The State of U.P. vs Chhatrasal Singh

K.S. Rakhra, J.—This is an appeal u/s 378(1) of Criminal Procedure Code against the judgment and order dated 17.1.1983 in Sessions Trial No. 54 of 1982 passed by additional Sessions Judge Lalitpur, whereby respondent Chhatrasal was tried for an offence punishable u/s 376 IPC and has been acquitted by the trial court. Leave to appeal was granted by the High Court on 29.10.1984 after condoning the delay.

The case arises out of the incident which took place on 30.9.1980 at about 4.00 p.m. in village Khiriya Chhatara of Police Station Wanpur District Lalitpur. The first information report in the matter was lodged by Km. Kantoo, the victim herself at Police Station Lalitpur on 1.10.1980 at 7.15 a.m.

The victim at the time of incident was aged about 11-12 years. Her father & mother had gone to Lalitpur and brother to fields and she was alone in her home. It is alleged that at about 4.00 p.m. respondent Chhatrasal Singh who was Ex-village Pradhan went to the house of victim and lifted her in his arms and brought her to his house where he committed rape on her. After the victim was ravished, she returned to "herhouse. Subsequently when her uncle Mukundi P.W. 2 returned from the fields, she narrated her tale to him. People from neighbourhood also gathered and had seen that she was lying on a cot and was bleeding from her vagina. Ram Das Chaukidar of the village was called and with the help of villagers, the victim was brought to Lalitpur being carried on the cot itself. She was brought to Lalitpur instead of Wanpur the concerned police station because of better medical facilities at Lalitpur. At police station Lalitpur she lodged F.I.R. Ex. Ka.2.

From the police station Kotwali Lalitpur the victim was sent for medical examination after the first information report was registered,

Smt. S. Kaur, Medical Officer Mahila Chikitsalaya Lalitpur conducted medical examination of Km. Kantoo at about 9.00 a.m. on 1.10.1980. The doctor found that victim was thin built girl aged about 10 years with her weight being 23 Kg. and teeth 13-13, breast started developing while axillary & pubic heir had not developed. The doctor also found clotted dry blood on her private parts, back of the buttocks top to the toe of the both feet. Following injuries were found on her person.

Superficial injury on the back bone, about 25 cm from the base of the neck, 2 cm x 3 cm with scab formation thereon.

In further examination, the doctor noted thick dark coloured blood coming out from the vagina, area around the labia minora was reddish and pained on touch. Labia majora and minora were also painful on touch. Hymen was ruptured at four places with smooth edges and bleeding was noticed. The vagina admitted one finger. Slides of blood discharge from vagina were prepared and sent for pathological examination to find out the presence of spermatozoa. In the opinion of the doctor, the vaginal injury was caused by some soft & blunt organ. The injury was simple and one-two days old. On the basis of pathological report, supplementary medical report was prepared. No spermatozoa was seen on the pathological examination hence no definite opinion about rape could be given.

Since the incident was reported to Kotwali Lalitpur while the place of occurrence was within the circle of Police Station Wanpur, the police of police station Kotwali sent copy of the Chik FIR and GD entry along with material exhibits to police station Wanpur where it was registered as Crime No. 79/80 and the investigation was taken up by S.I. Baboo Ram Sharma (P.W. 5). The investigating officer recorded the statement of Mukundi (P.W. 2) Ram Das Chaukidar, Pratipal Singh who had accompanied Mukundi and the victim to the police station. He also visited the place of occurrence and collected blood stained and plain earth from the house of the victim where she lay down on a bare cot after the incident and was bleeding. On 3.10.1980 he interrogated the victim Km. Kantoo at Lalitpur District Hospital where she was admitted for treatment. On 10.10.1980 he made a spot inspection with the assistance of victim Km. Kantoo and prepared site plan Ex.Ka.8. The accused Chhatrasal had absconded and therefore a warrant of attachment was issued and his property was attached. Subsequently he surrendered in the court and was sent to jail. The investigating officer submitted charge sheet against Chhatrasal on 2.11.1980.

