JUDGMENT N.S. Gupta, J.
1. Accused appellant before this Court is Pratap Narain who was convicted under Section 376 I.P.C. and was sentenced to undergo R.I. for a period of seven years by Sri N. K. Maheshwari the then Sessions Judge, Fatchpur, vide his judgment and order dated 16-7-80. It appears that along with accused appellant Pratap Narain, Abbas Sadiq and Smt. Chunki were also put on trial, whereas Smt. Chunki was acquitted by the trial Court itself, but Abbas, Sadiq and Pratap Narain were convicted for seven years R. I. Under Section 376 I.P.C. Sadiq and Abbas were further convicted under Section 366 I.P.C. and were sentenced to give years R.I. each, Abbas and Sadiq preferred separate appeal against their conviction and sentence. According to the information conveyed to this Court by the learned counsel for the parties, appeal of Abbas and Sadiq has already been decided on the pica of bargain. That apart the present appeal was preferred before this Court only by accused appellant Pratap Narain and is being disposed of as under.
2. The prosecution story briefly staled is as follows :-
The prosecutrix Srnt. Abad Begam, P.W. 5 was the daughter of complainant Smt. Asgari Begam, P.W.5. She used to reside with her parents in Lahori Mohalla, Bindki, district Fatehpur in the year 1976. The occurrence of this case took place on 4-6-76 in between 8.00A.M. to 2.00 P.M. in Mohalla Kujdaji, police station Bindki, district Fatehpur. The prosecution claimed that on the date of occurrence of this case i.e. 4-6-76, prosecutrix Km Abda who was then unmarried girl aged about 13-14 years went from her house to the market for purchasing vegetables. When she came near the shop of Chunni Halwai, accused Sadiq and Abbas met her. They both were residents of Mohalla Lahori and were well known to the prosecutrix since before. Accused Sadiq caught hold of the hand of the prosecutrix, accused Abbas showed a knife to her and directed her to silently go with them otherwise she would be killed. Feeling frightened, the prosecutrix started along with these two accused persons viz. Sadiq and Abbas. Accused Sadiq and Abbas took the prosecutrix to Mohalla Kujdahi in the house of accused Smt. Chunki Doctraine. They took her to the first floor of the said house. There she found the accused appellant Pratap Narain to whom the prosecutrix did not know since before. Accused Sadiq, Abbas and accused appellant Pratap Narain committed rape upon the prosecutrix. According to the prosecutrix first of all Abbas raped her, then Sadiq raped her and then accused appellant Pratap Narain raped her and went away. The prosecutrix claimed that the Doctraine Smt. Chunki (who was since acquitted by the trial Court itself) brought bucket of water and asked the prosecutrix to wash hands, legs and private parties. She also washed away the blood which had fallen on earth. The prosecutrix put her on her Salwar and thereafter the Doctrine vi/,. Smt. Chunki went out of the room and closed the door of the room. Thereafter, after about an hour at about 1-2 P.M. the prosecutrix mother Srnt. Asgari Begam, P.W.8 came into the said room along with Sadiq, P.W. 1 Jamil P.W.2, Faiyyaz, P.W.3, Mushtaq, P.W.7 also and rescued the prosecutrix. The prosecutrix narrated the tale of her woes to her mother. The mother of the prosecutrix thereafter took the prosecutrix to police station Bindki where she lodged a written report Exh. Ka. 2 about this occurrence naming therein accused Sadiq, Abbas and one unknown as also Doctrine as accused persons.
