- (1.) VIRENDRA Saran, J. Anil Kumar s/o Sri Ram Sowak r/o Naramau, P. S. Bithoor, district Kanpur Nagar has filed this criminal appeal against the judg ment and order dated 5-7-1993 of Sri V. S. Shukla, IVth Additional Sessions Judge, Kanpur Nagar in S. T. No. 258 or 1992. The learned Judge has con victed and sentenced the appellant to 4 years R. I. under Section 366, I. P. C. , by the same order the learned Judge has acquitted the appellant under Section 376, I. P. C.
(2.) ACCORDING to the case of prosecution Km. Mamta was aged about 15 years at the time of incident and was a student of Class X in Jawahar Lal Vidyalaya, Kalyanpur, District Kanpur Nagar. On 19-7-1989 she left her house at 9 p. m. for going to the school for depositing her fee. Km. Mamta did not return to her house in the evening and the complainant started searching for her. While the search was on it was learnt that Km. Mamta had boarded Tempo No. UHI 584 on her way back and co-accused Suresh Kumar s/o Ram Shankar Tiwari was driving the same, while appeillant Anil Kumar was the conductor of the tempo. It further came to light that Mamta was seen in the company of the two accused at a tea shop at Bithoor. Thereafter on 22-7-1989 PW 1, Ram Chandra, lodged F. I. R. at P. S. Bithoor, Km. Mamta was recovered by police near Lakhanpur while she was in the company of appellant Anil Kumar on 5-8-1989. At the time of recovery PW 1, Ramchandra, was also present and Km. Mamta was given in his custody vide Supurdaginama (Ext. Ka-2) Km. Mamta was sent for medical examination. She was medically examined by PW 6, Dr. R. Gupta on 6-8-1989. Dr. Gupta found that the hymen of the girl was intact and its margins were regular. There was no swelling or bleeding of any kind. Breasts of Km. Mamta were well developed and auxiliary and pubic hair were present. Dr. Gupta has further noted that there was no injury present on vulva or any other part of the body and that girl was not habitual to intercourse and in the opinion of doctor sexual intercourse was not committed with her on the basis of X-ray examination Dr. Gupta opined that Km. Mamta was aged about 17 years. X-ray report has been duly proved as Ext. Ka-8 by the doctor. After the completion of investigation a charge-sheet was filed against the appellant and one Suresh Kumar and they were committed to the Court of Session. In support of its case the prosecution examined PW 1 Ram Chandra, father of Mamta who has been married to one Ram Autar. After her recovery. PW 2 is Smt. Mamta is alleged to be the victim of the offence. PW 3 Shiv Kumar and PW 4 Banwari are witnesses of seeing the prosecutrix in the company of accused. PW 6 is lady doctor R. Gupta who conducted the medical examination. PW 5 is constable Ahibaran Singh who registered the case and the last witness is PW 7 Mahesh Chandra Tyagi who investigated and charge-sheeted the case. After the close of the prosecution evidence the appellant as well as the co-accused Suresh were examined. Both denied the correctness of prosecution case, plea added innocence and claimed to be tried. The learned IVth Additional Sessions Judge, Kanpur Nagar (Sri V. S. Shukla) after scrutinising the evidence on the record found that the charge under Section 376 has not been proved and therefore, he acquitted both the accused for the offence under Section 376, I. P. C. , but convicted the appellant under Section 366, I. P. C. , and sentenced him as mentioned above. I have heard Sri S. L. Singh, learned counsel for appellant and learned State Counsel at length and have perused the evidence and the other material on the record.
(3.) IT has been argued by the learned counsel for the appellant that F. I. R. in the present case has been lodged after a considerable delay. There is force in the submission made by the counsel. The incident took place on 19-7-1989 but the report was lodged on 23-7-1989 i. e. after 4 days of the disappearance of the girl. In such a long interval of time a version suited to the informant could be cooked up and, therefore, the allegation of the F. I. R. cannot be accepted at their face value. One of the basic considerations in this case is the age of Km. Mamta at the time of the incident. The informant has made a vain effort to minimise her age by describing her to be nearby 15 years of age. The doctor has, however, deposed that the age of the girl was about 17 years at the time of her medical examination. According to the X-ray report there was com plete fusion of bones of the elbow joint while there was no fusion of the wrist joint. According to the Modi's Medical Jurisprudence the wrist- joint fuse at the age of 19 years in the case of girls of U. P. Moreover, the opinion of the doctor is a mere estimation and there can always be a variation of 2 years in the assessment of the age made by the doctor on either side. Thus, when two possibilities are there, one which is in favour of accused has to be given weight. I am, therefore, of the opinion that Mamta may well be above the age of 18 years at the time of incident. The doctor has, however, stated that the breast of Km. Mamta was fully developed and pubic and auxiliary hair were also there. It, therefore, appears that even from her appearance Km. Mamta was grown up girl and that might be above 18 years of age. The learned Sessions Judge had observed that auxiliary and pubic hair were not well developed but this is not the statement of doctor. The prosecution did not put a single question to doctor and did not get it proved in the examination-in- chief that auxiliary and pubic hair were not developed.;