(1.) In the First Information Report, lodged on 18th November, 2010 by Devki Pandey (PW2), it was alleged that the appellant entered the house of PW2, when PW1 was alone present there, assaulted PW1 and committed theft/burglary of certain items, particulars whereof will be furnished later. Dr. Hitendra Jangpangi (PW6) was attached to Base Hospital, Haldwani, where he medically examined PW1 and found that she has received certain injuries. Later, Dr. Usha Jangpangi (PW5) examined PW1 at Female Hospital, Haldwani and found that she has received certain injuries also in her private parts. The statement of PW1 was recorded under Section 164 of the Code of Criminal Procedure on 20th November, 2010 when PW1 held out that she was raped by the appellant. The clothes of PW1 were taken possession of and the same were sent for examination to Forensic Science Laboratory. PW5 had also taken slides of vaginal smear of PW1 and those were also sent for examination. On examination of the slides of vaginal smear, it transpired that no spermatozoa, dead or alive, is present. It was reported that one finger penetrates the vagina with difficulty and pain. The Forensic Science Laboratory reported that semen was found on the clothes of PW1. Appellant was arrested in course of investigation and, on his alleged disclosure, certain items were recovered. Under garments of the appellant were seized and the same were sent for examination. Forensic Science Laboratory reported that the same contained semen. On acceptance of the charge-sheet, appellant was charged for having committed offences punishable under Sections 376, 394, 459 and 411 of I.P.C. After considering the evidence led, the court below convicted the appellant for offences punishable under each of the aforementioned Sections of I.P.C. and also appropriately convicted the appellant.
(2.) In relation to offences punishable under Sections 394 and 411 of I.P.C., prosecution placed reliance upon the recovery memo and that has been accepted by the court below. The recovery memo is not acknowledged by the appellant. The same was not witnessed by any independent witness. The recovery memo suggests that the appellant was standing infront of a Cinema Hall, wherefrom he can be picked up. At 4 O'clock, police went to pick up the appellant and picked him up at 8 O'clock in the evening. S.I. Arun Kumar (PW7) was the Investigating Officer. He did not explain, why it took four hours' time for the police team to arrest the appellant after receiving information that the appellant is standing infront of the concerned Cinema Hall. Soon after arrest, recovery of the alleged stolen goods was made. There is only one memo which suggests recovery as well as arrest. According to recovery memo, one pair of gold ear rings and one silver glass were recovered. PW2 failed to produce before the court below anything to show that either the subject gold ear rings or the subject silver glass or similar gold ear rings or similar silver glass was acquired by her either by purchase or otherwise. We, accordingly, feel that the learned counsel has, therefore, rightly submitted that there was, in fact, no evidence before the court below, on the basis whereof the appellant could be convicted for offences punishable under Sections 394 and 411 of I.P.C. The judgment under appeal, in so far as the same convicted the appellant for offences punishable under Sections 394 and 411 of I.P.C. therefore is set aside.
(3.) Learned counsel for the appellant submitted that no rape was committed in the instant case. She submitted that in the First Information Report, there was no whisper of rape, but later on, the same was concocted. It was contended that though while recording statement under Section 164 of the Code of Criminal Procedure, PW1 held out that she was 15 years old, she, in course of tendering evidence, accepted that she was 17 years old and PW2, in course of tendering evidence, held out that PW1 was 16 years old. It was submitted that having regard to the said state of evidence the court must take note of the fact that PW1 was fairly matured and knew well what representation is to be made by her. It was submitted that the medical report disclosed that PW1 was though above 16 years, but was less than 18 years old. It was submitted that PW1, having had such maturity, would not disclose about the rape then and there to PW2, but would cover up the same, and soon thereafter, disclose the same, is not a natural behaviour of a person as that of PW1. It was submitted that PW6 did not feel it necessary, at least the same does not appear either from his medical report or from his evidence, that PW1 should be checked up by a lady Medical Officer. It was submitted that, later on, PW1 was medically checked up by PW5 when certain additional injuries in the private parts of PW1 were noticed. There is no evidence that those injuries were caused at the time when the incident alleged had taken place. It was contended that according to the medical report prepared by PW5, hymen was intact, vagina was tight and could only be penetrated by one finger with great difficulty and pain and there was no spermatozoa, dead or alive, present. On the other hand, on her clothes, semen was present. It was contended that the case of rape was, accordingly, fabricated. The learned counsel submitted that the reason was only to deny the lawful white washing dues of the appellant. We are not in a position to accept this submission of the learned counsel for the appellant, but we think that the learned court below has missed a very important aspect of the matter at the same time. In the instant case, it appears to us that, in fact, no rape was committed of PW1, but certainly attempt to commit rape upon her was committed. In that view of the matter, initially PW1 did not disclose anything pertaining to rape to PW2. Later, because of the injuries she suffered in her private parts and those having come to light when she stood admitted in the hospital and those being of such nature that the same suggested force upon her, she had no other option but to disclose the true facts. Although she used the word "Balatkar" while tendering evidence, but she did not say that, in fact, the male organ of the appellant was put inside her female organ. At the same time, the evidence on record suggests that ejaculation had taken place, inasmuch as, semen was found on the clothes of PW1 and of the appellant while no spermatozoa was found inside the vagina and, at the same time, the hymen remained intact and there was no injury on the outer periphery of vagina or inside vagina, and according to medical report, only a finger could penetrate the vagina with great difficulty and pain. The fact that a less than 18 years old girl came before and stated in the open court that she has been raped by the appellant for the purpose of denying the appellant his lawful whitewashing charges is not acceptable, particularly when the girl has no axe to grind against the appellant and had nothing to do with payment to be made by her aunt PW2 to the appellant. We, accordingly, hold that on the basis of the evidence on record, the prosecution had been able to establish that there was an attempt to rape and, accordingly, a case under Section 376 read with Section 511 of I.P.C. had been duly proved against the appellant. If we accept that PW1 received those injuries, which have been reported by PW5 and PW6 and if we accept that those injuries were received by her from the appellant inside the house of PW2, then the conclusion would be that the prosecution has been able to establish the charge for an offence punishable under Section 459 of I.P.C. There is no reason not to accept the same.;