Barin Ghosh, C.J. -
(1.) HEARD the appeal and the revision together. There are two respondents in the instant case. Both of them were charged for commission of the offences punishable under Sections 363 and 366 of the Indian Penal Code. Respondent No. 1, Neeru @ Nirankar Bhati, was additionally charged for commission of an offence punishable under Section 376 of the Indian Penal Code.
(2.) IN the instant case, father of the victim, namely Yashvir Singh (PW1), lodged a First Information Report, where he had stated that, since yesterday, victim PW2 has not returned home and that she was seen riding pillion in a scooty along with John and Haroon. Subsequent to the lodgment of the First Information Report, PW2 was found by the police on 2nd January, 2005 within the precincts of Roorkee Railway Station. She was taken to the Magistrate, where she disclosed that, in the evening of 28th December, 2004, she was taken to Noida by respondent No. 1, where she had sex with respondent No. 1. She also held out that, on a telephone call given by respondent No. 1, she met respondent No. 1 when respondent No. 2 was also accompanying respondent No. 1 and three of them went to Roorkee Bus Stand on the motorcycle, where, leaving the motorcycle, they proceeded towards Noida. Having regard to such disclosure, she was sent for medical examination, when she was medically examined. Her vaginal smear was also taken and an ossification test was also made. In view of the statements, thus made by PW2 principally, respondents were brought for trial for offences punishable under the Sections mentioned above, though ossification test suggested that she was between 17 -18 years and the medical examination suggested that there was no mark of injury in the private parts of PW2 and that hymen has been torn, vagina permits two fingers and there was neither any discharge or blood; at the same time, the pathological report on the vaginal smear suggested that there was no dead or alive spermatozoa available. In course of tendering evidence, PW2 stated that upto Roorkee Bus Stand, she and the respondents went by a bike. She, then, stated that she and respondent No. 1 went to Noida, where respondent No. 1 provided her in a two -bed room flat. She stated that she was raped by respondent No. 1. After two days, respondent No. 1 brought PW2 to Noida Railway Station. There respondent No. 1 purchased tickets, when she was with him and there was a large crowd. She, then, stated that they reached Roorkee Station and were sitting on a bench, and when the police came, seeing the police, respondent No. 1 fled from the place. Apart from this evidence of PW2, which she gave at a time when she was married, there is no other evidence connecting respondent No. 1 or respondent No. 2, or both of them together, with PW2. As aforesaid, in 3 the original report filed by PW1, it was reported that PW2 was seen in the company of some other people riding a scooty. That respondent No. 1 had a motor bike, which was used for taking PW2 from her residence to Roorkee Bus Stand, was not established. That respondent No. 1 had yet another bike or motorcycle, which was used for taking PW2 from the Noida flat to the Noida Railway Station, was also not established. That, in fact, in a flat at Noida, PW2 remained in the company of respondent No. 1, was not established. Apart from the assertion of PW2 made, for the first time, in the court that she was raped, there is no evidence that she was, in fact, raped. PW2 held out before the Magistrate that she had sex with respondent No. 1. That she was raped by respondent No. 1, was not held out at that time. In the circumstances, there was doubt, whether PW2 was, in fact, raped and, even if she was raped, whether the same was committed by respondent No. 1, as was alleged. The fact remains that it was PW2, who had stated that, on receiving a call from respondent No. 1, she agreed to accompany him. No case, therefore, under Sections 363 and 366 of the Indian Penal Code was made out.
(3.) THE court below has, therefore, exonerated the respondents of the charges as were levelled against them. We have not been able to take a different view in this appeal. The appeal fails and the same is dismissed.;