JUDGMENT Mandhata Singh, J.-Statement/fardbeyan (Ext.3) of Informant Ram Naresh Kumar, PW 11 has been made basis for the F.LR. which, in brief, is that on 24.6.2004 he was sleeping on a cot in front of his door where his minor daughter Soni Kumari aged about 9 years was also sleeping. He (informant) awoke feeling drops of rain and found his daughter missing. He called her by her name repeatedly as where she was. His wife came out from the house. She was asked whereabout of the victim but replied that she was not in-side the house. There was a search by family members to trace the victim through out the whole night but of no avail. Informant went to Rahimpur also but there was no trace of the victim. He came back his house and found his daughter surrounded by his family members. She (victim) was naked and blood was oozing from her private part. Victim was weeping and making complain of pain in her abdomen. His cousin Sudhir Kumar, PW 1 reported disclosure made by the victim girl that some persons took her (victim) to nearby Banana Orchard, removed her cloth (wearing apparels) and committed rape upon her. 2. The Informant and his family members went to the place of occurrence on the basis of the disclosure made by the victim girl where a red colour gamcha and wearing apparels of the victim were found laying. All the materials available there were brought to their house. Victim became unconscious, so was immediately removed to Sadar Hospital for treatment and statement was given there by the informant about commitment of rape by some unknown persons as reported by the victim girl. 3. In course of investigation, appellant's name surfaced. He was tried which ended in his conviction and sentence for the offence under Section 376 (2) (f) of the I.P.C. 4. In all 12 witnesses are examined in the case. They are PW 1 Sudhir Kumar Singh, cousin of the informant, PW 2 Laxmi Devi, mother of the informant, PW 3 Pradeep Chaudhary, brother of the informant, PW 4 Asha Devi, wife of the informant, PW 5 Umesh Prasad Chaudhary, informant's uncle. PW 6 Jai Prakash Chaudhary, seizure list witness, PW 7 Pritam Chaudhary, seizure list witness, PW 8 Dr. Malti Sinha, who has examined the victim, PW 9 Binoy Kumar Chaudhary, PW 10 Soni Kumari, victim of the case. PW 6 Jai Prakash Chaudhary, seizure list witness, PW 7 Pritam Chaudhary, seizure list witness, PW 8 Dr. Malti Sinha, who has examined the victim, PW 9 Binoy Kumar Chaudhary, PW 10 Soni Kumari, victim of the case. PW 11 Ram Naresh Kumar, informant of the case and PW 12 Abhay Kwnar Singh, I.O. of the case. 5. Victim's age has been said 9 years in the F.I.R. by the informant corroborated by several other witnesses also but PW 8 is stating about assessing her (victim's) age 11 years i.e. below 12 years, difference of this two years is of no relevance. 6. Blood was oozing from private part of the victim is mentioned rill the F.I.R. and corroborated by PWs 1, 2, 3, 4, 5, 10 and 11 is said coming due to commitment of rape. Same has been corroborated by PW 8, Doctor, who examined the victim girl. Commitment of rape is not doubted in the case rather identification is doubted only. On the point of identification, two versions (means) appeared in the case. They are first identification by the victim herself and her disclosure to others and second identification by a gamcha recovered from the place allegedly where rape was committed. 7. Apart from two categories of the witnesses, PW 9 is on the point that in the night of the incident before its commitment, he saw accused-appellant on a pullia. PWs 2 and 3 are stating about sitting of Sanjay at his door in the next morning of the incident after coming from Banana Orchard. PW 3 is claiming to watch him coming from Orchard. 8. On the point of identification, victim herself is stating that she was taken to Banana Orchard, in that course, she identified accused-appellant in the light of two trucks. PW 4, wife of the informant is stating disclosure by the victim about identification of this accused-appellant at the house before going to hospital. PWs 1, 2, 3, 4, 5 and 11, informant of the case are there to state that on disclosure of the victim, her wearing apparels and gamcha were recovered from the Banana Orchard where the victim was allegedly raped and in that continuation, they are stating that gamcha belonged to accused-appellant. 9. PWs 1, 2, 3, 4, 5 and 11, informant of the case are there to state that on disclosure of the victim, her wearing apparels and gamcha were recovered from the Banana Orchard where the victim was allegedly raped and in that continuation, they are stating that gamcha belonged to accused-appellant. 9. Disclosure of accused-appellant's name by the victim in her statement made to Investigating Officer or in Court is doubted on the ground that her statement was recorded in hospital and before her disclosure to the I.O., it was disclosed to PW 4, mother of the victim and PW 1 also remain present. It has appeared in the statement of witnesses including the victim that she became unconscious after some disclosure but PWs. 1, 2, 3, 4, 5 and 11 are constant on the point that on disclosure of the victim that she was raped in Banana Orchard, family members went there either alone or with victim and there was recovery of gamcha along with other articles. Specifically, it is stressed on behalf of the appellant that once gamcha was recovered before their proceeding to Sadar Hospital why this fact was not mentioned in the F.I.R. fardbeyan bears the signature of PW 1. PW 5 is also stating to go to Banana Orchard and to hospital also where statement of PW 11 was recorded for the F.I.R. Sitting of appellant on pulia in the night of incident or his coming to his house in morning is not making any time to complete any chain. They are added later also. 10. Apart from the other circumstance, recovery of gamcha and victim's wearing apparels is followed by an empty bottle of Mc. Dwell (liquor) and dhoti though is not of much importance as may lead to consent only, while the victim is below 12 years but the circumstance suggested and discussed above that appellant was not named in the F.I.R. even was told identified by the victim to witnesses or identification of recovered gamcha belonging to this accused-appellant doubts the credibility of the witnesses on the point of identification. 11. 11. According to the learned counsel for the appellant, circumstance was existing to implicate the appellant falsely in the incident as has appeared in para-10 of the statement of PW 10, victim of the case that two rivalry groups were running in the village, one leaded by this accused-appellant, though second group was headed by family members of the victim is missing but they were from the group of accused-appellant is also missing. Anyhow, this much is only an additional circumstance which is taken to doubt the credibility of the witnesses on the point of identification of the accused-appellant either by the victim herself or by his gamcha. This much of the aspect has not been looked into (considered) by the Trial Court while recording the conviction, so the same is not liable to sustain. 12. On the observations made above, evidence on record and circumstance of the case, this criminal appeal is allowed and the judgment of conviction dated 14.11.2008 and Order of sentence dated 18.11.2008 passed by the Addl. Sessions Judge, F.T.C. No. IV, Vaishali at Hajipur are set aside. Accordingly, accused-appellant is acquitted of the charges levelled against him. He (accused-appellant; Sanjai Kumar) is in custody is directed to be released at once, if not wanted in any other case. 13. Office is directed to send the records to the trial Court along with copy of this Judgment. Appeal allowed.