Shiv Shanker - (1.) -This is the first bail application moved on behalf of the applicant involved in Case Crime No. 213 of 2006, under Sections 376 and 506, I.P.C., Police Station Bithur, district Kanpur Nagar.
(2.) BRIEFLY, the prosecution case, according to the first information report, is that Km. Rubi, aged about 12 years, alongwith two children, were present at the house situate in village Tikra, Police Station Bithur, district Kanpur Nagar, on 19.11.2006 while her parents had gone to their fields situate in their ancestral village Juraopur, Police Station Shivli, district Kanpur Dehat for the purpose of working in the fields. She came out from her house at about 11.00 p.m. for the purpose of discharging urine. Same time, applicant came and met her, closed her mouth with handkerchief ; took her in the khandehar of Ram Kishore and tied her hands with angauchha and thereafter committed rape upon her without consent. Same time her neighbour Smt. Shiv Kanti wife of Ram Kishore come out from her house for attending the natural calls and saw the applicant. She stopped there. Thereafter, the applicant has extended threats to her for not disclosing the facts to any body else. Thereafter, Smt. Shivkanti went to the khandehar where the victim Km. Rubi was found in the state of unconscious and her clothes were disturbed. Km. Rubi was taken away by Smt. Shivkanti in the same condition to her house where she gained conscious and narrated the whole story to her regarding the occurrence. Next day in the morning (22.11.2006), the parents of the victim returned back to their house from the fields. Thereafter, the incident was told to them by her as well as Smt. Shivkanti. Thereafter, Lalu Prasad, the father of the victim, lodged the first information report against the applicant on 22.11.2006. Heard the learned counsel for the applicant and learned A.G.A. as well as perused the whole records. It is contended by the learned counsel for the applicant that no date and time was mentioned in the medical examination report of the victim. Consequently, by the order of the Court, date and time have been mentioned as 22.11.2006 at 2.00 p.m. while the first information report was lodged by the first informant on 22.11.2006 at 4.00 p.m. After lodging the report, the prosecutrix Km. Rubi was sent for medical examination alongwith a lady constable. Then how the time in the medical examination report has been mentioned at 2.00 p.m. Therefore, the report has been obtained by the first informant in manipulated manner. As such, the entire prosecution case becomes unreliable and falsified. It was also alleged that the prosecutrix was not produced for medical examination on that day and fabricated medical report was obtained from the doctor.
(3.) THIS contention has no force. The medical examination report was prepared by the doctor but the date and time was not mentioned by the doctor. It depends upon the experience of the doctor. There is evidence on record that she was sent for medical examination through case Kaymi G.D. after 4.00 p.m. Therefore, it is liable to be deemed that she was medically examined after 4.00 p.m. but the date and time were not mentioned in the medical report by the doctor. Later on, it appears that the time of 2.00 p.m. had been mentioned merely on the basis of imagination. On the other hand, there is documentary evidence that the lady constable brought the victim from the concerned police station after 4.00 p.m. Therefore, it is liable to be deemed that she was medically examined after 4.00 p.m. THIS is the mistake on the part of the doctor due to his inexperience. It is further contended by the learned counsel for the applicant that the height and weight of prosecutrix had been shown in the medical report dated 22.11.2006 as 147 cm. and 30 Kg. respectively. While in the report prepared by the Chief Medical Officer, height and weight have been mentioned as 141 cm. and 35 Kg. respectively. This is the medical discrepancy regarding the height and weight and much importance cannot be given to it.;