S.J. Hyder, J. - (1.) JAN Mohammad son of Asgar was tried for the offence punishable under Sec. 376 IPC in the court of the Assistant Sessions Judge, Meerut. The trial commenced before Sri S. P. Agrawal who then held the office of the Assistant Sessions Judge, Ghaziabad. Sri S P. Agrawal recorded the statements of some of the prosecution witnesses. He was, however, transferred before the trial could conclude and was succeeded in the office by Sri O. P. Jain. A de novo trial was held by Sri O. P. Jain, Assistant Sessions Judge, Ghaziabad. After recording the evidence and after bearing the parties, the Assistant Sessions Judge came to the conclusion that the prosecution had failed to establish its case against the respondent beyond reasonable doubt. He accordingly recorded an order of acquittal in favour of the respondent on 4-7-1975 and the State feels itself aggrieved by the said judgment and order. It has accordingly preferred this appeal under Sec. 378 CrPC.
(2.) THE incident giving rise to this appeal took place on February 15, 1974 at village Dehra, P. S. Masoori, district Meerut at about 5 P. M. Briefly stated, the prosecution case is that Km. Mobim aged about 8 years was looking after the barley fields of his father Bhola. THE respondent Jan Mohammad reached the place and after lifting Km. Mobin he forcibly took her to the wheat field of one Tausif. He removed the Shalwar of Km. Mobin and committed rape on the minor girl. On penetration, the girl screamed and the shouts raised by her attracted Mohd. Ali, Ahmad Ali and Kasim, who were working in the fields nearby. THEy immediately rushed towards the place of the occurrence and found that the respondent was covering Km. Mobin and was committing rape on her. On the arrival of these persons, the respondent picked up his Lungi and took to his heels. THE witness named above chased the respondent but could not succeed in apprehending him. THEy found Km. Mobin lying in an unconscious state. THEy took her to her house where the mother of Km. Mobin, namely, Smt. Khanam, was present. THEy narrated the incident to her. Bhola, father of Km. Mobin, was not. present in the village and had gone to village Chandrapur where his son-in-law lived. Irshad, who is a cousin of Mobin, was despatched to village Chandrapur to inform Bhola about the occurrence. Bhola arrived at village Dehra on the next morning and he was apprised as to what had happened tec Km. Mobin. He made enquiries from Mohammad Ali, Kasim and others. THEreafter Bhola accompanied by Km. Mobin, Smt. Khanam, Altaf and Shamshu went to police station Mosoori and lodged a first information report of the incident on 16-2-74 at 10 A. M. THE distance of the police station from village Dehra is four miles. THE bloodstained Shalwar and Orhni of Km. Mobin was also handed over to the police by Bhola. The investigation of the case was taken up by S. I. Ram Saran Lal (PW 9). He sent Km. Mobin for medical examination to the Hospital at Ghaziabad. Km. Mobin was also X-rayed with a view to determine her age. The investigating Officer visited the place of occurrence and prepared a site plan. He recorded the statement of witnesses under Sec. 161 CrPC. After the completion of the investigations a charge-sheet was submitted against the respondent. He was committed to the court of Sessions to stand his trial. In order to prove its case against the respondent the prosecution examined Ahmad Ali (PW 1), Smt. Khanam (PW 2), Irshad (PW 3), Altaf (PW 4), Bhola (PW 5), Km. Mobin (PW 6), Kasim (PW 7) and Tausif (PW 10) as witnesses of fact. Raj Kumar (PW 8) is the Head constable who prepared the chik report. Dr. J. K. Sharma (PW 11) and Dr. R. Chandra (PW 12) gave medical evidence in the case. The Investigating Officer Ram Saran Lal Sharma was produced by the prosecution as PW 9.
(3.) THE respondent pleaded not guilty to the charge. He stated that he has been falsely implicated on account of enmity. He has filed a written statement in which it was, inter-alia, stated that he was married and was a person of good character. He further disclosed that he had three minor children. He also stated in his statement under Sec. 342 CrPC that he was not present in the village on the date of the alleged occurrence. The first question which requires determination is as to whether rape was committed on Km. Mobin. Dr. Chandra (PW 12) examined Km. Mobin on 16-2-1974 at 12 P. M. at Ghaziabad. She has stated that the sexual character in the girl had not developed. Her vagina admitted one finger with difficulty. He found the hymen raptured with bleeding edges and on touch the tear extended upto rectum. She also noted an external injury on the person of Km. Mobin which was a multiple abrasion 5-1/2"x 1/3" on the right side of the neck at upper side, which was covered by scab. The vaginal smear was taken but it did not disclose any spermatozoa. She was of the opinion that rape had been committed on Km. Mobin.;