The respondent Chhatrasal was charged u/s 376 IPC. He pleaded not guilty and claimed to be tried. The prosecution in order to bring home the charge examined six witnesses in the trial. Narendra Singh (P.W. 1) is a resident of the same village. He deposed that on the fateful evening he had gone to the house of the victim. The victim''s father Khuman, Mukundi P.W. 2 and some other persons namely Khare, Shadi, Parsadi, Jumman and Goman are all weavers and they have their house adjoining one another and the house of Chhatrasal accused used for tethering cattle. Dividing wall between the cattle house of Chhatrasal and campus of weavers house was partly damaged making an opening of 4'' x 4'' which has been shown by the investigating officer in site plan Ex.Ka.7 and it is from this, the accused is said to have gone to the house of the victim for commission of this crime. Narendra Singh P.W. 1 deposed before the trial court that he had gone there in search of some labours but could not find any body in the campus. He had seen Km. Kantoo lying on a bare cot in "Osara" in front of her house. He had seen accused Chhatrasal making entry in the campus of weavers through an opening in the dividing wall. Next day he came to know that Km. Kantoo has been ravished. He also deposed that third day on 2.10.1990 the investigating officer visited site and in his presence he had collected blood stained and plain earth from the " Osara". According to this witness Pratipal Singh who had accompanied Mukundi and the victim to the police station for lodging FIR was his uncle.

Mukundi P.W. 2 is uncle of the victim who deposed in the trial that the victim was alone in her house. Her parents had gone to Lalitpur. He had returned from fields to his house at the sunset and found the victim lying on a bare cot and was crying. She was also bleeding from her private part. She disclosed to him that Pradhan Chhatrasal had lifted and taken her to his cattle house. There he removed her under wear and ravished her. The witness has stated that the victim was then shifted to Lalitpur on the cot itself with the help of Chhimariya, Pratipal Singh, Ram Das Chawkidar and the victim lodged first information report at police Station Kotwali Lalitpur. The witness has clarified that Lalitpur was at a distance of 5 Kos (about 10 miles) whereas Wanpur was about 8 miles. They had preferred to go to Lalitpur in the hope of better medical facility as compared to Wanpur. He further deposed that the distance between the village and Lalitpur was about six hours walk. They had started for Lalitpur after sunset when it had become dark. According to him, by the time they could reach police station Lalitpur, the sun was rising. They waited at Lalitpur for sunrise before they reached the police station. This witness was suggested that he was deposing on account of "partibandi" which he denied.

Head Constable Ram Pal Singh P.W. 3 was constable at Police Station Lalitpur on 1.10.1980 and had registered the first information report u/s 376 IPC at the instance of the victim Km.Kantoo. According to him she was sent for medical examination after the first information report was registered. He stated that the victim was minor girl and therefore, he had asked her as to what had happened and in the manner in which she narrated the incident, he prepared the Chit report. In the cross examination witness stated that keeping in view honour and modesty of the lady, he had noted only apparent injuries on person of the victim and had not gone to make further probing of the person of Kantoo. He had not noticed any injury nor had noted that she was bleeding from her private part.

Km. Kantoo P.W. 4 is victim herself. She is wholly illiterate girl and the trial court had noted that tears were tickling down on her cheeks when she appeared to depose in the court. She stated that her parents had gone to Lalitpur and brothers had gone to fields. Her uncle Mukundi and aunt had also gone to fields. She was alone in the house and was lying on the cot in "Osara" when accused Chhatrasal came there and tried to seduce her to accompany him. On her refusal he lifted her and carried her to his cattle home. Where she tried to raise alarm he closed her mouth with his hands. In cattle house he threw her on the ground and removed her undergarment and undressed himself. He threatened her that if she would complain about this conduct he would kill her and bury under the ground. The accused had pressed his hand on the mouth of the victim and thereafter raped her. She deposed that act of the accused cause lot of pain and she started bleeding. After she was ravished, the accused returned her to her home through the opening in the dividing wall. She on return lay on the same cot and was bleeding from her private part and the blood trickled on the ground as well. Later, her uncle Mukundi came back from the fields and seeing her condition he - asked as to what had happened, she narrated the entire tale. She also narrated entire incident to Ramdas Chaukidar, Hanna, Prithpal etc. who assembled there on getting information. She corroborated the testimony of Mukundi P.W. 2. She was brought to Lalitpur Kotwali on cot where she lodged report and was sent for medical examination by the police. She was admitted in the hospital for treatment. According to this witness there are other house of Khare, Prasadi, Jumman and Natthoo in the vicinity of her house. All the persons from these houses and their children had gone to the fields and were not present at the time of incident near the place of occurrence. In fact persons from these houses P" used to go to fields in the morning itself and nobody returned to his house during day time and they used to return to their homes only in the *- evening. This witness stated that she remained in the hospital for 10-15 days. Her father Khuman had reached in the hospital on the same day. She had narrated the incident to her father in the hospital same day.

