STATE Vs. RAMESHWAR

JUDGEMENT

(1.) This is an appeal by the State against the order of the learned Sessions Judge, Sawai Jaipur and Gangapur at Jaipur acquitting the accused Rameshwar of the offence a under Section 376/511, Penal Code.

(2.) The accused, it may be pointed out, was tried for this offence in the Court of the Assistant Sessions Judge who convicted and sentenced him to one year's rigorous imprisonment and a fine of Rs. 250 and in default, rigorous imprisonment for six months. On the grounds mentioned by the learned Sessions Judge in his judgment with which we will deal elsewhere, he did not agree with the view taken by the learned Assistant Sessions Judge. Accordingly to the prosecution story, Mt. Purni, a girl of eight years of age, was living with her mother, Mt. Ghisi, in a house which is situate in the sama locality as and opposite to that of the accused Rameshwar., On 23-10-1946, sometime in the afternoon, when the incident took place, Mt. Ghisi happened to be away, as she had left in the morning for the field which is situate at a distance of more than a mile from her house. Her father, Laxminarain, also was not in the village as he had gone to Assam sometime back. She was playing outside her house along with two other girl friends, namely, Mt. Rukmini, a girl of fourteen years of age and Mt. Shanti. The village in which the houses of the girl and Rameshwar are situate is known as Nangal Jesa Bhora within the jurisdiction of Police Station Bagru. It is stated that while these three girls were playing together, the accused Rameshwair, standing on the roof of his own house, called them. Out of the three girls, however, he took Mt. Purni to his room and sent the other two girls away. In the room, there was a cotton mattress (Gadda) on which Mt. Purni was made to lie and an attempt to ravish her was made by the accused. She tried to cry but her mouth was gagged and after the act was over, she was allowed to go away. As she came down, she met P. W. 3 Harinarain and described to him what Rameshwar had done to her. The learned Public Prosecutor has not relied upon the statement of Harinarain and, therefore, we will make no further reference to him in this judgment. After coining down from the house of Ramashwar, she went to the Chabutri of her house and was found lying there when her mother, Mt. Ghisi, returned from the field at about 4 P. M. Mt. Purni related to her what had happened. No step were taken in connection with the incident that evening, but next morning, that is, on 24-10 1946, Ghisi took the girl to Jaipur to her brother, Gyasilal, but found him absent from the house. He, however, returned in the evening and the story was repeated to him. On 25-10-1946, all these three persona went to the Jaipur Sadar Police Station and the matter was reported but since the case related to the Police Station, Bagru, the report was forwarded there for necessary action and the girl was sent for medical examination to the doctor at Jaipur. The doctor, however, was not available and before the examination could take place, a constable took the girl and the mother to Bagru. From there, the girl was sent again to Jaipur for medical examination on 27th of October and a report to the following effect was made : "Hymen not patent and abrasions 1/2" x 1/4" on the medial surface of each labia minora at the lateral the lateral margin of attachment of hymen of hymen on either side. The whole of the ostiura vagina slightly congested. Vaginal swab taken with slides. Dried and moist yellowish white discharge."

(3.) During the investigation, the doctor was asked and stated in reply that penetration had not occurred. But he admitted in the witness box that if a person used force for the for the purpose of penetration, the injuries found on the person of Mt. Purni could be received. A slide of the discharge from the vagina was sent to the Chemical Examiner of Jaipur and according to his report (Ex. 10), she was found to be suffering from gonorrhea, The ghayhra, which had been taken possession of by the police at Bagru, was also sent to the Chemical Examiner and it was found to be smeared with blood. The accused could not be arrested as he was reported to have absconded and on 17-121946, he surrendered himself. He was sent to the doctor and was also found to be suffering from gonorrhea. Thereafter, the police took the investigation in hand and submitted the challan under Section 376/511 and Section 354, Penal Code and the case, on being committed, resulted in the conviction of the accused as stated above.