3. Investigation of the case was conducted by S.I. Abrar Ahmad, P.W.9 who was then posted as S. K. IInd at police station Bindki. S. I. Abrar Ahmed recorded the statement of Head Moharrir Deo Raj who registered the case and referred the prosecutrix for her medical examination to Women Hospital Fatehpur. He thereafter along with Head Constable Ram Babu, H. C. Mohd. Ishaq and Badri Prasad went in search of accused persons and arrested accused appellant Pratap Narain. He made the accused appellant Pratap Narain Baparda and took him to the house of Smt. Chunki at about 7.00 P.M. He arrested Smt. Chunki and interrogated her. He had given instructions to accused appellant Pratap Narain to conceal his identify because he was to be put up for identification. After despatching accused appellant Pratap Narain and Chunki for being produced before the Court, S.I. Abrar Ahmad started in search of named accused Sadiq and Abrar. He recorded the statement of accused appellant Pratap Narain on 5-7-76 and thereafter he recorded the statements of P.W. 1 Sadiq, P.W.2 Jamil, P.W.3 Faiyyaz, P.W.4 Bhola, P.W.6 Ram Babu and P.W.7 Mushtaq. The Investigating Officer inspected the scene of occurrence at the instance of prosecutrix Abada and her mother Smt. Asgari Begum on 8-7-76, as prosecutrix and her mother had gone to Kanpur for X-ray examination. He received medical examination report of the prosecutrix on 8-7-76. Accused Sadiq and Abbas surrendered before the Court on 22-7-76. The Investigating Officer recorded the statement of accused Sadiq and Abbas on 5-8-76. He submitted the report for identification of accused appellant Pratap Narain. Accused appellant Pratap Narain was put up for identification on 2-8-76 in presence of Sant Lal, P.W. 10, the Executive Magistrate Fatehpur. The accused appellant was correctly identified by the prosecutrix Smt. Abida, P.W.5 Her mother Smt. Asgari Begam, P.W. 8, Rainu P.W.6 and Mushtaq, P.W.7. After needful investigation and trial into the matter, the accused appellant Pratap Narain, Abbas and Sadiq were found guilty and were convicted as aforesaid. Aggrieved by the said judgment of the trial Court, accused Abbas and Sadiq preferred separate appeal being Criminal Appeal No. 1551 of 1980 and the accused appellant Pratap Narain preferred the present Criminal Appeal being No. 1552/80.
4. It has been vehemently argued by Sri J. S. Senger, learned counsel for the accused appellant before this Court that the accused appellant was falsely implicated into this ease at the behest of Sri Rama Kant Dwevedi, Ex-MLA and that the learned trial Court grossly erred in convicting and sentencing the accused appellant. On the other hand Sri V. B. Singh, learned A.G.A. had contended before this Court that the guilt of the accused appellant is fully established by the statement of the prosecutrix Smt. Abida, P.W.5 and, therefore, the contention of the accused appellant that he was falsely arrayed into this case has got no legs to stand. I have carefully considered the respective contentions of the parties and have gone through the record of the case in full details. I am of the opinion that the statement of the prosecutrix on the point that the accused appellant had raped her is not a truthful one.
5. I should state here that according to the F.I.R. which was lodged by the mother of the prosecutrix, the mother of the prosecutrix or any other person who had gone with her for rescuing the prosecutrix from the house of Smt. Chunki, the Doctrine and the fourth accused of the case did not see the accused appellant at the house of Smt. Chunki. The F.I.R. lodged by Smt. Asgari Begam reads as under:-
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6. When according to the averments of this F.LR. the prosecutrix mother Smt. Asgari Begam, P.W.8 and Mushtaq, P.W.I had not seen the accused appellant when they had gone to the house of Doctrine viz. Smt. Chunki for rescuing the prosecutrix, the, identification by these two witnesses viz. Asgari Begam and Mushtaq as also Ramu who had correctly laid hands upon the accused appellant becomes insignificant.
7. It is important to note here that P.W.1 Mushtaq, in his cross-examination before the Court below has clearly stated that he very well knew Supervisor Pratap Narain 3-4 years before the date of occurrence of this case. It was stated by the accused appellant in his statement under Section 313 Cr. P.C. before the Court below that he was working as Co-operative Supervisor in Bindki. He stated that some-co-operative dues were outstanding against Ex. M.L.A. of Bindi viz. Sri Ramakant Dwivedi. He stated that when he pressed hard for the recovery of the dues of the society Sri Ramakant Dwivedi got him involved in the present case in connivance with the police.
8. It has come in the evidence of Investigating Officer Abrar Ahmad, P.W.9 that since after the registration of the case on the basis of the F.LR. Ex. Ka.2, he first of all laid hands upon the accused appellant Pratap Narain and arrested him on the basis of the information of an informant. The Investigating Officer never bothered to apprehend (he named accused persons viz. Sadiq Abbas and Doctrine Smt. Chunk!, but he succeeded in arresting the accused appellant Pratap Narain immediately on the basis of the information of an informant and allowed the named accused Sadiq and Abbas to remain loitering for a period of about 20 days of the occurrence, in so much so that he allowed these two named accused persons to surrender before the Court on 22-7-76. When accused Sadiq and Abbas had played a pivotal role in the occurrence of this case in kidnapping the prosecutrix from the main market and in taking her away to the house of Smt. Chunki, and in raping her at the house of Smt. Chunki, the primary duty of the Investigating Officer in the normal course should have been to first of all lay hands upon these two accused persons, but instead of doing so, he laid hands upon the accused appellant Pratap Narain, whose description even was not stated in the F.LR. It is clear from the statement of Abrar, Ahmad, Investigating Officer that he did not bother to inspect the place of occurrence immediately for the reason that Km. Abida and her mother had gone for medical examination at Kanpur. When a sensational case of raping minor girl by as many as three persons was reported at police station it was bounden duty of the investigating officer to first of all rushed to the scene of occurrence. If for any reason the prosecutrix or her mother were not available, the place of occurrence was clearly borne out from the averment of the F.LR. and there could not have been no difficulty for the investigating officer in inspecting the place of occurrence.
