Bachhu vs State of U.P.

Vinod Prasad, J.—Solitary appellant Bachhu s/o Kishore, r/o Farah locality, committed rape upon a five years old infant girl child Omvati, on 6.6.1977 at about 8 p.m., in village and P.S. Farah, district Mathura, and consequently was tried for the said scurrilous offence by 1st Additional Sessions Judge, Mathura in S.T. No. 11 of 1978, State v. Bachhu, and since prosecution successfully anointed his guilt, therefore, was convicted and sentenced by the learned trial Judge for that abashed crime for five years rigorous imprisonment, vide judgment and order dated 26.11.1981, and hence challenge in this appeal, by the convicted appellant, is to his aforesaid conviction and sentence. Recapitulating prosecution allegations, as was got stated in the first information report, Ext. Ka-1, by the informant Raman Lal (P.W. 3), father of the victim, and later on testified by the fact witnesses during trial, were that informant''s daughter, Omvati, (victim) was playing in front of her house on 6.6.1977 at 8 p.m., when the appellant, a barber by caste, on a false pretext to give her crushed ice, enticed her away, and then taking her in Boori Singh Jatav''s pen, outraged her modesty. Adolescent shrieked, which attracted her mother Saraswati (P.W. 4), Kishana (P.W. 1), Ikram, Gopi Lal (P.W. 2) and Surendra Pal towards rape scene, and in the flashed torch lights, they all witnessed carnal copulation being committed by the appellant, who, locating them, sprinted away from the spot. Victim narrated the incident to her mother Smt. Saraswati (P.W. 4). At that time informant Raman Lai (P.W. 3), victim''s father, was not present at his house and after his return, after some time, he was narrated about the abash. Rankled by the faux pas, informant P.W. 3 got crime F.I.R., Ext. Ka-1. scribed from Nathi Lal, and after measuring a distance of 1-1/2 furlong lodged it at P.S. Farah, same day at 11 p.m. as Crime No. 109 of 77, u/s 376, I.P.C.

Head Moharrir Bishambhar Singh registered the crime, prepared chik report, Ext. Ka-3, and general diary, Ext. Ka-4. Investigation into the offence was conducted by S.I. Anwar Mohammad, P.W. 6, Investigating Officer seized and sealed victim''s underwear (material Ext. 1) and frock, and prepared it''s recovery memo, Ext. Ka-5. Thereafter victim was sent for her medical examination. P.W. 6, thereafter, inked statements of the witnesses and subsequent thereto conducted spot inspection and prepared site plan Ext. Ka-6. Investigating Officer had attempted to interrogate victim as well, but she was unable to speak. Investigating Officer had also sent victim''s underwear (Chaddi) for it''s chemical examination. Concluding investigation, P.W. 6, had charge-sheeted the appellant on 27.6.1977, for an attempt to commit rape u/s 376/511, I.P.C., vide Ext. Ka-8, on which basis case No. 879/IX of 77, State v. Bachchu, was registered in the court of C.J.M., Mathura.

Victim''s medical examination was conducted on 7.6.1977 at 10.15 a.m. in Women''s Hospital, Mathura by medical officer Dr. Durga Bai (P.W. 5) who had found her height to be 90 cm, weight 10 kg, teeth 10/10 with space present in both the jaws on both the sides, hair absent, and breast not developed. On her internal examination doctor had noted following facts:

one or two dry white spots present on underwear. Labia majora swollen, red and tender. Hymen present (in-tact), No mark of Injury locally on any other part of body. Underwear preserved and handed over to police for examination.

Doctor had referred her for x-ray for confirmation of victim''s age. X-ray of the victim was done on 8.6.1977 and according to it''s findings epiphysis of both epicondyle of humerus and head of radius and ulna process had not appeared. In wrist joint epiphysis of lower end of ulna had not appeared. Four carpal bones were present. According to x-ray report victim was 5 years of age.

Learned C.J.M., Mathura, summoned the appellant to face trial for the charge-sheeted crime, and since, the same was Sessions triable, he committed the case to the Sessions Court for trial 2.1.1978, where it was registered as S.T. No. 11 of 1978, State a Bachchu.

Ist Additional Sessions Judge, Mathura charged the appellant with offence u/s 376/511, I.P.C. on 25.7.1980, which charge was abjured by the appellant, "who claimed to be tried and hence to establish his guilt, trial procedure was undertaken.

