Decided on March 08,2013

Shiv Raj Gurang Respondents


Barin Ghosh, C.J. - (1.) TEEKA Ram (PW1) filed a First Information Report. In that, amongst others, it was alleged that in the evening of 22nd July, 2001, when Babita (PW3) and Isha (PW4) were in the corn -field of PW1, respondent came, offered PW3 and PW4 a ride on his motorcycle, took them on the motorcycle and, thereafter, the respondent raped PW3 and had oral sex with PW4. In course of investigation, pursuant to the said F.I.R., PW3 was taken for medical examination. Dr. Renuka Naithani (PW2) medically examined PW3 and found no sign of rape. She found that her hymen is intact; no blood is coming out from her vagina, no presence of spermatozoa, and that, she was aged between 12 to 14 years. Inasmuch as, the medical report, submitted to the investigation by PW2, did not support rape of PW3, statements of PW3 under Section 164 of the Code of Criminal Procedure were taken. Subsequent thereto, respondent faced trial for offences punishable under Sections 376, 377, 363 and 366 of I.P.C. PW1, though, had no knowledge regarding the allegations made by PW3 and PW4, but, while tendering evidence, he purported to hold out as if he was a witness to the same. Be that as it may, PW2 proved the medical report prepared by her, while tendering evidence and stated that having regard to her findings, she is not in a position to say that PW3 was raped. In the medical report, as would be evidenced therefrom, there was no reporting that PW3 suffered any sort of external injury. Furthermore, PW2, in her cross -examination stated, which statement should be regarded as an opinion, that there was no penetration and there was no attempt to penetrate. PW3, while deposing before the court, stated that the respondent offered a joyride to her and to PW4 on his motorcycle and upon acceptance thereof, he gave a joyride, but before the joyride came to an end, which was promised, at the selfsame corn -field, from where the joyride started, stopped the motorcycle and forced his male organ inside the female organ of PW3. PW4, while deposing, said, she took the joyride, as was described by PW3, from the corn -field and the said joyride ended also in the corn -field and, in the meantime, nothing happened. In addition to that, she stated that the family of PW3 threatened her and her family to give incorrect and concocted evidence. PW4 was 11 years old at the time of the incident. Therefore, before the court below, while there was an assertion by PW3 as regards penetration, there were two evidences, one in the form of opinion given by PW2 after medically examining PW3 that there was no penetration and that of the evidence of PW4, who stated that there was no such incident at all. In the circumstances, acceptance by the court below of the evidence of PW2 and PW4 and non -acceptance of evidence of PW3 is not interferable. The appeal fails and the same is dismissed.
(2.) LET a copy of this judgment be sent to the lower court alongwith lower court's record.;

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