CHHATERPATI Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) This appeal by special leave is directed against the decision of a division bench of the High Court of Jammu and Kashmir in Criminal First Appeal No. 15 of 1966 on its file. The appellant, a police officer was sentenced under Section 376, R. P. C. (Ranbirsingh Penal Code) as well as under Section 342, R.P.C. The provisions of R.P.C. we were told are identical with those of I.P.C.

(2.) The case for the prosecution is that Menga, the father of Duphru filed a petition against his son-in-law Mangoo husband of Duphru in September, 1963 under Section 100, Cr.P.C., complaining that Mangoo is ill treating his wife and has wrongfully confined her. He sought the assistance of the magistrate to get his daughter released. On the strength of that petition, the magistrate issued a warrant for securing the custody of Duphru. That warrant was forwarded to the Ramnagar police station for execution. At that time the appellant was the Sub-Inspector of the police in Ramnagar police station. He took the warrant for execution and went to the house of Mangoo alongwith Baj Singh constable. At that place he did not find either Mangoo or Duphru, Later when he went to the house of Menga, he found both Mangoo and Duphru there. He asked Menga, his wife Jainti, Mangoo and Duphru to accompany him to Ramnagar as Duphru had to be produced before the magistrate. After coming to Ramnagar the appellant told them that the magistrate had been to a wrestling match and therefore he would produce Duphru before him on the next day. It is further said that he sent Menga as well as Mangoo back to their houses under one pretext or the other; thereafter in the night Jainti & Duphru were taken to the dak Bungalow; while Jainti was asked to remain in one room Duphru was taken to another room under the pretext of recording her statement and there she was raped by the appellant as by two other constables. It is further said that Duphru was not allowed to meet her mother till the next morning; when she met her mother next morning, she complained to her about the rape committed on her; lateron the father and husband or Duphru came there; they were also told about it; thereafter all of them proceeded to the Magistrate and on the way they met Hansraj Vakil to whom also Menga and Duphru complained about the rape committed by the appellant and two other constables. A little later when Duphru was produced before the magistrate, Mr. Bhat, she complained to him orally about the rape committed on her on the previous night but the magistrate told her to file a written compliant; subsequently she was examined by a lady doctor; thereafter she filed a written complaint; that complaint was investigated by the police and a charge-sheet filed against the appellant.

(3.) At the trial the prosecution was not able to examine the lady doctor who had examined Duphru as she had gone on study leave to U.S.A. Her certificate was proved by some other doctor. There is some controversy about its admissibility. It is not necessary for our present purpose to go into that controversy for the reasons to be presently stated.