JUDGMENT :

Jasjit Singh Bedi, J.

The present appeal has been filed against the judgment of acquittal dated 12.09.2003 passed by the Addl. Sessions Judge, Faridabad.

2. The FIR was registered on 07.03.2000, the judgment of acquittal passed by the Addl. Sessions Judge, Faridabad is dated 12.09.2003, the appeal was filed on 11.12.2003 and the matter is being taken up for hearing now after a period of more than 25 years of the registration of the FIR.

3. The prosecution case is that on 05.03.2000 at about 2.00 P.M. Malho wife of Tej Pal, resident of Immamuddenpur had gone to the forest. When she was cutting wood, the accused came from behind caught hold of her, gagged her mouth and committed forcible sexual intercourse with her. The alarm raised by Malho attracted Desh Raj son of Sullar and Ram Singh son of Sri Chand, both residents of Chandpur, to the spot. When the accused saw them coming, he fled away. The matter was reported to Police Post Chandpur but, instead of taking action, the police scolded Malho. Resultantly, she moved a complaint before the Superintendent of Police on 07.03.2000. The complaint was forwarded to the S.H.O. Police Station Chhainsa whereupon the case was formally registered. Medico-legal examination of Malho was got conducted. The accused was arrested on 09.03.2000. He was also got medico-legally examined.

4. On completion of investigation, the charge-sheet was submitted. On commitment, there being prima facie case, charge under Section 376 of IPC was framed against the accused, to which he pleaded not guilty and claimed trial.

5. To prove its case, the prosecution examined PW1 Dr. Vina Rastogi, who medico-legally examined the prosecutrix; PW2 Dr. Kamal Satyarthi, who medico-legally examined the accused; PW3 Ranbir Patwari who prepared the scaled map of the place of occurrence; PW4 Keshav Ram Sub Inspector, who sought medical opinion as to whether the accused was competent to commit sexual intercourse or not; PW5 Mallo, the prosecutrix herself; PW6 Ram Chander, an eye witness; PW7 Ramwati, the mother-inlaw of prosecutrix; PW8 Rajinder Singh constable, in whose presence the vaginal swabs were taken in possession by police and PW9 S.I. Vishnu Dutt, the Investigating Officer.

6. The gist of the prosecution evidence is as under:-

Dr. Vina Rastogi the then Medical Officer Incharge CHC Kurali medico-legally examined the prosecutrix aged 23 years and found the following injuries:-

'1. No stain mark on clothes. However, the clothes worn by the victim were preserved in packets containing six seals for handing over to police.

2. Secondary sex character were well developed. There was no violence mark over wrist, Breast, back, front face, thigh or any other part of the body. There was no difficulty in walking or pain in micturition/defecation. Gait of victim was normal.

3. No mark of injury abrasion on vulva, thighs no bleeding per vagina. No dried blood over vulva pubic hair not matted. Pubic hair cut and sealed in a bottle containing one seal.

However nothing was found to suggest that the rape was not performed under strict definition of later.

Hence in my opinion possibility of rape cannot be ruled out.'

She produced the photocopy of the MLR Ex.PC. In cross-examination, she stated that it was correct that no injury was found on the person of the prosecutrix at the time of examination. She also stated that it was not necessary that scratches or abrasions were to be found on the person of the prosecutrix if sexual intercourse was committed on a hard surface.

Dr. Kamal Satyarthi, Medical Officer, CHC, Kurali was examined as PW2. He stated that on 09.03.2000, he medico-legally examined Chhattar S/o Atri aged 24 years and found the following injuries:-

'1. Healing lacerated wound 1.5 c.m. x 0.5. cm skin deep in size of irregularly star shape just about the outer endleft eyebrow.

2. Healing abrasion 3 cm x 1 cm situated on the back of the right shoulder.

3. Multiple stretch marks 1 cm x 0.5 cm to 10 cm X 0.5 cm irregularly linear with pa