- (1.) M. C. Jain, J. The appellant Shiv Lochan is aggrieved by the judgment and order dated 24-9-1981 passed by Sri G. K. Gupta, the then XIII Additional Sessions Judge, Kanpur in S. T. No. 4 of 1980. The appellant has been convicted under Sections 376 and 457 I. P. C. To him five years' rigorous imprisonment has been awarded under Section 376 I. P. C. and two years' rigorous imprisonment under Section 457 I. P. C. Both the sentences have been ordered to run concurrently.
(2.) I have heard Sri Devendra Swarup, learned Counsel for the appellant in support of the appeal and learned A. G. A. in opposition thereof. The record of the case has also been examined. The genesis of the prosecution case was the F. I. R. lodged by the prosecutrix, Smt. Surajmukhi at Police Station Colonelganj, Kanpur on 19-2-1978 at 10. 30 p. m. The incident took place that night at about 8. 00 p. m. in her house situate by the side of railway line near the Coal Shop of one Gupta in Gwal Toli. Police Station Colonelganj, Kanpur. She was lying down in her bed and her husband was not present as he had gone to his Sasural. The accused, resident of nearby place, came to her house and sent away her son Om Prakash on the pretext of purchasing ganja for him. He then pounced upon her and after overpowering her committed rape on her forcibly. In the meantime, her husband arrived and the accused ran away. A case was registered. The investigation followed which resulted in the submission of charge sheet. Charges under Sections 376 I. P. C. and 457 I. P. C. were framed against him by the trial Court. The accused pleaded false implication due to enmity. The prosecution examined X. Zavier P. W. 1, S. I. Mahatam Singh P. W. 2 prosecutrix Smt. Suraj Mukhi P. W. 3, Dr. R. Gupta P. W. 4 and Constable Seva Ram P. W. 5. X. Zavier P. W. 1 was examined as a witness of having seen the accused fleeing from the spot, but he turned hostile. So far as the factual evidence is concerned, the case rests on the testimony of the prosecutrix Surajmukhi P. W. 3 alone. It may also be related here that the accused also examined one Om Prakash who tendered negative evidence of nothing having happened. He also stated that he owned coal shop nearby the scene of occurrence. He also stated that residents of locality used to sit at the house of the prosecutrix and to cut jokes with her. Any how, as regards the actual incident his version being of negative character has to be ignored.
(3.) DOUBTLESS, the inference regarding rape can be drawn on the basis of testimony of the prosecutrix alone if the same is supported by the totality of the facts and circumstances. In the present case, the attending facts and circumstances dislodge the veracity of the version of the prosecutrix. Number of reasons in this behalf are lined up. Though she stated that her husband had reached and seen the accused committing rape on her, but he was not examined as a witness. It also goes unexplained as to how could the accused manage to run away even after the arrival of the husband of the prosecutrix. In natural course, he would have made serious attempt to nab the accused then and there. In the F. I. R. , the prosecutrix stated that her husband had seen the accused committing rape on her, but in her testimony before the Court, she resiled from her this statement that he had seen the accused committing rape on her. She, however, insisted that her husband had reached before the accused had run away. His son Om Prakash, whom the accused had allegedly sent to fetch Ganja, had also not been examined. On medical examination, no injury was found on her person and she was found to be used to sexual inter-course. Her statement was that on her struggle,her bangles had broken down and she had even bled from the wrists. The broken pieces of bangles were not made over to the Investigating Officer. There is nothing in the statement of the Investigating Officer Mahatam Singh P. W. 2 that any broken pieces of bangles had been found by him at the spot. On medical examination, vaginal smear was found negative for sperm (dead or alive ). There were no bloodstains over her private parts or under garments. It is manifest from careful scrutiny of the testimony of the prosecutrix Surajmukhi P. W. 3 that the accused resided at a distance of 20-25 paces from her house and used to come to her house earlier also. It appears that she herself was of loose morals as she allowed entry to the accused at her house at that hour of the night without any hesitation and further did not object when he sent her son to fetch Ganja. As a mother, she would not have allowed her son to be sent out at that hour and for such purpose because that was to leave her alone with the accused. The way she conducted herself indicates her substandard life discipline. The possibility cannot be ruled out that if anything happened, the same was with her consent. The greater possibility is that she entertained the accused with her own free will after sending away her son. But, the situation took an adverse turn for her as her husband arrived in the meantime. So as to throw the blame on the accused, she with the design to ward off the wrath or displeasure of her husband, enacted this drama of rape having been committed on her. In view of the above discussion. I would allow this appeal setting aside the conviction and the sentence passed against the accused appellant under Sections 376 and 457 I. P. C.;