JUDGMENT

H.K.SEMA,J

This appeal is preferred by the State of Tamil Nadu against the judgment and order dated 8.7.1999 passed by the High Court. The respondent-accused Ravi @ Nehru was convicted by the Trial Court for an offence under Section 376 IPC and sentenced to seven years rigorous imprisonment and a fine of Rs.2,500/- and in default to undergo rigorous imprisonment of 2 years. Aggrieved thereby he preferred Criminal Appeal No.768 of 1992 before the High Court. The High Court by the impugned judgment and order has set aside the order of conviction and acquitted the accused. Hence this appeal by special leave.

Briefly stated the prosecution's case is as follows:-

On 23.10.1989 at about 3.30 p.m. PW-2 Arthi (victim girl) aged about five years was going to her aunt's house along with other children. At about 4.00 p.m. she came running to her house and informed her mother PW-1 that the accused took her to the bed room of his house and after removing her underwear and his pant placed her on his lap and pressed his male organ on her female organ. She cried in pain. On hearing her cry, two persons who were watching television in the front room of the house came there and scolded the accused. PW-1 the mother of the victim girl removed all the clothes of PW-2, which according to her contained blood stains. She also washed her clothes and gave a bath to her daughter with the help of PWs 8 and 9 Thereafter, she took PW-2 along with PWs 8 and 9 to H.P.F. Hospital where PW-7 Dr.Gavaramma was working. PW-7 then advised them to take the victim girl to a nearby government hospital. After the arrival of the father of the victim girl at the house PW-2 was taken to the government Hospital, Udhagamandalam at about 10.30 p.m. She was then referred to children's hospital. PW-6 Dr.Radhabhai who was in charge of the government hospital examined PW-2 at about 11.00 P.M. PW-6 stated that at the time of examination, the victim girl was in a conscious state of mind, there were no external injuries, there were no blood stains on her dress, there was no injuries on her female organ but hymen was ruptured and there were no fresh bleedings from the female organ.

PW-5 Dr.Lakshmanan examined the accused on 24.10.1989 at about 12.30 p.m. and found the following injuries on him:-

"1.There were bloodstains both on the top portion and in the middle portion of the brief of the accused.

2. His penis was 3 inches in length and his urinary opening was normal and there were no external injuries.

3. There was cut wound at the bottom portion of his penis. When pressed at the place of this cut wound, bloodstain was there. There was no sign of fresh semen. Except this cut wound on the penis, there is no injury anywhere around the penis. There were not bloodstains on the pubic hair, which were = inch long. Scrotum was normal. When the frontal portion was pressed, there was no oozing of blood. His penis was well-developed and he possesses virility. The certificate which I gave was the 4th documents. There is possibility for a cut wound of the above sort to cause when the penis is forced into the vagina. This cut wound might have caused before 12 hours of and within 24 hours of the medical test performed by me. The certificate which I gave this effect was document 5. As the blood sample of the accused has to be tested, I directed for the same. Test results showed that his blood group is PRH Positive."

In re-examination he stated:

"Chances for causing such type of cut wounds are possible usually when the penis is in erect condition."

In the course of the Trial the prosecution examined as many as 14 witnesses. Exhibits P-1 to P-19 were marked and M.Os. 1 to 6 were also produced before the Court. No defense witness was examined on behalf of the accused. The plea of the accused was total denial. The Trial Court on appreciation of the evidence and documents on record found him guilty and sentenced him as aforestated.

PW-2, the prosecutrix has stated i