- (1.) M. C. Jain, J. The State is aggrieved by the judgment dated 3-11-1998 passed by Sri A. K. Rastogi, Additional Sessions Judge/special Judge (E. C. Act), Bulandshahr in S. T. No. 213 of 1997, acquitting the accused-respondent Sudhir of the charge under Section 376 I. P. C. relating to commission of rape on a girl of tender age of 9 years.
(2.) THE incident took place on 14-1-1997 at about 5. 30 p. m. in the field of Hans Raj situated in the jungle of village Akbarpur Raina, Police Station Agauta, District Bulandshahr. THE report was made on 14-1- 1997 at 9. 05 p. m. by Jai Prakash (father of the victim) who died during the trial before his evidence could be recorded. On the fateful day, the complainant, his wife Gayatri Devi PW 2 and the prosecutrix Guddi PW 1 were watching the grove of guava belonging to Jagdish Master which they had taken on contract. Leaving the prosecutrix there, the parents came to their house to prepare fodder for the cattle. When they returned back to the grove, they found their daughter Guddi to be missing and made a search for her calling her by name. THEy heard her sobbings at about 5. 30 p. m. from the nearby field of sugarcane of Hans Raj. THEy hastened to that side and found the accused-respondent committing rape on their daughter who was sobbing. Seeing them, he ran away. Consequent upon the lodging of the F. I. R. , a case was registered in the night itself. At 1. 10 a. m. the victim was subjected to medical examination which was conducted by Dr. Saranju Kumar PW 3. Her hymen was found torn at 6 O'clock position; vagina admitted one finger; perineal tear was present; vaginal mucosa muscles skin torn at about an inch in length and edges of tear were bleeding on touch. Vaginal smear swab was taken and sent for pathological examination. She was admitted for treatment. Radiological test with X-ray was taken for determination of her age and on the basis of the same her age was determined to be about 9 years. The defence was of denial. The trial Court recorded acquittal on the premises that the eye-sight of the mother of the prosecutrix was weak and that the victim had seen the accused for the first time in the Court, but his test identification parade had not been conducted. However, finding was recorded that rape had been committed with the girl.
(3.) THE accused-respondent had also examined PW 1 Jai Prakash Singh Lekhpal of village Akbarpur Raina to say that Jagdish Master or his wife Sheela had no field adjacent to that of Hans Raj's sons. Hans Raj had died and his land had come to be recorded in the names of his four sons, according to him. Thakur Das DW 2 Lekhpal of village Agauta deposed that Hans Raj had no land in village Agauta, though his sons had their land adjacent to which was the field of Sheela wife of Jagdish Master. We have heard Sri M. C. Joshi learned A. G. A. from the side of the State in support of the appeal and Sri P. K. Srivastava, learned counsel for the accused-respondent in opposition thereof. We have also carefully gone through the evidence on record and we are of the opinion that acquittal recorded by the trial Judge is wholly unsustainable being based on hyper-technicalities which cannot at all be sustained. The reasons which we are going to specify would make it abundantly clear.;