Babu Ram P.W. 5 is the investigating officer who had deposed that he had examined the witnesses and filed charge sheet as mentioned earlier. Since at police station Wanpur the case was registered on 2nd October 1980, he had recorded the statement of Narendra Singh P.W. 1 and Mukundi P.W. 2 on 2.10.1980 in the village itself. According to him from the statement of these two witnesses, Mukundi and Narendra he could not conclude where the incident had taken place. He had made the spot inspection and prepared the site plan at the pointing of Kantoo P.W. 4 on 10.10.1980. He had seen broken dividing wall next to which was the cattle house of the accused.

Dr. Smt. S. Kaur had conducted medical examination of the victim and had given her medical report which has been discussed earlier in the judgment. She had also given supplementary medical report which too has been discussed earlier.

The accused had not led any evidence in defence but had stated u/s 313 Cr.P.C. that he had been falsely implicated on account of old enmity with Narendra Singh P.W. 1 and his uncle Pratipal Singh. He was village Pradhan for 25 years but had lost election in the year in which the incident took place.

The trial court after appreciating above evidence came to the conclusion that Narendra Singh P.W. 1 has enmity with accused. The documentary evidence Ex. Ka. l to Kha 5, produced by the defence in the case satisfied the trial court that Chhatrasal as village Pradhan had initiated proceedings against Pratipal Singh uncle of Narendra Singh P.W. 1 for vacating the gaon sabha land which who had been trespassed. The trial court expressed the opinion that testimony of Narendra Singh P.W. 1 was not a direct evidence of commission of crime by the respondent and further that it was not reliable on account of his enmity with the accused.

Testimony of Mukundi P.W. 2 has been discarded by the trial court with the observation that he is not an eye witness although he had reached the place of occurrence after about one hour of the incident and had deposed that he had found Km. Kantoo lying on the bare cot bleeding from her private part. He also deposed that chaukidar was called and Km. Kantoo was shifted to Lalitpur where she has lodged the report.

Testimony of Km. Kantoo P.W. 4 was discussed by the trial court in the light of medical evidence adduced by the prosecution. It laid emphasis on the medical report which was to the effect that hymen was torn at four places and its edges were smooth & bleeding. The vagina admitted one finger and no spermatozoa was found in the vagina.

The trial court has mentioned in its judgment that the absence of spermatozoa in the vaginal smear creates suspicion because according to medical jurisprudence spermatozoa remain alive for 17 days. In the absence of spermatozoa, it concluded that sole testimony of Km. Kantoo relating to rape on her also falls under doubts and suspicion. With regard to laceration and injury on hymen, it conjectured that hymen could have been torn on account of some injury suffered by the victim. It also doubted the prosecution story on the ground of delay in lodging the first information report. According to the trial court it was possible for the victim to have lodged report on the day of the incident itself by 10-11 p.m. The delay in lodging of the first information report provided opportunity for consultation and concoction. The trial court also found contradiction in the statement of Mukundi P.W. 2 and Km. Kantoo P.W. 4 as to when did Kantoo''s father came to know about the incident. It also observed that the medical report of injuries on other parts of the body does not tally with the mode of commission of the incident as given in the first information report. This inference was drawn by saying that medical report does not show any injury on the victim otherwise than on her private part. It was observed that there was no injury suffered by the victim on account of being thrown by the accused on the ground. The trial court laid emphasis on the facts that no blood stained and plain earth was collected by the investigating officer from the place where the victim is stated to have been ravished. The delay in identifying the place where the victim was ravished also was suspicious circumstances according to the trial court.

On the basis of this analysis of the prosecution evidence, the trial court concluded that the prosecution evidence was not free from suspicion and therefore, giving benefit of doubt, it acquitted the respondent Chhatrasal.

