IMPORTANT POINT
When there are irreconcilable inherent inconsistency and discrepancies in evidence of witnesses as also in ocular and medical evidence, accused cannot be convicted.

Judgment

Pinaki Chandra Ghose, J.

1. In the present case, there is concurrent decision of acquittal of the accused by the Sessions Court as well as the High Court of Madhya Pradesh. The offence alleged to have been committed in this case is rape, punishable under Section 376 of Indian Penal Code, 1860 (“IPC”, for short).

2. The story of the prosecution is that the prosecutrix is a minor of unsound mind. On 09-11-1990 at around 8:30 a.m. when prosecutrix and her younger sister Nirmala (PW3) were going to their field with food for their father, the accused came and caught hold of the prosecutrix. He took her to some distance near a pond and committed rape on her. Prosecutrix's private parts had bled and the petticoat was blood-stained. On seeing this, PW3 Nirmala rushed to her father Gopal (PW4) and informed him of the incident. Then PW4 came to the prosecutrix who told him with the help of sign language (since she cannot speak properly) that the accused committed rape on her. He noticed that there were blood stains on her petticoat near the private parts. Thereafter, PW4 took the prosecutrix to police station and lodged an FIR at 11:30 a.m. on the same day. Medical examination of the prosecutrix was conducted which revealed that the hymen was ruptured and the examining doctor Dr. (Mrs.) F.A. Qureshi opined that the prosecutrix was subjected to sexual intercourse. During investigation the accused was arrested on 21-11-1990 and was medically examined. He was found to be capable of performing sexual intercourse. The police filed charge-sheet against the accused with the charge of rape under Section 376 of IPC.

3. The prosecution produced PW1 Dr. Smt. F.A. Qureshi, PW2 Manohar Singh (uncle of the prosecutrix), PW3 Nirmala (younger sister of the prosecutrix), PW4 Gopal (father of the prosecutrix) and PW5 R.K. Mishra (Investigating Officer). Other witnesses were formal witnesses. It is important to note that the prosecutrix was also produced as a witness, being PW6, but it was found that she was not capable of understanding what was asked and made irrelevant answers. In the medical examination of the prosecutrix also, she is found to be 12-16 years old with low I.Q.

4. PW1 has deposed in her categorical finding that the private parts of the prosecutrix were injured, her hymen was ruptured and that she was subjected to sexual intercourse. The major eye witness in the present case is PW3 who is also a minor girl of 10 years. However, in her examination she was found to be competent witness as she answered the preliminary questions correctly and with understanding. She has in her examination-in-chief brought out the story that the accused, whom she knows, had caught her sister and taken her near the pond. According to her, he threw the prosecutrix on the ground, opened his pyjama and sat on her and gave the prosecutrix some money, which was thrown away by her. The witness further stated in her deposition that the accused filled the mouth of the prosecutrix with lungi, raised her petticoat and committed sexual intercourse and that the private part of the prosecutrix bled. She also stated that her uncle Manohar Lal arrived there on whose asking she went to her father in a car and told him about the incident. She has also stated that the accused had inflicted knife blows on the thigh of the prosecutrix. In the cross-examination, we find that the counsel for defence has asked the child witness (PW3) many leading questions, the implication of which the child witness would never be able to understand. Therefore, she has answered most of the questions with a mechanical one word answer “Yes”, without any elaboration. In this way, the defence elicited from the child witness the statements to the effect that the accused had given knife blows on the face, neck and thigh of the prosecutrix and that it was all these parts of the prosecutrix from where blood oozed out. In the same way she admitted the suggestion that she was read out a statement by police