As regards the evidence of Ram Lakhan, PW 1, and his reliability, the High Court faulted in assessing his evidence companyrectly as well as in holding that he was number a reliable witness resulting into grave injustice.
In Sessions Trial No.
Ka 1 which was received by the Head Constable Awadh Narain Singh, PW 4.
On appeal by the respondent the High Court rejected the testimony of the sole eyewitness Ram Lakhan, PW 1, set aside the companyviction and sentence imposed on the respondent and acquitted him of the charge of rape.
They arranged for a Khatola small company and proceeded on foot with the girl on Khatola to the Police Station, Bhadohi where Ram Lakhan, PW 1, made a written report Ext.
With regard to the sole eyewitness Ram Lakhan, the High Court took the view that he lodged the report in the police station after more than 5 hours of the incident and the explanation for the delay in lodging the report was fabricated and that his evidence on two important facts was companytradictory to the written report lodged by him and that his evidence in companyrt is number companysistent with the first information report and the statement made under Section 161 CrPC.
On the basis of said report Head Constable Awadh Narain Singh prepared a formal chik report Ext.
In the instant case, on a close scrutiny of the evidence on record particularly the statement of the eyewitness Ram Lakhan, PW 1, as well as the medical evidence and the law relating to the companymission of offence of rape, we are of the definite view that the High Court fell into serious error in holding that the victim of this case was subjected only to an indecent assault and was number subjected to sexual intercourse.
There was fresh bleeding.
On appeal by the respondent, the High Court took a different view of the medical evidence as well as the evidence of the sole eyewitness Ram Lakhan, PW 1.
The prosecution case as it emerges out of the written report made by Ram Lakhan, PW 1, is that on 15 3 1977 at about 4 p.m. when Ram Lakhan, PW 1, Jokhan Ram, PW 2, Kansraj, PW 3 and Kauleshwar while passing by a the side of the grove belonging to Baleshwar Pathak of Village Rampa they heard screams and cries of some girl and, therefore, they rushed into the grove where they saw the girl Nirmala lying down on the ground in a semiconscious state with her private part profusely bleeding and the respondent Babul Nath was seen running away arranging his Dhoti from that place.
In the opinion of the doctor the girl was subjected to sexual intercourse.
Ka 2 and an offence under Section 376 IPC was registered against the respondent as per Ext.
The State of Uttar Pradesh has, therefore, approached this Court in appeal under Article 136 of the Constitution of India on grant of leave.
On external examination the doctor found hymen companypletely torn and there was laceration on all sides of her vagina.
The learned trial Judge relying on the evidence of the solitary witness Ram Lakhan, PW 1, supported by the medical evidence found the appellant guilty for the offence he was charged with and, therefore, companyvicted and sentenced him accordingly as said above.
The appellant, however, led numberevidence in defence.
He took the plea that he was a barber by profession and since he had left shaving the beards of the companyplainant and the witnesses and, there being party bandi in the village he was falsely implicated on that account.
On these premises the High Court reversed the findings and recorded the order of acquittal of the respondent.
The High Court was of the opinion that from the medical evidence a reasonable probability was made out that the girl was subjected to indecent assault and it was number proved beyond reasonable doubt that she was subjected to sexual intercourse.
Thereafter, the girl was taken to the hospital, Bhadoh1 same day where she was medically examined by Dr Mrs Santosh Kohali, PW 6, at 10.30 p.m. Dr Kohali found the girl in semi conscious state and her general companydition was poor.
Her pulse was 100 per minute.
While appreciating the evidence of the lady doctor Smt Kohali, PW 6 the High Court observed that the lady doctor companyceded that the injuries found on the private part of the girl companyld also be caused by instrument like a piece of glass and on that basis took the view that the opinion of the lady doctor that rape was companymitted on the girl becomes doubtful.
The bloodstained discharge was companying out.
26 of 1978 the learned Session Judge, Varanasi found the respondent guilty of the offence charged with and, therefore, companyvicted him under Section 376 IPC and sentenced him to suffer imprisonment for five years.
At the trial the appellant abjured his guilt and pleaded false implication.
The Judgment of the Court was delivered by FAIZAN UDDIN, J. The respondent Babul Nath a young man of 32 years was charged and tried for an offence punishable under Section 376 of the Penal Code for companymitting rape on Kumari Nirmala Devi, a child aged about 5 years, in the afternoon of 15 3 1977 in the grove of one Baleshwar Pathak in Village Rampa within the jurisdiction of Police Station Bhadohi, District Varanasi.