Sri P.S. Pundir, learned AGA challenging the conclusion drawn by the trial court argued that the judgment of the trial court is based on surmises and conjectures. The trial court wholly misdirected itself by - drawing adverse inference on account of want of spermatozoa in the vaginal smear. The trial court also gave undue weightage to ignorable contradictions and had failed to appreciate prosecution evidence in legal manner. It was argued that the case is proved beyond doubt and the trial court committed illegality in recording acquittal.

Learned Counsel for the respondents on the other hand argued that the trial court rightly drew proper inference on account of delay in lodging of the first information report and want of spermatozoa in vaginal smear. There are material contradictions in the statement of the witnesses and no blood stained earth was found at the place of occurrence and there was no injury suffered by the victim on any part of her body except vagina. Injury suffered at vagina might have been caused in other manner so accidently and the accused respondent had been falsely implicated at the instance of P.W. 1 Narendra Singh and his uncle Pratipal Singh.

We have given careful consideration to the arguments of both sides and have thoroughly examined entire evidence on record in light of cardinal rules which have to be kept in view in appeal against acquittal. We are conscious of the fact that there is presumption of innocence in favour of the accused and this presumption stands fortified and strengthened by order of acquittal passed in his favour by the trial court. It is settled law that if two views of the matter are possible, the one which favours the accused has to be adopted. We are further conscious of the fact that the trial judge has the advantages of looking at the demeanour of witnesses and that the accused is always entitled to benefit of doubt which should be such as the rational thinking person will reasonably, honestly and conscientiously entertain and not of a irrational mind. Reference can be had to the case of State of Uttar Pradesh Vs. Samman Dass,

It has been held in the case of Ajit Savant Majagavi Vs. State of Karnataka, . that in an appeal against acquittal, the High Court possesses all powers and nothing less than the powers it possesses while hearing an appeal against an order of conviction. It has the power to reconsider the whole issue, reappraise the evidence and come to its conclusion and the findings in place of findings recorded by the trial court if the said findings are against the weight of evidence on record or in other words is perverse. Therefore, before reversing the finding of acquittal this Court has to consider the grounds on which order of acquittal was based and to record own reasons for not accepting those grounds and not subscribing to the view expressed by the trial court. Same view was taken by the Apex Court in the case of C. Antony v. K.G. Raghavan Nair 2003 C LJ 411.

After examining the entire evidence adduced in the case by the prosecution and also documentary evidence adduced by the defence we are of the definite view that the finding recorded by the trial court and the order of acquittal passed thereunder are against the weight of evidence on record and is perverse. The trial court has rejected the prosecution evidence without sufficient reason and the doubt entertained by it of which benefit has been given to the accused respondent in our opinion is not such as a reasonable person shall honestly and conscientiously entertain as to the guilt of the accused.

As discussed earlier, in this judgment the victim of rape in this case is a minor girl who was hardly aged about 11-12 years of age. She is wholly illiterate and on medical examination she was found to be thin built, her breast had only started developing while axillary and pubic hair had not developed as yet. She has categorically stated that she alone was present in her house and her parents had gone to Lalitpur while her brother had gone to fields and all other persons of the houses in the neighbourhood belonging to weaver community had also gone to the fields with their children. It has also come in her testimony, corroborated by the spot inspection made by the investigating officer that there was an opening in the wall dividing the cattle house of accused and the house of the weaver community. She has deposed before the court that accused reached her house in the evening and tried to seduce her and asked her to accompany him. On her refusal, he forcibly lifted her in his arms and when she attempted to raise alarm, her mouth was shut by pressing hand against it. In these situation she was taken to the cattle house of the accused where he threw her on the ground and undressed her and himself and committed rape. She also stated that the act of the accused caused lot of pain and she started bleeding from her private parts.

Her testimony gets corroboration from the fact that she was found bleeding from her private part when her uncle Mukundi P.W. 2 arrived at home in the evening. She narrated the entire incident to Mukundi. Mukundi in this regard deposed that when he returned to his house, he found Kantoo lying on a bare cot and she was crying in pain. She had clothes on upper part of the body and was naked down her waist. Blood from her private part had trickled on the ground through the matting of the cot. He confirmed the fact that Kantoo had narrated the entire incident and had told her that she had been raped by Chhatrasal. The investigating officer had visited the place of occurrence on 3rd of October 1980 and he had collected blood stained and plain earth from the "Osara", of the victim''s house.

