JUDGMENT :

Re: Criminal Appeal

1. No one is present on behalf of the appellant even in the revised call of additional cause list.

2. On perusal of the order sheet, almost on all occasions appeal is listed for admission and since 2013 itself either illness slip is sent or no one is present for the appellant. Accordingly, as observed in the order dated 9.5.2022, we proceed to consider the appeal on merits with the assistance of learned AGA.

3. Present Criminal Appeal under Section 372 Cr.P.C. has been filed against the judgment and order dated 11.9.2013 passed by the Additional District and Sessions Judge, Court No. 3, District Pilibhit in Sessions Trial No. 492 of 2013 (State vs. Mukesh Singh), arising out of Case Crime No. 201 of 2012, under Sections 376/511, 506 IPC, PS Sehra Mau, North District Pilibhit.

4. Prosecution story, in brief, on 20.6.2012 minor daughter Sandhya Devi aged about 11 years of the informant Anand Pal Singh was taken away by Seema (wife of the accused Mukesh) at her residence and thereafter she went to answers nature's call. In between accused Mukesh had taken her under the chappar (shed) by threatening her to kill her and raped her. Thereafter, the victim told her mother about strangulation and she was treated in the government hospital and when she did not get well, she told her mother about the commission of rape by accused Mukesh. Thereafter, her mother went to police station on 24.6.2012 and gave a written report for taking proper action against the accused. On that basis, a first information report being Case Crime No. 201 of 2012 was lodged on 24.6.2012 under Section 376, 506 IPC

5. In support of prosecution case, PW-1 Anagpal Singh (informant), PW-2 Uma Baksh, PW-3 Surendra Singh, PW-4 Km. Sandhya Devi, PW-5 Smt. Bitto Devi, PW-6 SI Rajendra Singh, PW-7 Dr. Anjali singh were produced and examined before the Court below. Medical report of the victim is Exhibit Ka-8. The Pathologist Report dated 25.3.2012 is also on record.

6. The judgment of acquittal was passed on the ground that the prosecution version has not been supported either by the oral evidence or by the medical report. As per prosecution case, the victim aged about 11 years old was taken by the wife of Mukesh Singh (accused respondent herein) to her residence and when she had gone out to answer the nature's call, the accused respondent Mukesh Singh committed rape on her. It was found that this story does not inspire confidence, as according to the medical report external and internal examination of the victim does not prove that any rape was committed on her. She was admittedly found minor aged about 12 years and was not having monthly cycle and her physique was not developed and there was no injury either external or internal on private parts and even the hymen was not torn and the finger test (as permissible at that time) also did not prove that rape has been committed or not. It was found that the allegation is that she was taken away by wife of the accused Mukesh on 20.6.2012, however, first information report was lodged after unexplained long delay of four days on 24.6.2012. It was also found that in her statement the victim herself had not supported the prosecution version and had submitted that she was being strangulated by accused Mukesh, therefore, she had levelled the allegation of rape against him. It was further found that she had admitted that she gave the statement as told by her mother. It was also found that there was a land dispute between the informant Anand Pal Singh and the accused Mukesh and they were not on even talking terms. Under such circumstances, it was found that the prosecution has failed to prove its case and judgment of acquittal was passed.

7. We have perused the record with the help of learned AGA.

8. In the memo of appeal, grounds to challenge the impugned judgment are that a too narrow and technical interpretation of the evidence has been taken and the same suffers from non-application of mind.

9. Before procee