- (1.) G. K. MATHUR, J. This revision is directed against the judgment and order dated 15. 4. 85, passed by Sri G. D. Dubey, Sessions Judge, Balia, in Criminal Appeal No. 45 of 1985, whereby the conviction of the appellant for the offence under Section 376 I. P. C. and the sentence of 7 years rigorous imprisonment awarded to the revisionist by the trial court has been maintained.
(2.) THE case of the prosecution, in brief, had been that in the night at about 11 on 4. 8. 84 the revisionist Ravindra Nath Misra came to the house of Smt. Pavitri Devi, widow of Bootan Singh, situate in village Baghai, post office Rudrapur, district Ballia and re quested her to accompany him to village Bolahari, to administer anaemia to a certain lady patient and that in the way of the patri of the drain of a certain Tube-well at the point of knife committed rape with her. It is alleged that coming back Smt. Pavitri Devi told the aforesaid fact to her mother-in-law Smt. Maheshwari Devi and got the report scribed from Ganesh Misra in the morning and lodged it at the police station Haldi on 5. 8. 84 at 3. 20 p. m. P. W. 8 Constable Sidhewar Singh prepared a chik report and registered the case. Smt. Pavitri Devi was sent for her medical examination. A lady doctor of women hospital, Ballia, medically examined her and gave the report as Ext. Ka 1. P. W. 6 Sudar-shan Ram Bhatri, S. I. made investigation of the case and took into possession the petticoat of Smt. Pavitri Devi (P. W. 6) and after making a local inspection prepared a site plan and submitted the charge-sheet against the revisionist. The revisionist pleaded not guilty and specifically denied the allegations made against him and stated that he has been falsely implicated on account of enmity with Dr. Santanu and that the witnesses have deposed against him falsely out of enmity. He did not examine any evidence in defence. The learned counsel for the revisionist submitted that the courts below fall in error in appreciating the evidence and have wrongly applied the provisions of Sec. 114-A of the Indian Evidence Act against the revisionist. His contention has been that there has been a miscarriage of justice in this case because of incorrect appreciation of the provisions of the Act and also because of giving too much premium to the circumstance that the prosecutrix would not have levelled a charge of this nature without any basis against the revisionist. As a matter of fact the revision has been admitted because these questions were involved in this case.
(3.) LEARNED counsel for the revisionist submitted that the written report has been scribed by Ganesh Misra (P. W. 4) who happens to be an Advocate by profession at Collectorate Ballia. He pointed out that the place of occurrence has not been mentioned in the aforesaid written report. He also submitted that in the written report the stand taken by the prosecutrix was that the revisionist and the unknown person had committed rape with her. In the first information report besides the revisionist one unknown person was also mentioned as an accused in this case. The learned counsel for the revisionist submitted that the statement of the prosecutrix (P. W. 5) Smt. Pavitri Devi has been to the effect that the revisionist alone committed the rape twice with her and that the unknown person who remained standing at a distance was asking the revisionist not to dishonour her.;