IMPORTANT POINT
Where doctor found hyman completely torn, laceration on all sides of the virgin and fresh bleeding and a finger could be easily inserted inside the private part of child of 5 years, this indicated that there was sexual assault (rape) on the girl.

JUDGMENT

Faizan Uddin, J. - The respondent Babul Nath a young man of 32 years was charged and tried for an offence punishable under Section 376 of the Penal Code for committing rape on Kumari Nirmala Devi, a child aged about 5 years, in the afternoon of 15.3.1917 in the grove of one Baleshwar Pathak in village Rampa within the jurisdiction of Police Station Bhadohi, District Varanasi. In Sessions Trial No. 26/78 the learned Sessions Judge, Varanasi found the respondent guilty of the offence charged with and, therefore, convicted him under Section 376 I.P.C. and sentenced him to suffer imprisonment for five years. On appeal by the respondent the High Court rejected the testimony of the sole eye-witness Ram Lakhan, P.W. 1, set aside the conviction and sentence imposed on the respondent and acquitted him of the charge of rape. The State of Uttar Pradesh has, therefore, approached this Court in. appeal under Article 136 of the Constitution of India on grant of leave.

2. The prosecution case as it emerges out of the written report made by Ram Lakhan, P.W. l is that on 15.3.1977 at about 4 P.M. when Ram Lakhan, P.W. l, Jokhan Ram, P.W. 2, Kansraj, P.W. 3 and Kauleshwar while passing by the side of the grove belonging to Baleshwar Pathak of village Rampa they heard screams and cries of some girl and, therefore, they rushed into the grove where they saw the girl Nirmala lying down on the ground in a semi-conscious state with her private part profusely bleeding and the respondent Babul Nath was seen running away arranging his Dhoti from that place. They arranged for a Khatola (small cot) and proceeded on floor with the girl on Khatola to the Police Station, Bhadohi where Ram Lakhan, P.W. 1 made a written report Ext. Ka. 1 which was received by the Head Constable Awadh Narain Singh, P.W. 4. On the basis of said report Head Constable Awadh Narain Singh prepared a formal chik report Ext. Ka. 2 and an offence under Section 376 I.P.C. was registered against the respondent as per Ext. Ka. 3.

3. Thereafter, the girl was taken to the Hospital, Bhadohi same day where she was medically examined by Dr.(Mrs.) Santosh Kohali, P.W. 6 at 10.30 PM. Dr. Kohali found the girl in semi-conscious state and he, general condition was poor. Her pulse was 100 per minute. On external examination the doctor found hymen completely tom and there was laceration on all sides of her vagina. There was fresh bleeding. On internal examination doctor noticed that a finger could be easily inserted in her private part. The blood stained discharge was coming out. In the opinion of the doctor the girl was subjected to sexual intercourse.

4. At the trial the appellant adjured his guilt and pleaded false implication. He took the plea that he was a barber by profession and since he had left shaving the beards of the complainant and the witnesses and, there being party bandi in the village he was falsely implicated on that account. The appellant, however, led no evidence in defence. The learned Trial Judge relying on the evidence of the solitary witness Ram Lakhan, P.W. 1 supported by the medical evidence found the appellant guilty for the offence he was charged with and, therefore, convicted and sentenced him accordingly as said above. On appeal by the respondent, the High Court took a different view of the medical evidence as well as the evidence of the sole eye-witness Ram Lakhan, P.W. 1. The High Court was of the opinion that from the medical evidence a reasonable probability was made out that the girl was subjected to indecent assault and it was not proved beyond reasonable doubt that she was subjected to sexual intercourse. With regard to the sole eye-witness Ram Lakhan, the High Court took the view that he lodged the report in the Police Station after more than 5 hours of the incident and the explanation for the delay in lodging the report was fabricated and that his evidence on two important facts was contradictory to the written report lodged by him and that his evidenc