Judgment

Sema, J.—This appeal is preferred by the State of U.P. against the acquittal recorded by the High Court.

2. The respondent was put to trial under Section 302/376 IPC. The trial court after conclusion of the trial convicted the respondent and sentenced him to RI for life under Section 302 IPC. The respondent was also sentenced to 7 years RI under Section 376 IPC. Aggrieved thereby, the respondent preferred the appeal before the High Court. The High Court by the impugned order acquitted the accused. Hence, the present appeal.

3. The story as unfolded by the prosecution is as follows :

On 21.2.1979 the prosecutrix, aged about 10 years, stated to be disappeared and was missing. Since the victim girl did not return PW.1, Braj Lal the father of the complainant made an abortive search for her and thereafter filed an FIR on 22.2.1979 at 8.15 p.m. The case was registered under Section 302/376 IPC. In the course of the investigation the prosecution examined as many as eight witnesses. The prosecution mainly relied on the evidence of Pws. 2, 5, 6 and 7 who are the witnesses with regard to the last seen of the accused with the victim. Prosecution also examined PW. 3, Dr. A.N. Saxena who conducted the postmortem examination of the deceased. The prosecution also examined PW. 1, Braj Lal who is an author of the FIR.

4. The case of the prosecution rests entirely on circumstantial evidence. The trial court after examining evidence of PWs. 2, 5, 6 and 7 has come to the conclusion that the clain of circumstantial evidence appearing against the accused was completely established and recorded order of conviction. The trial court was of the opinion that the statement of PW. 2, Sakuntla, PW.5 Ram Bahadur, PW.6 Kamta Prasad, who is a teacher, and PW.7 Virendra Singh has credence and there is no reason to discredit their creditworthy evidence with regard to the last seen of the accused with the victim.

5. Before we advert to the evidence of the witnesses we may take notice of the evidence of PW.3, Dr. A.N. Saxena who conducted the postmortem examination of the victim. PW. 3, Dr. Saxena stated that the postmortem examination of the deceased Nanhi was performed on 23.2.1979 at 3.30 p.m. and on physical examination he found that the victim girl was aged about 10 years old with an average built. PW.3 opined that the death had occurred two days earlier. Rigor mortis has passed off. On examination of vaginal parts, PW.3 found that there was vaginal bleeding. Hymen was lacerated with red edges. Edges of labia minora were bruised.

6. On examining the physical body of the deceased, PW.3 found the following injuries :

(1) Multiple intempted abraded contusions in an area of 6 cm x 2 cm on right side neck, 2 cms. Below angle of mandible.

(2) Multiple intempted abraded contusions on right side face in an area of 7 cm. x 3 cm., 3 cms. In from of right ear.

(3) Multiple intempted abraded contusions on left side neck in area of 5 cm. x 2 cm. 6 cm. below left ear.

(4) Abraded contusion 3 cm. x 1 cm. on left side cheek. 2 cm. in front of left ear.

(5) Abrasion 1 cm. x 1/2 cm. on right side front of chest. 4 cm. below staret end of right clavicle.

7. PW. 3 opined that the deceased was raped before her murder which took place on 21.2.1979 at about 6.30 or 7 p.m. He further opined that the death was occurred due to asphyxia on account of strangulation.

8. This doctor was subjected to lengthy cross-examination nothing could be elicited from the cross-examination to discredit otherwise the creditworthy of his testimony.

9. At this stage since the conviction was entirely rests on circumstantial evicence we may also point out that the clinching evidence appearing against the accused and which was not explained by him. From the testimony of PW.3 it appears that the victim girl apart from other injuries suffered many lacerated multiple intempted contusions on the face and on the right ear. Multiple abraded contusions on the left ear and on the left cheek and in front of the left ear.