ANIL KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) VIRENDRA Saran, J. Anil Kumar s/o Sri Ram Sowak r/o Naramau, P. S. Bithoor, district Kanpur Nagar has filed this criminal appeal against the judg ment and order dated 5-7-1993 of Sri V. S. Shukla, IVth Additional Sessions Judge, Kanpur Nagar in S. T. No. 258 or 1992. The learned Judge has con victed and sentenced the appellant to 4 years R. I. under Section 366, I. P. C. , by the same order the learned Judge has acquitted the appellant under Section 376, I. P. C.

(2.) ACCORDING to the case of prosecution Km. Mamta was aged about 15 years at the time of incident and was a student of Class X in Jawahar Lal Vidyalaya, Kalyanpur, District Kanpur Nagar. On 19-7-1989 she left her house at 9 p. m. for going to the school for depositing her fee. Km. Mamta did not return to her house in the evening and the complainant started searching for her. While the search was on it was learnt that Km. Mamta had boarded Tempo No. UHI 584 on her way back and co-accused Suresh Kumar s/o Ram Shankar Tiwari was driving the same, while appeillant Anil Kumar was the conductor of the tempo. It further came to light that Mamta was seen in the company of the two accused at a tea shop at Bithoor. Thereafter on 22-7-1989 PW 1, Ram Chandra, lodged F. I. R. at P. S. Bithoor, Km. Mamta was recovered by police near Lakhanpur while she was in the company of appellant Anil Kumar on 5-8-1989. At the time of recovery PW 1, Ramchandra, was also present and Km. Mamta was given in his custody vide Supurdaginama (Ext. Ka-2) Km. Mamta was sent for medical examination. She was medically examined by PW 6, Dr. R. Gupta on 6-8-1989. Dr. Gupta found that the hymen of the girl was intact and its margins were regular. There was no swelling or bleeding of any kind. Breasts of Km. Mamta were well developed and auxiliary and pubic hair were present. Dr. Gupta has further noted that there was no injury present on vulva or any other part of the body and that girl was not habitual to intercourse and in the opinion of doctor sexual intercourse was not committed with her on the basis of X-ray examination Dr. Gupta opined that Km. Mamta was aged about 17 years. X-ray report has been duly proved as Ext. Ka-8 by the doctor. After the completion of investigation a charge-sheet was filed against the appellant and one Suresh Kumar and they were committed to the Court of Session.

(3.) IT has been argued by the learned counsel for the appellant that F. I. R. in the present case has been lodged after a considerable delay. There is force in the submission made by the counsel. The incident took place on 19-7-1989 but the report was lodged on 23-7-1989 i. e. after 4 days of the disappearance of the girl. In such a long interval of time a version suited to the informant could be cooked up and, therefore, the allegation of the F. I. R. cannot be accepted at their face value.