- (1.) This appeal, on behalf of accused Ratan Lal Son of Shri Roop Ram, is directed against the judgment and order dated 25-11-2002, passed by the Additional District & Sessions Judge, Lakshmangarh (Alwar), in Sessions Case No. 99/2000, whereby he was convicted under Section 376(2)(f) of the Indian Penal Code (for short, 'IPC') and sentenced to ten years rigorous imprisonment and a fine of Rs. 5000/-; in default of payment of fine, to further undergo one year's additional rigorous imprisonment, for the charge that he committed forcefully sexual intercourse with a minor girl Sanju, aged about 4 years, on 9-8-2000.
(2.) Shri Dharam Gopal Chaturvedi, the learned counsel for the accused-appellant, contended that there is no substantive evidence in the present case about rape committed by the accused-appellant as neither the prosecutrix has been examined in the present case nor there is any eye-witness thereto. He also contended that prosecutrix Sanju was not examined in spite of fact that after hearing the arguments from both the sides on 19-9-2002 and on fixing the case for orders on 20-9-2002, the Additional Public Prosecutor filed an application under Section 311 of the Code of Criminal Procedure (for short, 'Cr.P.C.'), to produce the prosecutrix Sanju. The trial Court allowed the said application and vide its order dated 20-9-2002 granted an opportunity to the Additional Public Prosecutor, to produce the prosecutrix Sanju but still she was not examined, therefore, an adverse inference should be drawn against the prosecution.
(3.) The learned counsel for the accused-appellant also contended that as per the First Information Report (for short, 'FIR') there were two boys present at the place of occurrence with the prosecutrix but both were not examined. Both boys were eye-witnesses, as per F.I.R. but both were not examined by the prosecution for the reasons best known to them. He also contended that as per the injury report (Exhibit P-21) of the prosecutrix, the hymen was found torn but there was no marks of any injury on the part of the body. He contended that mere rupture of hymen does not prove the case of rape against the accused-appellant and the opinion of rape given in Exhibit P-21, proved by PW-16 Dr. R. K. Mishra, cannot be treated as substantive evidence. This evidence could have been used as corroborative of a sub-stantive evidence but in the present case there is no substantive evidence to prove the sexual intercourse committed by the accused with the prosecutrix, hence this report is of no help to the prosecution case and only on that basis it cannot be said that the accused-appellant committed an offence of sexual intercourse with the prosecutrix Sanju. He also contended that as per the medical report of the accused it is clear that there was no injury on the male organ of the accused whereas the accused was young boy of 17 to 18 years of age and it proves his innocence as it is not possible that any young person, who commits sexual intercourse with a girl of 4 years of age, is found uninjured on his penis, therefore, he contended that the accused-appellant has falsely been implicated in the present matter. He also contended that the underwear and the frock of the prosecutrix were seized and sent to the Forensic Science Laboratory (for short, 'FSL') and as per its report (Exhibit P-20) no blood stains were found on both the articles, therefore, his contention is that the learned trial Court has committed an illegality in convicting and sentencing the accused-appellant.;