Karuna Nand Bajpayee, J. - (1.) This application has been filed for quashing the order dated 25.11.2016 passed by the Addl. Chief Judicial Magistrate, Court No.2, Mainpuri in Final Report Case No. 138 of 2016, Ram Bahadur versus Kayam Singh and others, arising of Case Crime No. 246 of 2015, under Section 376D IPC, P.S. Kishani, District Mainpuri whereby the aforesaid Final Report was accepted. The applicant has also made a prayer that the court below may be directed to summon the opposite parties under Section 376D IPC.
(2.) Heard learned counsel for the applicant, learned AGA for the State and learned counsel for the opposite party nos. 2 to 5.
(3.) Submission of learned counsel for the applicant is that the applicant is the complainant of the case and the final report submitted by the police after investigation in the same, has been accepted by the court below while the protest petition which was filed on behalf of the applicant has been rejected. Contention is that the findings as have been recorded by the court below are absolutely against the record and, therefore, the entire concluding inference drawn by the Magistrate in favour of the accused stands vitiated. It was pointed out that while passing the impugned order the court below has observed at one place that the victim-girl in her statement recorded under Section 164 Cr.P.C. had stated that one Sintu had asked for her photograph on which she had told him to come in the night. Thereafter she went out at about 10.00 p.m. with her photograph but did not find Sintu there and, therefore, she waited there for him. When her family members woke up to find this they gave her a beating. Thereafter her family members instigated her to falsely implicate the accused Omveer, Ashok, Kem Singh and Nagendra but actually they had not done anything wrong with her. Learned counsel for the applicant has drawn the attention of the Court to the statement of the victim recorded by the Magistrate under Section 164 Cr.P.C. photocopy of which finds its place on page-39 and the same has been filed as Annexure-5 to the application. It has been pointed out that no such statement as quoted above regarding Sintu was ever made by the victim before the Magistrate and in fact, she has gone to state before the Magistrate that she did not even know who Sintu was and she never had any telephone of Sintu. Further submission is that there is complete denial in the statement made by the victim regarding Sintu and yet the Magistrate has misquoted in the order the statement of the victim recorded under Section 164 Cr.P.C. Learned counsel for the applicant has further emphasized that the victim had nominated all the accused persons who were nominated in the FIR. It was also pointed out that the name of accused Prem Singh has been wrongly written as Kem Singh in the statement recorded by the Magistrate but overall reading of the statement recorded under Section 164 Cr.P.C. would indicate that mentioning the name of Kem Singh was only a typographical error. It was further submitted that the entire finding given by the Magistrate is based on misreading of the record, specially the victim's statement under Section 164 Cr.P.C., and, therefore, looses its legitimacy completely. Learned counsel for the applicant has further argued that another ground which has been made the basis to accept the final report is the medical examination of the accused persons which according to the finding of the Magistrate indicates that no smegma was found in the male organs of the accused persons when they were medically examined. It was observed by the court that in case some person indulges in the act of coitus with a girl then smegma would be found on his male organ and in case he does not indulge in any sexual act then smegma will not be found. This finding of the Magistrate is based on the findings of the investigation which again in turn is based on the statement of the doctor. Submission of learned counsel for the applicant is that this entire finding is wholly against the medical jurisprudence. Smegma is a kind of layer or deposition found on the tip of the penis which normally grows automatically in the course of time. But in fact, if somebody indulges in the sexual act then this layer of smegma gets removed and would disappear. Submission is that absence of smegma is in fact a strong indication that the accused has in recent hours indulged in the sexual act. But the findings of the Magistrate in this regard are wholly to the contrary and, therefore, on this count also the inference drawn by the Magistrate stands vitiated. Argument is that the Magistrate has mechanically accepted the finding recorded by the Investigating Officer in favour of accused without taking care to appreciate the correctness of the same. It has also been pointed out that actually the finding with regard to presence and absence of smegma in relation to different accused persons has not also been correctly mentioned in the statement of the Doctor that was recorded by the Investigating Officer under Section 161 Cr.P.C. and the original medical examination of the different accused persons has not been correctly appreciated. Further submission is that therefore, the accused persons in this case ought to have been summoned by the court below and the final report submitted by the Investigating Officer should have been rejected and the court must have taken cognizance of the matter as the case diary, especially the statement of the victim given before the Magistrate under Section 164 Cr.P.C, contained more than enough material on the basis of which cognizance must have been taken in a matter like this.;