- (1.) This appeal has been filed by the State of Rajasthan against the judgment and order dated 11-5-1990 passed by the learned Sessions Judge, Bhilwara in Sessions Case No. 42/1989 by which he acquitted the accused respondent of the charge for the offence under Section 376, IPC.
(2.) It arises in the following circumstances: On 6-2-1989 at about 8.45 p.m. PW 4 Kela lodged a written report Ex. P/7 before the SHO, Police Station Bagour, District Bhilwara stating inter alia that on 6-2-1989 at about 10.30 a.m, his daughter PW 1 Ku. Manju (hereinafter referred to as the prosecutrix) aged about 11 years went towards the jungle of Moti Dungari after taking goats with her for the purpose of grazing. It is further stated in the report that in the evening at about 6.00 p.m. accused respondent Gaharoo brought his daughter prosecutrix on his shoulders and at that time, he found that her gagra and lungdl were stained with blood and even blood was coming out from her private part. Thereafter, PW 4 Kela, father of the prosecutrix, asked her daughter PW 1 Manju and upon this, prosecutrtx told that when she was grazing goats, two persons on cycle from the side of Gundani came and stopped cycle and out of them, one person took her towards the pit and committed rape on her and, thereafter, they ran away and since she became unconscious, the accused respondent brought her to her house and she further told that she did not know the names of those two persons. On this report, police registered the case and chalked out FIR Ex. P/8 and started investigation. During Investigation, medical examination of the prosectrix PW 1 Manju was got conducted and her medical examination report is Ex. P/8, where there is a clear cut finding that there was evidence of fresh intercourse and this medical examination report was admitted by the learned counsel for the accused respondent during trial. Similarly, PW 1 Manju was also got medically examined for the purpose of ascertaining her age and on the basis of physical examination and radiological report, the doctor opined that age of PW 1 Manju was 12 to 14 years as on 7-2-1989 and her report with regard to age is Ex, P/4. This report was also admitted by the learned counsel for accused respondent during trial. Since during investigation it was revealed by the prosecutrix PW 1 Manju that rape was committed on her by none except accused respondent and in the beginning as per the threat of accused respondent, she did not reveal his name and thus, the police found the case against the accused respondent and arrested the accused respondent. During investigation, the accused respondent gave information under Section 27 of the Indian Evidence Act for the purpose of showing the place where the rape was committed on prosecutrix and in pursuance of that information, the place was pointed out by the accused respondent to the police and from the spot, bloodstained soil was taken and sent for chemical examination. The accused respondent was also got medically examined about potency and his report Is Ex. P/10 and his age was assigned between 19 to 21 years. Though in the charge-sheet, it is also mentioned that underwear and dhoti of accused respondent, which were stained with human blood were also seized, but it appears that they have not been got exhibited in evidence. After usual investigation, the police submitted challan against the accused respondent in the Court of Magistrate, from where the case was committed to the Court of Session. On 15-4-1989, the learned Sessions Judge, Bhilwara framed charge under Section.376 IPC against the accused respondent. The charge was read over and explained to the accused respondent, who pleaded not guilty and claimed trial. During trial, the prosecution in support of its case examined as many as six witnesses and got exhibited some documents. Thereafter, statement of the accused under Section 313, Cr. P. C. was recorded. One witness was produced by the accused in defence. After conclusion of the trial, the learned Sessions Judge, Bhilwara vide his Judgment and order dated 11-5-1990 acquitted the accused respondent of the charge under Section 376, IPC holding inter alia:- 1. That at the time of incident, the age of the prosecutrix PW 1 Manju was below 16 years. 2. That there is evidence of fresh intercourse. 3. That in the report Ex, P/7, two important facts are mentioned; (i) PW 1 Manju, prosecutrix was being brought to the house of PW 4 Kela by accused respondent himself and (ii) on being asked, PW 1 Manju prosecutrix informed her father PW 4 Kela that she was raped by other person and not by accused respondent. Therefore, the learned Sessions Judge did not place reliance on the statement of the prosecutrix Manju recorded as PW 1 and on the statement of her father Kela recorded as PW 4 in Court, as their statements were contradicted by report Ex. P/7 and thus, he came to the conclusion that prosecution has not been able to prove its case beyond reasonable doubt against the accused respondent and accused respondent was given benefit of doubt by the learned Sessions Judge. Aggrieved from the said Judgment and order dated 11-5-1990 passed by the learned Sessions Judge, Bhilwara, this appeal has been filed by the State of Rajasthan.
(3.) In this appeal, it has been argued by the learned Public Prosecutor for the appellant:- 1. That the learned Sessions Judge should have believed the statement of PW 1 Manju, prosecutrix as her statement gets corroboration from medical evidence and she has clearly stated in her statement recorded in Court that she was raped by the accused respondent. 2. That because of discrepancies, which have occurred in the report Ex, P/7, which was lodged by PW 4 Kela, father of the prosecutrix, the case of the prosecution should not have been thrown away. 3. That the learned Sessions Judge should not have forgotten the fact that because of threat given by accused respondent to PW 1, Manju prosecutrix, the prosecutrix PW 1 Manju has not mentioned the name of the accused respondent when she was being brought to her house by accused respondent himself and, therefore, her statement recorded in Court should have been believed by the learned Sessions Judge, especially when she has given the same version in her statement Ex. D/1 under Section 164, Cr. P. C. before the Magistrate. ;