Judgment

S. RATNAVEL PANDIAN, J.:- This appeal by special leave under Art. 136 of the Constitution of India is preferred by the State of Karnataka challenging the judgment of the High Court of Karnataka rendered in Criminal Appeal No. 413 of 1978.

2. The brief facts giving rise to this appeal are as follows:

The respondent, Mahabaleshwar Gourya Naik who was aged about 18 years at the time of alleged incident was tried for an offence punishable under Ss. 341, 354, 376 and 323, I.P.C. on the allegation that on 3-10-77 at about 2.10p.m. on Nidagod-Heggodmane road at a distance of 2 furlongs away from Nidagod cross, wrongfully restrained the victim girl, who before the trial of the case is said to have committed suicide, and committed rape without her consent by forcibly taking her to the nearby jungle which is at a distance of about 40 metres from the road and that during the course of the said offence, the respondent caused hurt to the victim. At the time of the occurrence, the girl was aged about 15 years, studying in IX Standard in Siddavinayaka Girls High School at Siddapur. As the prosecutrix Palakashi died even before the trial commenced, the prosecution has rested its case only on the evidence of P.Ws. 3, 4 and 6 as well as the evidence of the Medical Officer, P W. 1. Of the witnesses examined, P.Ws. 3 and 6 are the brother and mother of the victim girl.

3. It is the evidence of P.W. 4, when he was going from Heg6dmane to Siddapur, he heard cries emanating from the right side of the road. He went towards that side and saw the respondent standing there under a tree, raising his underwear (chaddi). P.W. 4 further states that the respondent on seeing him ran away from that place. Then P.W. 4 was told by the prosecutrix that the respondent had spoiled her while she was returning from the school. At the request of the victim girl, P.W. 4 took her to her house.

4. It is the evidence of P.Ws. 3 and 6 that the prosecutrix told both of them that the respondent had spoiled her while she was coming from the school by forcibly taking her inside the jungle. In respect of this incident, P.W. 3 made a complaint at Siddapur Police Station. On the basis of the complaint, a case was registered in Crime No. 202 of 1977.

5. P.W. 8 took up. the investigation. He, after seizing certain articles from the scene of the occurrence and examining the victim and the others, sent the victim girl for medical examination. On the same day, the respondent was arrested near Nidagod bus stand. He seized his underwear, pen-knif and handkerchief marked as M0s 4, 1, and 6 respectively. At about 9.30 p.m. both the respondent and the victim were simultaneously sent for medical examination. P.W. 1, the Medical Officer examined the victim and opined that the girl might have been raped by vulval penetration if not by forceful penetration in which case there would have been rupture of hymen. However, he gives the following symptoms as having been found on the person of the victim:

"Hymen was intact. No bleeding or dried blood mark was seen. No discharge was seen. Fourchette was intact........ There was no swelling."

6. On examination of the respondent/ accused, the medical officer, P.W. 1 stated:

"......... There was no blood stains nor any hair was seen on the penis. The pubic hair were not matted. There was small amount of smegma on the dorsal side of posterior 1/4th glands."

7. He admits that he has not mentioned in Exh. P2 that he found any symptom proving the commission of sexual intercourse having been committed by the respondent.

8. P.W. 1 sent vaginal smear taken from the victim and the urethral smear taken from the respondent for microscopic examination. The garments of both the victim and the respondent were also sent for chemical test. The microscopic and chemical tests were negative and that there was no detection of semen or spermatozoa in the two slides of vaginal smear and two slides of urethral smear.

9. After completing the investigation, the charge-sheet was