Decided on April 17,1967

VIJAIRAM Respondents


- (1.) THIS is an appeal by the State from the judgment dated 30th March, 1963 of the Sessions Judge, Partabgarh, acquitting Vijairam accused-respondent of the offence under Section 376/511 I. P. C.
(2.) BRIEFLY, the case for the prosecution is that on 6th November, 1962, at about 4-00 P. M. Vijairam respondent, resident of Khariakheri, met Mst. Shyam Kanwer (P. W. 4), a minor girl, aged about 11 years, of the same village, in the bed of the 'nallah' flowing on the outskirts of that village and attempted to commit rape on her. A report of the incident was made by Arjunsigh, father of the said girl, who was posted as a constable at Police Station, Deogarh, on 8th November, 1962, at 3-30 P. M. On the date of occurrence, Arjunsingh was at Police Station Deogarh and his elder son Bheronsingh and his wife had gone from village Khariakheri to Partabgarh to make purchases leaving Smt. Shyam Kanwer and her younger brother Amar Singh in the village. When Bheronsingh returned to the village, he was informed by Smt. Shyam Kanwer that she and Amarsingh had gone to graze the bullocks near the field of Arjunsingh, when Vijairam came there and took the girl to the 'khal' and there felled her on the ground and then attempted to commit rape on her. Bheron Singh went to his father Arjunsingh on 7th November, 1962, at Police Station Deogarh and informed him of the occurrence. Arjunsingh went to his village to make enquiries from Smt. Shyam Kanwer and then submitted a written report to the Station House Officer, Partabgarh, who had reached village Khariakheri on 8th November, 1962. Smt. Shyam Kanwer was examined by Dr. I. P. Agarwal on 9th November. 1962, but the doctor found no mark of injury, or blood or seminal stains on the external genitals or the thighs of the girl. The hymen was found intact. The accused was also examined by the said doctor. He appeared to be a young man of 25 years, capable" of having sexual intercourse.
(3.) THE accused was arrested and challaned before the Magistrate First Class, Partabgarh, and was committed to the Court of the Sessions Judge, Partabgarh, for trial under Section 376/511 I. P. C. The accused pleaded not guilty and stated that he had been falsely implicated on account of enmity. He produced Chhagan (D. W. 1) in his defence. The learned Sessions Judge took the view that if the statement of Smt. Shyam Kanwer was to be believed, the accused was guilty of an offence under Section 376/511 I. P. C. , but he refused to act on her statement as he found inconsistencies in the statements of Smt. Shyam Kanwer and her brother Amar Singh. The prosecution also examined Bheronlal (P. W. 6) who turned hostile and did not support the prosecution case. Taking this view of the evidence, the learned Sessions Judge acquitted the accused.;

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