In addition to the above corroborative circumstances there is testimony of Dr. S. Kaur P.W. 6 who had medically examined Kantoo on 1.10.1980 and had issued medical report Ex. Ka. 9. According to this report and the testimony of the witness, clotted dry blood was present on the private part, back of the buttock top to the toe of the both feet of Kantoo. Dr. also found that the hymen had been ruptured at four places. Edges of the injury were smooth & bleeding was noticed. Doctor also found thick dark colour blood coming out from vagina. Area around the labia minora was reddish and found painful on touch. Labia majora and minora were also found painful on touch. All these injuries and condition of vagina coupled with bleeding clearly and very strongly corroborate the testimony of Km. Kantoo P.W. 4. In the opinion of the doctor, this injury was 1-2 days old which also corresponds to the time of incident alleged by the prosecution. Not only this, doctor found superficial injury on the back bone of the victim which was 2 cm x 3 cm, 25 cm away from the base of the neck. Presence of this injury corroborates the testimony of Kantoo P.W. 4 that she was thrown on the found by the accused and thereafter she was raped.

The above evidence, to be more specific testimony of Kantoo P.W. 4 corroborated by medical evidence, testimony of Mukundi P.W. 2 and the circumstances referred to above in our opinion establish beyond any iota of doubt that Kantoo P.W. 4 was ravished by accused respondent Chhatrasal. There is absolutely no circumstance to create any doubt in the truth of her testimony much less a reasonable doubt.

There is also testimony of Narendra Singh P.W. 1 who deposed in the trial that at about 4.00 p.m. He had gone to the houses of weavers in search of some labour whom he wanted to engage and had seen accused Chhatrasal entering into the house of victim through opening in the dividing wall.

There is nothing on record to show that Km.Kantoo or his uncle Mukundi who had accompanied her to the police station to lodge the report had any reason to falsely implicate the accused. It is true that one Pratipal Singh who had also accompanied Kantoo and Mukundi to the police station for the purpose of lodging of the first information report is uncle of Narendra Singh P.W. 1. Chhatrasal accused was earlier Pradhan of the village The defence has filed documentary evidence Ex. Kha 1 to Kha 5 to show that Chhatrasal had initiated proceedings against Pratipal aforesaid for vacating Gaon Sabha land. The accused in his statement u/s 313 Cr.P.C. also stated that he has been falsely implicated on account of his enmity with Narendra Singh P.W. 1 and his uncle Pratipal Singh.

Having given due consideration to the aforesaid circumstances we are firmly of the view that even if there was enmity between the Chhatrasal and Pratipal or Narendra Singh, there was absolutely no occasion for Km. Kantoo or Mukundi to have falsely implicated Chhatrasal at the instigation of these persons. As stated earlier injury on the private part of the victim Km. Kantoo, her testimony corroborated by circumstances and medical evidence proves beyond doubt that she had been ravished. In the circumstance of the case, it is not possible to believe that she was raped by someone else but instead of proceeding against real culprit she would make a false accusation against Chhatrapal at the instance of Pratipal and Narendra Singh. Further even if we discard the testimony of Narendra Singh P.W. 1 on account of his strained relation with accused, the remaining evidence adduced by the prosecution in this case establishes beyond any iota of doubt that Chhatrasal respondent is the person who had committed rape on Kantoo.

The trial court strangely overlooked the above facts and circumstance and tried to ignore cogent evidence on flimsy reasons. With regard to testimony of Mukundi P.W. 2 observation of the trial court was that he is not an eye witness and the trial court proceeded to take up the testimony of Kantoo P.W. 4 describing her as sole witness of fact. The trial court failed to appreciate that Mukundi P.W. 2 had returned to his house after about an hour of the incident and had seen Km. Kantoo lying on a bare cot bleeding from her private part and she had at that time narrated the entire story as to what had happened with her. This narration having been made to her own family member who was in the capacity of guardian is very natural and probable. When Mukundi deposed in the court that Kantoo had narrated entire thing to him, his testimony and his observations lent corroboration to the testimony of Kantoo P.W. 4. The testimony of Mukundi P.W. 2 therefore, could not be undervalued or ignored on the ground that he was not an eye witness. It was a strong piece of corroborative evidence which was not given due weightage by the trial court.

