Doraiswamy Raju JUDGMENT
R.C. Lahoti, J.
1. The accused-respondent was charged under Section 376 IPC for having committed forcible sexual intercourse with the prosecutrix, a girl of the age of the 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 year and to pay a fine of Rs. 5,000 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. PW1 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. PW12 has a son and two daughters. The prosecutrix is the youngest of the three children. The accused is brother of wife of PW1'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, PW1 had gone to the fields for collecting grass. Her son and the elder daughter had accompanied her. They returned to house at about 7 p.m. PW1, on her return found her youngest daughter lying below cot on the lintel of the house. Her salwar and shirt were having blood stains. There was blood on the bed sheet 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 that mother, that when she was playing the accused had committed "Bura Kaam" (a sinful act) with her. The mother PW1 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 total of what the accused had done. The father of the accused defended his son saying that he could not have indulged into such a wrongful act. On the third day, in the morning hours, when PW1 was going to police station, Ruldu Ram, PW9, a member of village Panchayat met her on way and agreeing with her advised PW1 to lodge the 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, PW5, conducted medico-legal examination of the prosecutrix and found the following injuries on her person :
Local Exam - No external injury.
On retracting the labia - erythematic seen.
Hymen torn - irregular edges.
Posteriors vaginal wall tear about 0.5 cm. in length.
No blood clot seen. No evidence of heating, no pus seen - foul s........