence." 11. The appellant is a fully developed man and absence of injury on his male organ creates doubt in the prosecution version. 12. Mr. S.M.Poddar, placed reliance on Nagam Gangadhar v. State (supra) but this case is distinguishable. In the said case the prosecutrix appeared to have communicated to her parents that the accused has committed an act due to which she was getting pain in her private parts. Her father and neighbour have sown to the fact that the victim disclosed the said act. There was bleeding in the private parts of the victim. The doctor found the injury on her private parts suggesting sexual assault. There was a cut in the tip of the penis of the accused which was possible due to forcible intercourse with the virgin. But in the instant there is no injury on the penis of the appellant, though the allegation him was that he had committed forcible intercourse with the Naseem. 13. Following infirmities are found in the prosecution case. There was a cut in the tip of the penis of the accused which was possible due to forcible intercourse with the virgin. But in the instant there is no injury on the penis of the appellant, though the allegation him was that he had committed forcible intercourse with the Naseem. 13. Following infirmities are found in the prosecution case. (i) No injury was found on the penis of the appellant, though allegation against him was that he had committed forcible sexual intercourse with the virgin Naseem aged about 10 to 12 years. (ii) According to the prosecution case, the prosecutrix was raped on 'tuda' but no injury was found on her back. (iii) No injury was found on the knees of the appellant, though it ought to have been caused, according to Dr. Jagmohan Goyal. (iv) The prosecutrix was not of matured understanding at the time of her examination before the learned Sessions Judge. She did not know the result of telling lie. The prosecutrix stated in her examination in chief that she told her mother that she sustained injury by thorn. Her mother Banno PW 3 also deposed that the prosecutrix Naseem informed her that she sustained injury by thorn while she was attending the call of the nature. Statement of Banno was not corroborated by Asha Devi and Ramcharan and they were declared hostile. (v) Vaginal swab of the prosecutrix was sent to FSL but the report was not placed on record. (vi) No semen was found on the underwear of the appellant as well as on the person of the prosecutrix Naseem. (vii) br. Jagmohan Goyal, in his cross examination stated that the injury sustained by Naseem could have been caused by stone. 14. All these infirmities go to show that the prosecution has failed to establish the guilt against the accused appellant beyond reasonable doubt. Looking to these facts and circumstance, I am of the opinion that there are number of circumstances which create considerable doubt regarding complicity of the accused appellant and the accused appellant must necessarily has the benefit thereof. 15. I accordingly, accept this appeal and set aside the judgment of conviction and sentence awarded by the learned Sessions Judge and the accused appellant shall stand acquitted from the charge under section 376 IPC. He is in judicial custody. He shall be released forthwith if not required in any other case. 15. I accordingly, accept this appeal and set aside the judgment of conviction and sentence awarded by the learned Sessions Judge and the accused appellant shall stand acquitted from the charge under section 376 IPC. He is in judicial custody. He shall be released forthwith if not required in any other case. The record of the case be sent back.Appeal allowed. *******