(1.) IT is now to be seen as to whether the offence u/s 376 read with section 511 I.P.C. is made out against accused/appellant Mahesh Prasad or not. Jayanti Bai (PW 1), prosecutrix is young girl aged about 9 years. Regarding the alleged incident of rape there are discrepancies in the version of the prosecutrix Jayanti. Jayanti (PW 1) has stated in her examination -in -chief that the accused had taken her to the Nala on a cycle and that he had taken off her Chaddi and Frock and had thrust them in her mouth and then he had got up on her and when she started crying the accused had beaten her and he had told her to let him once have intercourse with her and then they will go home and then the accused had inserted his male organ into her private part and then blood had started coming out from her private part. In cross -examination, however, this witness Jayanti has given an altogether different version and has stated that first the accused had made her sit in his lap and had kissed her and had started rubbing his hand on her chest and then he had slowly removed her chaddi and had then started inserting his finger in her private part and as soon as the accused had inserted his finger in her private part then the blood had started coming out and on seeing the blood she started weeping and then the accused made her put on her Chaddi and told her to go home. This version given by prosecutrix Jayanti in her cross -examination is quite different from her earlier version given by her regarding the incident in her examination -in -chief, and also from the report from the Ex. P -l lodged by her. Now question which arises for determination is as to whether the version given by the prosecutrix Jayanti (PW 1) is to be believed or her verion regarding the incident should be wholly disbelieved on account of discrepancies which have come in her evidence.
(2.) FROM the evidence adduced on behalf of the prosecution it is clear that a report (Ex. P -1) about the incident had been lodged without any delay on the same day just after the incident. It has also come in the evidence of some of the prosecution witnesses [Chenu (PW 2) and Om Prakash (PW 6)] that when the girl Jayanti Bai had been taken out from the well there was bleeding from her private Part. Jayanti (PW 1) was sent for medical examination and she was examined by Dr. R.G. Johari (PW 11) and on examination he found that there was bleeding from her private part and that her labia majora was swollen and labia minora were torn and hymen was also ruptured and its edges were swollen and plainful on being touched. According to Doctor Johari, there was signs of penetration on her private part. According to Dr. Johari, if a person cruelly and forcefully inserted his finger then such injury as was found on the private part of Jayanti Bai could come. Thus the version of Jayanti Bai (PW 1) about the accused haying inserted his finger in her private part on account of which there was bleeding in her private part appears to be true and so her evidence in this regard can be believed and acted upon. The version of the accused applicant that he has been falsely implicated in this case is not borne out from the evidence on record. Considering the version of the prosecutrix Jayanti (PW 1) given during the cross examination regarding the incident, in my opinion, the facts disclosed in para 10 of the deposition of Jayanti Bai (PW 1) at the most makes out a case u/s 354 IPC and not one u/s 376 read with section 511 IPC. The reasons given by the learned trial Court for finding the accused/applicant Mahesh prasad guilty of the offence u/s 376 read with section 511 IPC do not appear to be proper or conclusive for holding the accused appellant guilty of the offence u/s 376 r/w Sec. 511 IPC.