V.G.Palshikar, J. - (1.) This appeal is directed against the judgment dt. 6.8.1994 passed by the learned Additional Sessions Judge, Bhilwara convicting the appellant-accused under Sec. 376 of the I.P.C. and sentencing him to rigorous imprisonment for a term of 7 years and fine of Rs. 1000/- in default rigorous imprisonment of six months.
(2.) The prosecution story in short is that on 7th April, 1993 in the after-noon, the appellant asked the prosecutrix Seema who was grazing her cattle that her cattle has entered the field of the accused. It is then alleged that the accused committed rape on the prosecutrix by forcibly ravishing her in his field. The prosecutrix, thereafter left the place and reported the matter to her mother who in turn informed her husband, who took her for medical examination and lodged F.I.R. After investigation, challan was filed against the accused and he was prosecuted as aforesaid under Sec. 376 of the I.P.C. The prosecution has examined 16 witnesses in support of the case that the accused was responsible for ravishing the prosecutrix. The accused denied the deposition of the witnesses in his examination under Sec. 313 of the Cr. P.C. and has stated that the entire evidence against him is false. The report was lodged due to prior animosity between the accused and the father of the prosecutrix, he has stated that the father of the prosecutrix has passed a writing on a stamp paper stating that the injury to the private parts of the prosecutrix was caused due to fall in the field while she was running away to escape thrashing by the accused for unauthorised entry of the cattle in the field of the accused. The accused has also examined 5 witnesses in his defence. All these five witnesses said that the charge of accused having committed rape was false and that the prosecutrix was injured due to fall while running in the field. On appreciation of the entire evidence, the learned Additional Sessions Judge came to the conclusion that the accused is guilty of having committed rape on the. prosecutrix who is only 9 years old. In consonance with these findings of the guilt, the learned Judge proceeded to convict the accused for 7 years imprisonment as aforesaid. It is this judgment of conviction which is impugned in this appeal.
(3.) The learned counsel appearing on behalf of the accused submitted that the judgment is unsustainable in law for the following reasons; (a) That the injury caused to the prosecutrix was due to fall in the field. (b) The medical evidence is not inconsistent with the innocence of the accused. (c) Doctor in her deposition has categorically admitted that the injury to the private parts of the prosecutrix can beca used by falling of the blunt object. (d) The learned Judge was in error in disbelieving the writing parts of the father of the prosecutrix before the Panchayat. (e) The learned Judge has not given any cogent reason for rejecting the defence evidence. (f) The learned Judge has not considered the deposition of the brother of the prosecutrix who admits the execution of the documents before the Panchayat. For all these reasons, the learned counsel submits that the judgment of the learned Sessions Judge is unsustainable in law. It is the submission of the learned counsel that the entire circumstances appearing against the accused in the present case even if accepted to be true are consistent with his explanation. Thus, according to the learned counsel, two views are possible of the evidence on record (1) which is consistent with the guilt of the accused and another consistent with the innocence or his theory of fall while running away. Relying on certain judgments of the Supreme Court, the learned counsel submitted that in such situation inference in favour of the accused should ordinarily be drawn. According to the learned counsel, all the circumstances appearing against the accused can be reasonably explained. In such circumstances and in view of the peculiar circumstances of agreement executed before the Panchayat, the order of conviction appears to be illegal.;