With regard to testimony of Kantoo P.W. 4 the trial court against the evidence on record has come the conclusion that the testimony of Kantoo is not corroborated by medical evidence. The main reason on the basis of which the trial court has found the medical evidence not fully corroborating in the testimony of Kantoo is reliance placed it on the observation of Dr. S. Kaur P.W. 6 that it is very difficult to say whether rape was committed on her or not. Dr. S. Kaur had said so when on pathological examination of vagina smear slides no spermatozoa was seen. The trial court observed that spermatozoa remained alive upto 17 days and therefore, their absence in the vaginal smear creates doubt about the commission of rape.

The above finding of the trial court is clearly absurd and perverse. The trial court lost sight of the fact that the absence of spermatozoa is not a deciding factor while determining the question of rape. While presence of spermatozoa could have provided support to the prosecution story, it cannot be said that their absence creates any doubl about the truth of the prosecution version. Definition of rape is given in Section 375 IPC which describes six situations in which sexual intercourse by a man with a women amounts to rape. There is an explanation attached to the aforesaid definition which clearly states that penetration is sufficient to constitute sexual intercourse necessary to the offence of rape. In the case of Koppula Venkat Rao Vs. State of Andhra Pradesh, Apex Court has held that sine qua non of the offence of rape is penetration and no ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. It is not necessary for the offence of rape that even there should be complete penetration of the male organ in the private part of the victim with emission of semen and rupture of hymen. In the case of State of U.P. Vs. Babul Nath, it was held that partial or slightest penetration of male organ in the labia majora or the vulva or pudenda with or without emission of semen and even an attempt of penetration into the private part of the victim would be quite enough for the purpose of Section 375 and 376.

In view of above legal proposition conclusion drawn by the trial court on the basis of absence of spermatozoa in vaginal smear and using it as a base for entertaining a doubt in the prosecution story is therefore, wholly illegal and perverse. The trial court acted on surmises and conjectures when it tried to explain that tearing of hymen at four places could have occurred in some other manner or on account of some sort of injury. There was absolutely no justification for said conjectures.

The trial court also made observation that there was undue delay in lodging of the first information report. The police station was only 4-5 "Kose" i.e. about 8-10 miles from the place of occurrence and the first ''information report could have been lodged in the evening of 30.9.1980 itself. Since it was lodged on 1.10.1980 at 7.15 a.m., the trial court has inferred that there was undue delay which provides them opportunity of consultation and therefore, it creates doubt. This inference of the trial court also appears to be wholly unjustified and perverse. First of all, it was to be kept in mind that there was a single accused and the charge against him is of committing rape. The circumstances of the case are establishing beyond doubt that the victim was raped. In these circumstances what purpose could have been served by consultation or delay in lodging of the first information report ? On the other hand testimony of Mukundi P.W. 2 shows that when he returned home, he found Kantoo in very bad condition and she appeared to have exhausted on account of excessive bleeding. One can assess the situation and condition of Km. Kantoo from the fact that she had to be carried to Lalitpur on the cot itself. From the testimony of Mukundi P.W. 2 it is evident that although police station Wanpur to which this incident relates was nearer but they had left for Lalitpur because there was better medical facility available there. The victim her uncle Mukundi and other persons accompanied her to Lalitpur. A rustic villager Mukundi was also illiterate who has put his thumb impression on the testimony given in the court. From his statement and the statement of Kantoo P.W. 4 it is clear that they have left village Khiria after it had become dark and lamps had been lit in the houses. Mukundi P.W. 2 had staged that they reached Lalitpur early morning and waited for sometime near Ghantaghar at Lalitpur before fall of dawn where after they went to the police station and lodged the report. In these circumstances of the case, it cannot be said that there was an undue delay in lodging of the first information report. There was absolutely no chance of implicating any one falsely on the basis of prior consultation. The trial court took wholly absurd view of the aforesaid circumstances.

The trial court has also referred to statement of Mukundi P.W. 2 and Kantoo P.W. 4 and made observation that there is contradiction in the statement as to when Kantoo''s father came to know of the incident. Mukundi P.W. 2 stated that after lodging the first information report he returned back to his village where his brother Khumar, the father of Kantoo met and he narrated entire story to him. Km. Kantoo on the other hand said that she met her father next day at Lalitpur. We fail to understand how these statements are contradictory to each other and how adverse inference can be drawn against the prosecution on the basis of such contradictions. Kantoo was admitted in the hospital after medical examination at Lalitpur therefore, if she meets her father at Lalitpur on 2.10.80, there is no contradiction and no adverse inference can be drawn.

