Honble SAXENA, J. — This jail appeal has been preferred against the judgment dated 6.6.91 passed by the learned Special Judge, S.C. & S.T. (Prevention of Atrocities) Shri Ganganagar, whereby he consicted the appellant for the offences u/s. 376 IPC and under Sec. 3(xi) S.C. and S.T. (Prevention of Atrocities) Act and sentenced him to ten Years R.I. and a fine of Rs.4000/- and in default to further undergo S.I. for six months on the first count and to two years R.I. and a fine of Rs.1000/- and in default to further undergo S.I. for two months on the second count.

(2). Briefly the facts necessary for disposal of this appeal are that the appellant was the servant of Gopi Ram (PW-1) and was staying with him near the Kiln in the R.C.P. Colony, Suratgarh. On 4.10.90, in the morning, Gopi Ram (PW-1) alongwith appellant Thana Ram had gone with his camel cart. Since on the way camel cart went out of order, Gopi Ram took his camel cart for repairs to a Mislri, while the appellant came back to the house of Gopi Ram with the camel at about 12 noon. It is alleged that at about 1 PM, Smt.Sohni (PW-2) wife of Gopi Ram was taking bath in her room. At that point of time, she heard the screams of her daughter Chhoti aged five years. She immediately rushed to her another room, which was situated near the Kiln, where she found that the appellant was lying over Kumari Chhoti on the cot and was committing rape with her. At that time, the appellant was naked and he had also opened the underwear of Chhoti. Thereupon, Smt.Sohni pushed the apellant and rescued her daughter. She noticed that blood was oozing out from the vagina of Kumari Chhoti. Thereafter the appellant ran away. Smt.Sohni also raised alarm, which attracted PW-3 Manphool and PW-4 Nakshatra Singh, who were working nearby. They also saw the appellant Thana running away from that room. Smt.Sohni narrated the incident to them and also called her husband. Smt. Sohni lodged on oral report about the incident before PW-7 Dinesh Sharma, SHO, P.S.Suratgarh on the same day at about 3 PM, whereupon FIR Ex.P.l was drawn and the case was registered.

(3). PW-5 Dr.Omprakash Sharma, Junior Specialist (Surgery), Govt. Hospital, Suratgarh examined prosecutrix Kumari Chhoti on the same day at 3.40 PM. He found that her underwear was stained with blood and semen like stains. He noticed a bruise l"xl/4" on the lateral aspect of the right side of her chest. He also noticed blood stains on her external genitalia and blood in the vagina on.the posterior side. There was a laceration 1 l/2cm x 1 cm on the posterior wall of the vagina, which bleeded on touch. The hymen was torn fresh on posterior side, which also bleeded on touch. The Doctor vide his report Ex.P.2 opined that Kumari Chhoti was subjected to rape.

(4). The radiological examination of the prosecutrix was conducted on 5.10.90. The Radiologist, opined that her age was about 5-6 years. The I.O. inspected the site, seized the blood and semen stained underwear of the prosecutrix vide seizure memo Ex.P.6. The appellant was also arrested on the same day and his underwear was seized and sealed vide seizure memo Ex.P.6. After completion of the investigation, a challan was filed in the Court of learned MJM,Suratgarh, who in his turn committed the case to the learned Special Judge.

(5). The appellant was charged for the offences u/s.376 and under sec.3(l)(xi), S.C.& S.T.(Prevention of Atrocities) Act, 1989. The appellant denied the indictment and claimed trial.

(6). The prosecution examined as many as seven witnesses. The appellant in his plea recorded u/s.313 Cr.P.C denied the circumstances appearing against him in the prosecution evidence. He,however, admitted that he was examined by the Doctor and that his underwear was also seized by the police. He also admitted that he was working with PW 1 Gopi Ram and asserted that when he demanded his wages, he has been falsely implicated in this case. However, in his defence, he did not adduce any evidence. The learned Speci

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