PRITPAL SINGH, J. - (1.) THIS appeal is directed, against the judgment and order dated 1-4-1981 of Shri Krishan Kant Aggarwal Additional Sessions Judge, Sonepat whereby the appellant Subhash Chander was convicted under section 376/511, Indian Penal Code and sentenced to undergo rigorous imprisonment for two years.
(2.) THE facts of this case are that on 18-9-1980 at about 1.00 or 2.00 P.M., the prosecutrix Kumari Sheela (PW. 4) who was about 11 or 12 years of age at the time of occurrence, took meals for her grandfather Jamait Ali in the garden of one Surta which he had taken on lease. After serving the meals to the grandfather, she was returning to her house when on the was the appellant accosted her near the field of Ram Kishan caught hold of the prosecutrix and took her inside the jowar filed of Ram Kishan. He took off her salwar, gagged her mouth when she raised an alarm, and committed rape on her. She was then released by the appellant and as she came out of the jowar field. Shri Kishan (P.W. 5) met her to whom she narrated the occurrence The appellant also emerged from the jowar field and confessed before Shri Kishan (PW. 5) having committed rape on the prosecutrix. He, however, regretted the folly committed by him. The First Information Report was lodged at about : 7.00 P.M. on the same day and the prosecutrix was examined by Dr. Rashmi Gupta (PW. 3) at the Primary Health Centre, Gannaur at 10.15 P.M. and the doctor noted the following injuries on the person of the prosecutrix : 1. Linear scratch 2 cm. reddish in colour on the front of right forearm 8 1/2 cm. above the wrist from above downwards and laterally. 2. .6 cm. superficial scratch reddish in colour on the back of left hand 2cm above the base of left thumb. 3. 4cm linear scratch on the right side of the neck running downwards and laterally reddish incolour. 4. Genitals-no pubic hair, no exillary hair and there was no injury on the chest, Human was not present. There was abrasion on the posterior fourchette with minimal bloody Ooxing. There was no tear or wound seen. No injury was seen on the vagina. The doctor also took two vaginal and genital swabs from the person of the prosecutrix which she sent for examination to the Forensic Science Laboratory. The shirt and the salwar worn by the prosecutrix at the time of the occurrence were also produced before the doctor and these clothes were also sent to the Forensic Science Laboratory for examination. According to the report issued by the Assistant Director, Forensic Science Laboratory, although the human semen was detected on the salwar and the shirt, but no semen was detected on the swabs of the prosecutrix. The appellant was arrested on 24-9-1980 and he was examined by Dr. S.P. Singal (PW. 2) at Primary Health Centre, Gannaur. The doctor opined that the accused was capable of performing sexual intercourse. The prosecutrix Kumari Sheela (PW. 4) and Shri Kishan (PW. 5) supported the prosecution case. However, in the light of the medical evidence indicating that there was no penetration of penis within the labis majora vulva of the prosecutrix, the learned trial Court came to the conclusion that no case under section 376, Indian Penal Code was made out against the appellant. It was, however, found established that the appellant did commit criminal assault on the prosecutrix while trying to rape her. In the consequence, the appellant was found guilty of having committed an offence under section 376 read with section 511, Indian Penal Code.
(3.) THE only two witnesses relevant to prove the prosecution case are the prosecutrix Kumari Sheela (PW. 4) and Shri Kishan (PW. 5). Admittedly, Shri Kishan is inimical towards the appellant and as such the learned trial Court did not place implicit reliance on him. The guilt of the appellant was considered established only from the statement of the prosecutrix and the medical evidence as well as the fact that human semen was detected on the salwar and the shirt of the prosecutrix.;