S.K. Jain, J. - (1.) HEARD Shri D.N. Wali for the appellants and learned A.G.A. on behalf of the State.
(2.) ON the accusation that on 10-3-1977 at about 8 p.m. accused Sadhu committed rape on Km. Meena aged about 19 years, whereas his co-accused Gyan Chand had helped him in committing the said act, the two accused persons were arrested, charged and tried under Section 376, I.P.C. In order to prove its case the prosecution examined at the trial Dilip Singh, PW-1, Satya Pal, eye- witnesses PW-2, Meena Kumari, Prosecutrix, PW-3, Om Prakash, PW-4, Mahesh Chand Panchamaiya, PW-5, Dr. Munni Devi, PW-6 and Bart Singh, PW-7. The learned trial court believing the statement of the prosecutrix and alleged eye-witness Satya Pal corroborated by Dr.' Munni Devi held the accused Sadhu guilty of having committed an offence punishable under Section 376, IPC and convicted him accordingly, whereas ac cused Gyan Chand was found guilty of having committed an offence punishable under Section 376 read with Section 34, IPC. He convicted him under these sections. After hearing them on the quantum of sentence, the trial court sentenced each one of them to undergo R.I. for four years and to pay a fine of Rs. 500 each. In default of payment of the fine, they were directed to undergo a further period of three months R.I. It is that judgment of conviction and order of sentence both dated 11-4-1979 passed by the Vlth Additional Sessions Judge, Saharanpur which has been impugned in this appeal.
(3.) I have heard learned counsel for the parties and with their help have carefully scrutinised the documentary evidence comprised of the FIR Ex. Ka-3, injury report of the prosecutrix Ext. Ka-6 and recovery memo of Shalwar Ext, Ka-2 and oral evidence com prised the statements of Dilip Singh, PW-1, Satya Pal, eye-witness, PW-2, Meena Kumari, prosecutrix, PW-3, Om Prakash, PW-4 Mahesh Chand Panchamaiya, PW-5, Dr. Munni Devi, PW-6 and Bart Singh, PW-7. Learned counsel for the appellants has firstly drawn my attention towards the statement of Dr. Munni Devi who had medicolegally examined the prosecutrix. According to her report she did not find any mark or injury on any part of the body of Meena Kumari. On internal examination she had found Hymen torn with old tear, which was not red. The Vaginal orific admitted two fingers easily. In her cross- examination, she has stated in unambiguous terms that prosecutrix was habitual of sexual intercourse. The learned counsel for the appellants took me through the statement of the prosecutrix as well as that of Satya Pal, PW-2, the alleged eye-witness of the occurrence. Piecing together the evidence on record, he has constructed an argument that the prosecution version was not believable inasmuch as (i) the prosecutrix has stated that she had a teeth bite on the shoulder of Sadhu-accused but strangely enough no medical report of the Sadhu accused is coming forth; (ii) the prosecutrix has admitted in para 14 of ther statement that the names of the accused were disclosed to her by one Ranjit on the day of the occurrence itself. It goes to show that she could not identify the accused persons; (iii) the above said Ranjit has been kept away from the court by the prosecution for the reasons best known to them; (iv) it is the prosecution case that the Shalwar which the prosecutrix was wearing at the time of occurrence was taken by the police in its possession and was sent to the Chemical Examiner but strangely enough that no report of the Chemical Examiner in this regard has been brought on the record; (v) (a) admittedly the occurrence had taken place at a point very close to the crusher near the bushes and a road was running in between the spot in question and the crusher; (v) (b) Satya Pal, PW-2, the alleged eye-witness, had said that there were two big flash lights fixed on the boundary wall of the crusher towards the gate and light emitted by these points was falling upto the road; (v) (c) that the bushes were at distance of four or five paces from the road and when they had allegedly seen the accused committing the rape with the prosecutrix, she was one pace towards the road from the bushes; (v) (d) that he had been seeing the act being committed for about five minutes he was making water and that he had heard an alarm raised by the prosecutrix. But the prosecutrix had stated that her mouth was gagged and she could not raise alarm; (v) (e) that the road was very much frequented by the people; and (v) (f) that the work on the crusher was carried in two shifts and the timing were 8 a.m. to 8 p.m. and 8 p.m. to 8 a.m. It means that if the occurrence had taken palce at 8 p.m. the workers of the day shift had left the factory and in natural course they must have seen the occurrence but none of the workers had been examined by the prosecution. On the basis of the above evidence the learned counsel for the appellants has urged that the prosecution witness Satya Pal has knocked the bottom of the case of the prosecution out. Lastly he has submitted that Satya Pal PW-2 was highly interested witness inasmuch as admittedly, he was an employee on the same crusher on which the father of the prosecutrix was a contractor.;