VINOD KUMAR Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) HEARD Sri S.P.S. Panwar learned senior advocate & Sri Sandeep Tandon learned counsel for the applicant and Sri H.C. Pandey learned A.G.A. for the State.

(2.) PERUSED the record. According to the prosecution version, the victim came on 28.11.2004 at Rudraprayag to purchase some items. The applicant enticed her and taken away to the 'Mela. When they came from 'Mela in the evening, the applicant asked her to stay with the lady police at his residence. Thereafter, the applicant committed the rape upon her in his house during the whole night. Statements recorded under sections 161 & 164 Cr.P.C. were recorded by the prosecution. It has been alleged in the FIR that there was love affairs between them.

(3.) THE learned counsel for the applicant has referred the decision of the Hon'b1e Supreme Court in Rafiq vs. State of UP. 1980 sec (Cri) p/947 in which it has been held that the argument cannot be accepted that regardless of the specific circumstances of a crime and criminal milieu, some strands of probative reasoning which appealed to a Bench in one reported decision must mechanically be extended to other case. Whereas, the prosecution relied upon the decision of the Hon'ble Suprerme Court in State of M.P. Vs. Munna Choubey and another 2005 SCC (Cri) p/559 in which it has been held that the offence of rape in its simplest term is "the ravishment of a woman, without her consent, by force, fear or fraud", or carnal knowledge of a woman by force against her will". The learned counsel for the applicant contended that aoresaid case is not applicable in the present circumstances of the case and it cannot be extended mechanically to other cases. Perusal of the pathological report shows that there is no evidence of spermatozoa. Gynological report of p/v shows there is no evidence of hymen or any torn or any injury on private parts of the victim. The learned counsel for the applicant contended that the medical report is not corroborating the incident as alleged by the prosecution.