- (1.) S. N. Sahay, J. This is an appeal by the State against the order of sri J. V. N Jaiswal, Addl. District and Sessions Judge, Saharanpur dated 27. 6. 80 acquitting Padam Singh respondent under Section 376 I. P. C. in Session Trial No. 87/80.
(2.) THE prosecution case is that Premwati (PW1) is the daughter of Ratnoo resident of village Nayagaon Police Station Rampur District Saharanpur. On February 4, 1980 at about noon the respondent came to the house of Premwati and asked Premwati and her cousin Rajendra to come to his field for cutting Barseem. Premwati was aged about 11 years at that time. Both Premwati and Rajendra went with the respondent to his field and cut Barseem for about 1 1/2 hour. Rajendra at the instance of the respondent took a bundle of Barseem and went away for keeping the same at the house of the respondent. After Rajendra had left, Premwati was taken to the adjoining sugar cane field of Niranjan by the respondent. In that field, the respondent caused Premwati to lie down on the ground, took off his Paijama, pulled down the salwar of Premwati and committed rape on her. THE salwar of Premwati got stained with blood. Lotan (PW 2) Pirthi (PW 3) and others arrived at the spot on hearing cries of Premwati. THE respondent took his paijama and ran away on seeing them. After the incident, a report was written by Pirthi (PW 3), on which Premwati affixed her thumb impression. Pirthi is uncle of Premwati. The report was lodged by Premwati at police station Rampur on February 4,1980 at 8. 15 P. M. The distance between the police station and village Nayagaon is 9 miles. The Police registered a case against the respondent under Section 376 I. P. C. The case was investigated by Sub-Inspector Rukan Singh (PW 4 ). He inspected the place of occurrence, prepared site-plan and interrogated the witnesses. He did not find the respondent who later on surrendered in court on February 7, 1980. After completing investigation he submitted charge-sheet against the respondent on February 8,1980. Dr. (Smt.) Nirmala Sharma examined Premwati on February 5, 1980 at 11. 30 A. M. Premwati was produced before her by constable Bhag Singh. The medical report prepared by Dr. (Smt.) Sharma is as follows: "secondary Sex Characters - Breasts not developed. No hair present in the axilla. No marks of injury seen on the body. Per vaginam Exam : Vagina admits one finger with difficulty p/v. Very painful. Hymen torn at various places. Inflamed bleeding on touch, red. Second degree vaginal tear at 6 O'clock position about 1 cm long present towards anus. Clots seen in vagina. " Premwati was referred by Dr. (Smt.) Sharma for X-ray examination for determina tion of her age. The X-ray report, dated February 5,1980, indicated that in the Right wrist Pisoform bone was present and in Right elbow epiphysis of medial epicondyle was not fused and epiphysis of bones of right knee was also not fused. According to X-ray report, the age of Premwati was about 11 years.
(3.) THE report of Dr. (Smt.) Sharma dated February 5,1980 shows that vaginal smear was taken and sent for microscopic examination. Blood stains were present on the Salwar of Premwati was wearing and it was directed that it should be sealed by police. Pathological report dated 5. 2. 80 was that no spermatozoa was seen (dead or alive ). In her report dated 6. 2. 80 Dr. (Smt.) Sharma, after referring to the pathological report, stated that no definite opinion can be formed about rape. The Salwar of Premwati was sent with a covering letter of Chief Judicial Magistrate dated 11. 2. 80 to the Chemical Examiner for examination and report. The Chemical Examiner gave a report dated 10. 6. 80 stating that blood stains and spermatozoa were found on the Salwar. The largest blood stain was 15 cm. long. The respondent was charged under Section 376 I. P. C. at the trial. The prosecution examined four witnesses namely Premwati (PW 1), Lotan (PW 2), Pirthi (PW 3) and Sub-Inspector Rukan Singh (PW 4 ). Premwati is the victim and two other witnesses are eye-witnesses of the occurrence. Sub-inspector Rukan Singh is Investigating Officer. Dr. (Smt.) Sharma was examined as C. W. 1. The respondent denied the prosecution case. He has stated that he has been falsely implicated due to enmity. The learned Addl. Sessions Judge found that the prosecution has not been able to prove its case beyond doubt and the accused is entitled to benefit of doubt. Therefore the respondent was acquitted.;