But as per Dr. Smt.
She being below 12 years of age, the learned Sessions Judge satisfied himself that she was capable of testifying as a witness.
Hymen of her private part was intact.
ORDER The appellant herein was charged with companymission of an offence under Section 376 of the IPC for companymitting rape on a minor girl Sushama.
The mother of the prosecutrix had seen redness in her private part as also blood companying out therefrom.
Yet again she had number been cross examined on the said point.
The learned Trial Judge failed to companysider the effect of number cross examination of the prosecution witness in regard to the subject matter of offence.
Jain in her evidence did number tell this that blood was oozing from the private part of Sushama.
Hence, on the basis of the redness only numberpresumption of companyabitation can be reached.
The appellant taking advantage of the absence of the parents of the prosecutrix, came there, took her to Tapariya, put off her Chaddi and he also pulled down his trousers and sat upon her.
First Information Report was lodged on the next day i.e. on 3.1.1995.
After the incident my father reached there, I narrated about the incident to my father.
Sunita Jain examined her.
Guddu sat over me by removing my underwear.
PW 3 is the grandfather of the prosecutrix.
Swelling was there over her private part and that became red.
About one year before at 10 11 A.M. When I was returning home after working on Kothi No.28.
Dr. Smt.
In her evidence, the prosecutrix stated On that Tapariya was closed, which Guddu opened.
The learned Trial Judge, however, recorded a judgment of acquittal opining But, here that principle is number applicable because as per prosecution account explicitly companymitted rape over Sushama, and adduced the evidence that accused companymitted rape over the prosecutrix.
When her grandfather came, he fled away.
They had been occupying a portion of the premises belonging to the father of the appellant herein, as tenant.
Later on he put off his pant and put off my underwear and sat over me.
He was also number cross examined.
Mukesh is my son.
Hymen of her private part became red.
I know the accused earlier before one year.
In her evidence she stated I medically examined Sushama D o Mukesh on 3.1.1995 at 12.15 numbern and found numberany external injury over her body.
In her examination in chief, she stated Sushama is my daughter.
Therefore, we came back home at 10 a.m. Sushama told that Guddu opened the lock of Tapariya, put off my underwear and sat over me.
If accused would have companymitted rape on the prosecutrix then the hymen of private parts of Sushama would have ruptured.
I and my husband went out for labour work.
The mother of the prosecutrix also examined herself as PW 7.
Sushama is my granddaughter.
I told all about facts to my husband.
On that day we did number get labour work.
When the parents of Sushama came back, they were informed about the said incident by her.
I was medically examined.
When I came, on that point of time Guddu came out from Tapariya, when I caught hand of Guddu then he shown me knife.
Apart from the mother and grandfather, the prosecutrix examined herself.
1995, they had gone out of their house in search of work.
On the aforementioned statement she was number cross examined.
Blood was stained in the underwear of Sushama.
On 2.1.
The only question which was put to PW 2 in cross examination was a suggestion which was in the following terms By biting of ant, swelling and redness may companye at 3 4 places of the private parts.
Sushama was all alone in the house.
Her parents are labourers.
His evidence before the learned Trial Judge was as under I know Sushma, Mukesh and Guddu.
At home Sushama told me that Gudu came.
He opened the look of Tapariya, took me inside.
Jain hymen of private part of Sushama was intact.
There are so many reasons of redness over private part.
The said doctor was examined before the learned Trial Judge as PW 2.
The prosecutrix was sent for medical examination and one Dr. Smt.
