JUDGMENT

R. C. LAHOTI, J. — The accused-respondent was charged under Section 376, IPC for having committed forcible sexual intercourse with the prosecutrix, a girl of the age of 5 years and 6 months, on 29-10-1991 at about 6.30 p.m. at village Baru. On trial, the learned Sessions Judge found the accused guilty and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 5000 and in default of payment of fine to undergo rigorous imprisonment for a further period of 6 months. The amount of fine, if realised, was directed to be paid to the mother of the prosecutrix. The accused-respondent preferred an appeal. A Division Bench of the High Court has by judgment dated 22-12-1995 allowed the appeal, set aside the conviction and directed the accused-respondent to be released. Feeling aggrieved thereby, the State of Himachal Pradesh has come up in appeal by special leave which has been granted.

2. PW 1 is the mother of the prosecutrix. Her husband had expired a few years before the date of the incident. She was residing in the family house. However, her father-in-law, her two brothers-in-law and she herself had separated in residence and they were living in three separate portions of the house. PW I has a son and two daughters. The prosecutrix is the youngest of the three children. The accused is the brother of the wife of PW 1’s brother-in-law i.e. jeth or her deceased husband’s brother. The accused, being a relation, was often visiting the house. According to the prosecution on the date of the incident PW 1 had gone to the fields for collecting grass. Her son and the elder daughter had accompanied her. They returned home at about 7 p.m. PW 1, on her return, found her youngest daughter lying below a cot on the lintel of the house. Her salwar and shirt were having bloodstains. There was blood on the bedsheet and a towel lying on the cot. She looked into the private parts of the victim child and found blood and inflammation therein. On being asked, the prosecutrix told the mother that when she was playing the accused had committed bura kaam (a sinful act) with her. The mother, PW 1 told about the incident the next morning to her parents-in-law and co-sister (i.e. husband’s brother’s wife). The father of the accused was summoned and was told of what the accused had done. The father of the accused defended his son saying that he could not have indulged in such a wrongful act. On the third day, in the morning hours, when PW 1 was going to the police station, Ruldu Ram, PW 9, a member of the Village Panchayat met her on the way and agreeing with her advised PW 1 to lodge a report with the police. The FIR of the incident was lodged in the morning of 31-10-1991. An offence under Section 376, IPC was registered and the investigation commenced.

3. On 31-10-1991 at 12.15 p.m. Dr Mudita Gupta, PW 5 conducted medico-legal examination of the prosecutrix and found the following injuries on her person :

“Local exam — no external injury.

On retracting the labia — erythema seen.

Hymen tom — irregular edges.

Posterior vaginal wall tear about 0.5 cm in length.

No blood clot seen. No evidence of healing, no pus seen - foul smell.

Tenderness. No sperms were seen.”

4. The observations noted by Dr Mudita Gupta were that the prosecutrix had changed her clothes and taken a bath also on the next day of the incident. The victim had passed urine and stool about one hour after the incident. There was no external injury on any part of the body of the victim. Dr Mudita Gupta opined that possibility of commission of rape on the prosecutrix on 29-10-1991 could not be ruled out.

5. The accused was arrested on 31-10-1991 and subjected to medico-legal examination on the same day. Dr Jagdish Gupta, PW 6, who examined the accused, recorded the result of his medico-legal examination as under :

“The general behaviour of the patient was normal. The mental condition was normal. Bath not taken for the last five days. Urine