9. The very fact that the delayed spot inspection was made by the investigating officer, that first of all the accused appellant who was not named in the F.LR. was arrested by the investigating officer as against the named accused persons who were allowed to surrender before the Court, it is amply established that the approach of the investigating officer was not fair and impartial and that he had laid hand upon the accused appellant at the instance of some other person who may have been hearing grudge with the accused appellant.
10. The prosecutrix Km. Abida is the sole witness of the commission of rape upon her by the accused appellant. Judging her evidence in the light of medical examination of the prosecutrix and the statement of Suit. Tara Devi, Female Medical Officer, P.W. 12, the position of the prosecutrix was found as under :-
Height 4' 8", Weight 90 Lb Teeth 14/14. Breast had started developing, pubic heirs were present.
Injuries:
1. Abrasion 5.5. cm. redness in it. side of thorax, vertebrae simple.
2. Abrasion 2cm x 1cm in R1. side of chest medial to breast
3. Abrasion 1.5cm. 1cm -do- 2 em below the No. 1 Inj. simple.
4. Abrasion 1.5cm x 1cm just below the Inj. No. 3. Simple.
11. On internal examination Dr. Suit. Tara Devi found that the vagina hardly admit one finger. She found tenderness in vagina. Hymen was torn but there was no bleeding. The doctor look vaginal smear of the prosecutrix and sent it for a pathological examination. On pathological examination no semen was found therein. Some ethopean cells were found. According to the report of Radiologist the age of the prosecutrix was found as 13-14 years.
12. Dr. Smt. Tara Devi opined that some interference with some hard object was found in the private part of the prosecutrix. Although Dr. Smt. Tara Devi slated that the bruises of the kind found on the person of the prosceutrix could have been caused if the prosecutrix was subject to rape, for she, very clearly stated that if as many as three persons committed rape upon a minor girl like the prosecutrix, ii is probable that bruises would be there in and outside the vagina. She stated that although the hymen of the prosecutrix was torn but there was no internal injury. If it was a fact that as many as three persons including the accused appellant, who according to the own statement of the prosecutrix was the third man who committed rape upon her, the prosecutrix would have sustained a lot of injuries in her vagina. She stated that the body building development of the prosecutrix could be similar to a girl of about 16-17 years. It is probable for me to believe that (he prosecutrix was a young girl of tender age of 13-14 years at the time of the occurrence of this case and that the accused appellants Sadiq ant Abbas who were named as culprits in the F.I.R. had taken her away when she have gone out of her house to market but since no description of the accused appellant was mentioned in the F.I.R. nor was told to the Investigating Officer by the prosecturix, it is not possible for this Court to believe that the accused appellant was responsible for committing rape upon her.
13. In view of the clear statement of the accused appellant that he was falsely booked into this case al the instance of Ex. M.L.A. Rama Kant Dwivedi, the possibility that the said M.L.A. wielded his own influence upon the Investigating Officer, S.I. Abrar Ahmad and further that he felt annoyed with the accused appellant because the accused appellant had courage to demand the outstanding dues from the Ex. M.L.A., tine possibility that accused appellant was falsely implicated into this case is rather established.
14. I should state here that during the course of identification proceeding before Sri Sant Lal, P.W. 10, the mother of the prosecutrix as also other witnesses who were brought to identify the accused persons had stated that the accused appellant had committed rape upon her, but so far the prosecutrix was concerned she only stated that the accused appellant had mis-behaved with her. In that statement which was the first statement of the prosecutrix before the Magistrate, the prosecutrix never stated that she has come to identify that unknown man who had committed rape upon her.
15. Thus the plea that the accused appellant was falsely implicated at the instance of some influential man by the parent of the prosecutrix is strengthened. I am, therefore, of the opinion that the learned Court below grossly erred in placing reliance upon the statement of the prosecutrix. The said statement in so far accused Pratap Narain is concerned is disbelieved and accordingly the appeal is allowed. The accused appellant is acquitted. He is on bail. His bail bonds arc hereby cancelled but he need not to surrender.
16. Let a copy of this judgment along with the record of the case be sent to the Court below.