JUDGMENT Hon’ble Barkat Ali Zaidi, J.—Appellant-accused Kallu alias Rajnath Yadav, aged about 25 years was tried on a charge under Section 376/511 and 506 Indian Penal Code, in S.T. No. 412 of 2002, and Additional Sessions Judge, Fast Track Court No. 20, Allahabad, by judgment and order dated 4.5.2006 held him guilty under Section 376/511, I.P.C. and punished him with 5 years R.I. plus fine Rs. 1,000/-. 2. According to the prosecution version, on 15.5.2002 around 12 O’clock, in the noon the daughter of informant father, Km. Kanchan aged 3 years, was playing in front of the house of informant, Girdhari Lal P.W. 1 in village Sultanpur Khas, P.S. Mau Aima, District Allahabad. It is alleged that the accused-appellant, who resides nearby, came to her and carried her to his house and tried to outrage her modesty. The cries and screams of the girl attracted the informant and his grand mother Janki Devi to the place of occurrence, where they found Km. Kanchan Iying unconscious. The accused Kallu threatened the informant and Janki Devi that in case they informed about it to any one or the police, they will be killed. The informant went to the police station Mau Aima, District Allahabad and lodged first information report (Ex. K-1) of the incident, the same day at 3.45 in the noon. 3. On basis of this report, the police registered Case Crime No. 110 of 2000 under Sections 376/511 and 506, I.P.C. against the accused by preparing chick F.I.R. (Ex. K-8), the investigation of which was assigned to P.W. 7 S.I. Sri Hardev Narain Singh. The investigating officer, thereafter seized semen stained Chaddi from person of Km. Kanchan vide seizure memo (Ex. K-6) and referred the girl for her medical examination to Dufrin Hospital, Allahabad. P.W. 4 Dr. Pratima Gupta examined the girl, the same day at 11.00 O’clock in the night and vide her report (Ex. K-2) found no mark of injury on any part of her body and no bleeding or bruises on her person. She also found her hymen intact. A vaginal stick of the secretions found over her hymen, was prepared and sent to pathologist for examination. Dr. Pratima advised X-ray of the girl for determination of her age. The X-ray of the girl for determination of her age. The X-ray of the girl revealed that she was about 4 years old. The Pathologist, P.W. 8 Dr. A vaginal stick of the secretions found over her hymen, was prepared and sent to pathologist for examination. Dr. Pratima advised X-ray of the girl for determination of her age. The X-ray of the girl for determination of her age. The X-ray of the girl revealed that she was about 4 years old. The Pathologist, P.W. 8 Dr. V.K. Gupta on examination of the stick, vide report (Ex. K-7) found no signs of spermatozoa. The Seriologist on examination of her underwear also found no stains of semen on it. P.W. 4 Dr. Pratima vide supplementary report (Ex. K-3) opined that no definite opinion regarding rape can be given. 4. The investigation officer went to the place of occurrence, prepared the site plan (Ex. K-5) recorded the statement of the witnesses under Section 161 Cr.P.C. but he could not continue the investigation and the investigation was completed by S.O. Vindyachal Shukla, who has been examined as P.W. 4 and who submitted charge-sheet (Ex. K-4) under Sections 376/511 read with Section 506, I.P.C. against the accused. 5. To prove its case, the prosecution examined father of the girl informant P.W. 1 Giridhari Lal Gupta, his father P.W. 2 Jagannath, prosecutrix P.W. 3 Km. Kanchan P.W. 4 Dr. Pratima Gupta, P.W. 5 Sri Vindhyachal Shukla, investigation officer P.W. 6 Radiologist Dr. V.K. Sahu, investigating officer P.W. 7 Hardev Narain, Pathologist P.W. 8 Dr. V.K. Gupta P.W. 9 H.M. Sukhram Singh. 6. In his statement under Section 313 Cr.P.C., the case of the accused is of plain and simple denial. He pleaded that the informant had purchased some land from one Dev Narain Mishra, which was in possession of the accused. The informant wanted to take the possession of the land, which the accused declined and, therefore, to coerce him into submission, the informant had falsely implicated him in this case. 7. Trial Judge found the evidence of the prosecution worth reliance and convicted the accused as noted above. 8. The accused appeals. 9. Heard Sri P.N. Mishra, Senior Advocate, assisted by Sri Apul Mishra, Advocate for the appellant and Sri Surendra Singh-II, Addl. Government Advocate for the State. 10. It must be stated at the outset that it is a very surprising conviction. The Judge has gone overboard in recording the conviction. 11. 8. The accused appeals. 9. Heard Sri P.N. Mishra, Senior Advocate, assisted by Sri Apul Mishra, Advocate for the appellant and Sri Surendra Singh-II, Addl. Government Advocate for the State. 10. It must be stated at the outset that it is a very surprising conviction. The Judge has gone overboard in recording the conviction. 11. Since there was no mark of injury whatsoever, on the body of the girl, there was obviously no evidence of rape and attempt to rape, has only been gathered only on the basis of overt action of the accused. If the accused had really intended rape, there would have been no hitch, in the circumstances, in the accomplishment of his objective. The very fact that he did not do so, goes to show, that, he never intended doing it. 12. The Trial Court has based the conviction primarily on the testimony of the prosecutrix, because she was the lone witness, who could depose as to what the accused had done to her. According to her father P.W. 1, Prosecutrix was 3 years old at the time of occurrence and according medical report (Ex. K-4), she was about 4 year old then. The occurrence took place on 15.5.2000 and the statement of prosecutrix P.W. 2 was recorded on 23.4.2005 as such there was a gap of such 5 years in between the two. It is difficult to comprehend that a girl of 3-4 years will be able to recapitulate the happenings 5 years thereafter. It is obvious that she has been made to say, what she is saying, and her testimony is wholly tutored. The Trial Court should not have placed reliance on the testimony of such a small child, given after 5 years of the occurrence. It may also be noted, that no spermatozoa were found in the vaginal smear, and no mark of semen were found on the under wear of the prosecutrix, which further falsify the charge of attempt to commit rape. 13. It may also be noted, that no spermatozoa were found in the vaginal smear, and no mark of semen were found on the under wear of the prosecutrix, which further falsify the charge of attempt to commit rape. 13. The evidence of the father P.W. 1 Girdhari Lal Gupta and also that of his father P.W. 2 Jagannath seems, in the circumstances, motivated, by personal ill-will against the accused, and the suggestion from the side of the accused is that P.W. 1 wanted to purchase a field of land, which was in possession of the accused and the accused was not prepared to part with the same and that is why, he has been falsely implicated in this case. P.W. 3 prosecutrix in her cross-examination has, herself admitted the fact of litigation, on the issue of land between her father and the accused. 14. In these circumstances, the charge against the accused is wholly unfounded and the appeal is, therefore, allowed and the conviction of the accused-appellant is set aside. ————