Amitesh alias Chhuttan Kori vs State of U.P.

Shiv Shanker, J.—This is the first bail application moved on behalf of the applicant involved in Case Crime No. 213 of 2006, under Sections 376 and 506, I.P.C., Police Station Bithur, district Kanpur Nagar.

Briefly, the prosecution case, according to the first information report, is that Km. Rubi, aged about 12 years, alongwith two children, were present at the house situate in village Tikra, Police Station Bithur, district Kanpur Nagar, on 19.11.2006 while her parents had gone to their fields situate in their ancestral village Juraopur, Police Station Shivli, district Kanpur Dehat for the purpose of working in the fields. She came out from her house at about 11.00 p.m. for the purpose of discharging urine. Same time, applicant came and met her, closed her mouth with handkerchief ; took her in the khandehar of Ram Kishore and tied her hands with angauchha and thereafter committed rape upon her without consent. Same time her neighbour Smt. Shiv Kanti wife of Ram Kishore come out from her house for attending the natural calls and saw the applicant. She stopped there. Thereafter, the applicant has extended threats to her for not disclosing the facts to any body else. Thereafter, Smt. Shivkanti went to the khandehar where the victim Km. Rubi was found in the state of unconscious and her clothes were disturbed. Km. Rubi was taken away by Smt. Shivkanti in the same condition to her house where she gained conscious and narrated the whole story to her regarding the occurrence. Next day in the morning (22.11.2006), the parents of the victim returned back to their house from the fields. Thereafter, the incident was told to them by her as well as Smt. Shivkanti. Thereafter, Lalu Prasad, the father of the victim, lodged the first information report against the applicant on 22.11.2006.

Heard the learned Counsel for the applicant and learned A.G.A. as well as perused the whole records.

It is contended by the learned Counsel for the applicant that no date and time was mentioned in the medical examination report of the victim. Consequently, by the order of the Court, date and time have been mentioned as 22.11.2006 at 2.00 p.m. while the first information report was lodged by the first informant on 22.11.2006 at 4.00 p.m. After lodging the report, the prosecutrix Km. Rubi was sent for medical examination alongwith a lady constable. Then how the time in the medical examination report has been mentioned at 2.00 p.m. Therefore, the report has been obtained by the first informant in manipulated manner. As such, the entire prosecution case becomes unreliable and falsified. It was also alleged that the prosecutrix was not produced for medical examination on that day and fabricated medical report was obtained from the doctor.

This contention has no force. The medical examination report was prepared by the doctor but the date and time was not mentioned by the doctor. It depends upon the experience of the doctor. There is evidence on record that she was sent for medical examination through case Kaymi G.D. after 4.00 p.m. Therefore, it is liable to be deemed that she was medically examined after 4.00 p.m. but the date and time were not mentioned in the medical report by the doctor. Later on, it appears that the time of 2.00 p.m. had been mentioned merely on the basis of imagination. On the other hand, there is documentary evidence that the lady constable brought the victim from the concerned police station after 4.00 p.m. Therefore, it is liable to be deemed that she was medically examined after 4.00 p.m. This is the mistake on the part of the doctor due to his inexperience.

It is further contended by the learned Counsel for the applicant that the height and weight of prosecutrix had been shown in the medical report dated 22.11.2006 as 147 cm. and 30 Kg. respectively. While in the report prepared by the Chief Medical Officer, height and weight have been mentioned as 141 cm. and 35 Kg. respectively. This is the medical discrepancy regarding the height and weight and much importance cannot be given to it.

It is further contended that the age of girl has been determined by the Chief Medical Officer about 15 years and the same can be extended two years either way and as such the same comes up to 17 years. Therefore, it makes clear that the prosecutrix is major and the complainant has prepared a false and concocted case of rape by stating his daughter to be minor. Therefore, she is 18 years old. Therefore, the version of the first information report is not corroborated with the medical report of the victim. It is further contended that no definite opinion regarding the rape has been given by the doctor in the medical examination reports as hymen had been ruptured and no spermatozoa have been seen in the medical pathological report.

This contention has no force. It has specifically been mentioned in the report of Chief Medical Officer that she was found aged about 15 years on the basis that her right elbow joint was fused but her right knee joint and wrist joint were not fused. Therefore, she could not be aged about 16 years. It is worthwhile to mention here that the date of birth of the prosecutrix has been shown in para 24 of the affidavit filed in support of the bail application as 8.10.1991 according to the records of Junior High School, Tikaria. This incident had allegedly taken place on 19.11.2006. On the basis of such education certificate, as mentioned in para 24 of the affidavit, the prosecutrix is below 16 years and, thus this date of birth supports the version of the report of Chief Medical Officer regarding the age of prosecutrix. Therefore, it appears that the prosecutrix is below the age of 16 years and the benefit cannot be given to the applicant regarding the two years. On the basis of the date of birth of the prosecutrix, as admitted on behalf of applicant. When the prosecutrix was aged about 16 years, in such circumstances, her consent is immaterial.

In the present case, the prosecutrix had specifically stated in her statements recorded under Sections 161 and 164, Cr. P.C. that the applicant committed rape upon her without consent by closing her mouth from handkerchief and tying the hands by angauchha. He went away from there after leaving her unconscious. Smt. Shivkanti reached there and saw the applicant coming from the place of occurrence and saw the prosecutrix in unconscious condition. She was taken by her to this house where she became conscious. Therefore, the applicant has committed rape upon the prosecutrix without her consent although hymen was found present according to the medical examination report. However, it is important to mention here that penetration is sufficient for committing the offence of rape. In such circumstances, the statement of the prosecutrix is supported with the medical examination reports. Therefore, it is liable to be deemed that the applicant has committed rape against the will of the prosecutrix who is a minor girl.

It is contended by the learned Counsel for the applicant that he has been falsely implicated in this case due to village party-bandi as in the previous panchayat election of 2005 Manoj Kumar, real brother of applicant was contesting the election with the husband of the alleged eye-witness Smt. Shivkanti and the complainant Lalu Prasad and Ram Kishore created pressure upon the brother of the applicant to withdraw his nomination but the same was denied by the brother of the applicant which resulted into enmity between the parties. Manoj Kumar, the brother of the applicant had given two applications-one before the S.H.O., Bithur and another before the District Magistrate, Kanpur Nagar on 7.8.2005 making complaint against them. On that basis, he has been implicated falsely. This contention has also no force. According to the submission of the learned Counsel for the applicant, the brother of the applicant had denied to withdraw his name from the Pradhan election and, therefore, he could be implicated falsely and not the present applicant. In rape cases, it is not expected that no person will implicate the other person by making false case of rape with an unmarried minor girl. The applicant could be implicated in any other such as marpit, theft, robbery etc. In such circumstances. This contention has also no force.

It is further contended that the first information report was lodged after three days of the alleged occurrence. This contention has also no force as the delay in lodging the first information report has no importance in this case. A person again and again think either to lodge or not to lodge the first information report regarding the rape case as the question of prestige is involved in the society.

Learned Counsel for the applicant has also relied on a decision in the case of Dinesh alias Buddha v. State of Rajasthan, (LV) 2006 ACC 314 (SC): 2006 (2) ACR 1467 (SC), in support of his contention. I have perused the pronouncement very carefully and found that in my opinion this case law has no application in the peculiar facts and circumstances of the present case.

After considering the facts and circumstances of the present case and the submissions made by the learned Counsel for the applicant, I do not find any force in the arguments advanced on behalf of the applicant. Therefore, this bail application is liable to be rejected.

Consequently, this bail application is hereby rejected.