The trial court has come to another absurd conclusion by observing that the incident appears to be doubtful because no-one gathered when Kantoo raised alarm while she was being taken away by the accused. The trial court in our opinion totally lost sight of the geographical situation on the spot. Cattle house of the accused adjoins a cluster of house of weavers including the house of victim. The dividing wall between the cattle house of the accused and the house of the victim was partly broken. There was opening of 4 feet x 4 feet from which any person could pass and it is this opening from which the accused went towards the house of the victim. This opening has also been shown in the sight plan Ex. Ka. 6 by the investigating officer. The medical evidence and the report Ex.Ka.9 of the doctor that the victim was thin built girl aged about 10 years did not engage the attention of the trial court. Km. Kantoo P.W. 4 has stated that when the accused lifted her in his arms and she raised alarm, the accused shut her mouth by pressing his hand on mouth, clearly proves that the victim was a child and did not have much opportunity to raise alarm although she attempted to cry and sought help. Secondly the place from where she was lifted and where she was taken for the purpose of rape was situated between the cattle house of the accused and the cluster of the house of weavers who all had gone to the field. There was thus no-one around who could come to rescue the victim. The trial court therefore, was wholly wrong in interpreting above circumstance as an improbability. The trial court also drew a wrong conclusion, against evidence on record, that on the person of the victim there was no injury, corresponding to her statement that she was thrown on the ground by the accused with a view to rape. As we have mentioned earlier medical evidence clearly shows 2 cm x 3 cm superficial injury 25cm from the base of the neck of the victim. This has been mentioned in the medical report Ex.Ka.9.

Yet another absurd conclusion drawn by the trial court on misreading of evidence and mis-appreciation of evidence is that investigating officer found blood stained and plain earth on the ground only at the house of the informant and no blood stains were found or collected form the cattle house of the accused where rape was actually committed. The trial court attached undue importance to the statement of investigating officer that upto 10.10.80 he was not aware about the place where rape was actually committed. The trial court has observed that. place of occurrence is doubtful. This conclusion is also perverse because the investigating officer visited village Khiria on 2.10.80 and on that day Km. Kantoo was admitted at Lalitpur Hospital and was not available at Khiria. She was the only person who could have specifically shown the place where she was raped. Since she was at Lalitpur, admitted in the hospital, the investigating officer could not ascertain the actual place of rape. It is true that Km. Kantoo was interrogated by investigating officer at Lalitpur on 3.10.1980 but it was only on 10.10.1980 when she was relieved from hospital and came to village Khiria where she accompanied the investigating officer and on her pointing out the investigating officer prepared the site plan Ex. Ka. 7. Identification of actual place of rape on 10.10.80 was therefore, quite obvious and natural. If the investigating officer did not find any blood stain at that place after about ten days of occurrence no adverse inference could be logically drawn against the prosecution. The trial court committed gross illegality in drawing adverse inference.

From the discussions made above, we are of the definite opinion that there was no circumstance on the basis of which any prudent or rational person could have entertained doubt about the truth in the testimony of Kantoo P.W. 4. Her testimony was fully corroborated by medical evidence statement of Mukundi P.W. 2 and averments made in the first information report. There was absolutely no reason for false implication. The trial court in our opinion committed gross illegality and recorded a perverse finding in giving benefit of doubt to the aa. used and acquitting him of the charge u/s 376 IPC.

Resultantly we allow the appeal and set aside acquittal of the respondents Chhatrasal and hold him guilty of committing rape on Km. Kantoo a minor girl.

Since the respondent Chhatrasal Singh is being held guilty for the first time in this crime after 27 years of the date of incident, we deem it proper and necessary to give an opportunity to him to make submission on the question of quantum of sentence so that appropriate orders with regard to punishment may be passed. The respondent Chhatrasal who is on bail shall be taken into custody forthwith and we fix 8th October 2007 for hearing on the question of quantum of sentence. In the meanwhile if he is arrested, he shall be produced before this Court on that day otherwise we shall proceed to pass appropriate orders after hearing his counsel in this appeal.