S.K. Kaul, J.@mdashThis is an appeal by Niranjan against his sentence and conviction to undergo three years rigorous imprisonment u/s 376 IPC as awarded to him by the learned Additional Sessions Judge, Sitapur.
2. Both Niranjan and the raped girl Km. Asha Devi resided in village Akohra, P. S. Pisawan, District Sitapur. They also belong to the same caste. The allegation is that on 25-7-1975, Km. Asha; Devi, a minor girl of Paras Ram had gone to the grove of Hori Lal in this very village to collect mangoes. The accused is said to have gone there and is said to have committed rape upon her. The accused was identified by P. Ws. Ram Swarup and Chiranju. The girl on return to the house, narrated the story to her mother, and the same was then narrated to Paras Ram, who accompanied by the girl, went to P.S. Pisawan, and lodged FIR on the same date at 17.05 hours. The distance between the scene of occurrence and the police station is six miles.
3. Dr. Kiran Mathur examined Km. Asha Devi on 26 and 27-7-1975. According to the doctor the breasts of the girl were not developed. There were no axillary or pubic hairs. Hymen was torn and margins were irregular, tender, swollen and red. Fourchette was torn and slight perineal tear, fresh and tender, about 1/2" in length, was present. The X-ray of the girl revealed that the elbow joint centre of medial epicondyle had appeared, but there was no union with the shaft. The centre of the end of upper radius was visible but had not joined with the shaft. In the wrist joint the lower ends of radius and ulna bones were visible but they had not joined with shafts and pesiform had not appeared. On this basis the doctor estimated the age of the girl to be about 9 years.
4. Investigation was done in the usual manner and ultimately the accused, on the basis of charge sheet, was asked to stand his trial u/s 376 IPC.
5. The defence of the accused was complete denial. He pleaded alibi by stating that on the date of incident he was reading in Pihani School, which was at a distance of 20 miles from the village in question. One witness in defence was also examined by the accused.
6. The learned Additional Sessions Judge found that the prosecution story was made out and rejecting the alibi, sentenced and convicted the accused-Appellant as above.
7. In this case there can be no doubt that the girl was subjected to rape. Apart from the girl, who is a child witness, the two witnesses, Chairanju, Ram Swarup, are distant relations of Paras Ram, because the girl admitted that she used to call Chiranju his uncle and Ram Swarup happens to be nephew of Chiranju. There is delay in lodging of the FIR because if we look at the statement of Paras Ram, as given to the Sub-Inspector, it would come out that the girl had told the story to him at about 8 a. m. and if this was a fact, there should have been a prompt FIR. The distance between the scene of occurrence and the police station is only six miles. It is true that no positive evidence could be given by the accused about his false implication, but then there was something which was preventing the father from going to the police station to lodge a report.
8. Coming to the question of alibi, I find that Paras Ram had to admit in cross examination that at the time of incident, Niranjan was a student. What he said was that 25-7-1975 was a holiday. I consulted the almanac of 1975 and it appears that 25-7-1975 was a Friday and there was no question of any holiday on that date. The witness had first said that the accused used to read in Baghnagar and later on he had got him name entered at Pihani School, subsequent to this incident. This somersault shows that there was something very fishy in the statement of this witness who lodged the FIR and who is the father of the girl. The suggestion made to the witness was that actually the ladies of the house of Paras Ram used to work at the house of one Jurakhan, and Krishna Pal son of Jurakhan, had tried to outrage the modesty of this girl and in order to save Krishna Pal, the accused was implicated, because his father is said to have outcasted the family of Paras Ram for working at the house of Jurakhan. DW 1 is a teacher in Pihani School. He stated on oath that on 25-7-1975 the accused was present in the school and that timings of the school were from 7 a. m. to 11-30 a. m. The learned Additional Sessions Judge drew some inferences from the register that was brought by the witness, but it should be remembered that the register was being produced in the court after an interval of about five years and much water must have flown during this period. I called for the file of the bail application, moved on behalf of the accused in this Court. It is Cr. Misc. Case No. 2076 of 1975. It shows that from the very inception, the defence of the accused was that on the date of the incident he was reading in the school at Pihani. The learned Sessions Judge had rejected the bail application although attendance certificate had been filed. Hon''ble Onkar Singh, J. granted bail because a certificate was filed by the Principal of this school on 1-10-1975 that Niranjan had attended Class X on 25-7-1975. Pihani lies at a distance of 20 miles from the village in question. The accused is not such an influential person that he could influence both the Principal and the Class Teacher to side him and give a false certificate and a false statement. Normally, when a person resides in a different district, it is difficult to believe that he could influence somebody of another district to forge entries in the register and to give a false certificate or a false statement on oath. Some pages of this register might be torn, but, as noted above the register was of 1975-76 and it was being produced in the court in the year 1980. In schools there is no adequate arrangement for preserving such registers. Consequently, it is possible that by the passage of time some pages might have been torn or come out of the stitching. The fact remains that Paras Ram had to admit that the accused was a student and had read in Pihani. As noted above, he had first tried to say that the date of incident was a holiday, meaning thereby that he was conscious that the accused was a student in that school. These circumstances, coupled with other circumstances, are sufficient to corroborate the statement of DW 1 Bachchu Lal, who was class teacher of class X-C in which Niranjan was reading, that on the relevant date Niranjan was present in the school. The timings of the school being from 7 a. m., it is impossible to conceive that the accused after commission of the crime, could have covered a distance of 20 miles and gone to Pihani to see that his attendance was taken. Since he was a student of Class X and the session must have started in July, it is not expected that a Class X student would afford to miss classes because he is supposed to pass his High School and he should be serious in his studies. In this background, I am of the view that the accused has been able to prove his alibi, with the result that the charge u/s 376 IPC cannot be said to have been brought home to him beyound reasonable doubt.
9. I would, therefore, allow the appeal, set aside the sentence and conviction awarded to the accused-Appellant and acquit him of the same.
10. The accused-Appellant is on bail. He need not surrender. His bail bonds are cancelled and his sureties are discharged.