For success in the trial, prosecution examined six witnesses, out of whom. Ram Kishan (P.W. 1), Gopi Lal (P.W. 2), informant father Raman Lal (P.W. 3) and mother Smt. Saraswati (P.W. 4) were fact witnesses. Dr. Durga Bai (P.W. 5) and Investigating Officer S.I. Anwar Mohammad (P.W. 6) were two formal witnesses.

In accused statement u/s 313, Cr.P.C., appellant denied prosecution evidences and pleaded his false implication because of dispute regarding payment of money, which was in relation to the marriage of one Jagdish, in which appellant had worked as a barber.

Learned trial court believed prosecution evidences to be worthy of credence and acceptable and consequently found appellant guilty of the charge and therefore, convicted and sentenced him, as has already been mentioned hereinabove in the opening paragraph of this judgment, vide impugned judgment and order dated 26.11.1981, hence this appeal challenging the said judgment.

When the appeal was called out for hearing, nobody appeared to argue it for the appellant and hence Miss Satya Srivastava, Ld. advocate was appointed as amicus curiae to assist the Court.

I have heard learned amicus curiae for the appellant and Sri A.P. Singh, learned A.G.A. for the State.

Assailing impugned judgment, learned amicus curiae harangued that the appellant has been falsely implicated because of enmity and victim''s medical report does not conclusively establish commission of crime and hence prosecution has failed to the bring home appellant''s guilt. It had withheld it''s star witness, the victim, from testifying before the trial court. According to the statement by P.W. 3, victim had fainted immediately after the incident and hence she could not have divulged appellant''s name to anybody. Crime was committed in darkness at a lonely place and since, nobody could identify the real culprit, therefore, because of suspicion, appellant has been framed in. Non-examination of the victim had not only prejudiced appellant''s defence, but prosecution also had failed to establish the charge. Butteressing and elaborating the submissions, it was incisively argued that on the date, when trial had commenced, victim had gained sufficient majority and, therefore, she could have testified during the trial. Learned amicus curiae further submitted that two prosecution witnesses, i.e., Ram Kishan (P.W. 1) and Gopi Lal (P.W. 2) turned hostile and had not countenanced prosecution story and resultantly on the testimonies of only related, interested, partisan and inimical parents, appellant should not be convicted. Primarily, for the aforesaid submissions, it was urged, that charge against the appellant remained disproved and he be acquitted and be set at liberty and instant appeal be allowed.

Interdicting appellant''s contentions, learned A.G.A. submitted that there was no reason to disbelieve the parents as they had not even remotest, reason to feign a false story against the appellant. There was no enmity between parents and the appellants since prior to the present incident motivating them to fabricate a spurious version. Offence is anointed convincingly bereft of all doubts. Medical examination report and doctors testimony are unambiguous that the victim was a minor and hence present offence could not be a case of consensual intercourse. Medical examination report further proved undoubtedly rapuit carnaliter cognovits was established with her. Appellant, being a professional barber, was very well known to the witnesses and hence it was not an incident of mistaken identity, nor the defence has seriously challenged appellant''s identity as it had not at all questioned the prosecution witnesses on the said aspect. For proving his defence, even on preponderance of probabilities, appellant had not led any defence evidence, except his ipse dixit and bald assertion, which does not inspire any confidence. Concludingly, it was contended that appeal, being meritless, be dismissed in it''s entirety.

I have gone through the impugned judgment and perused the entire record including oral and documentary evidences. Incident had occurred in summer night at 8 p.m. and the appellant is alleged to have committed rape upon an adolescent victim aged about five years. He is a co-villager and was a barber by caste and hence was very well known to the victim and the witnesses. He had not questioned his identification by the witnesses, except throwing a very farfetched suggestion, without any surrounding and attending circumstances, to the parents that at the instance of Lachcho, he (appellant) had been falsely implicated in the crime. Thus appellant''s identity does not remain in doubt. He was identified in flashing of three torches carried by the witnesses. Existence of torches has not been challenged by the appellant. Further it is not the appellant''s defence that no such incident, as alleged by the prosecution, ever occurred. His plea is only that he has been falsely implicated. None of the two witnesses, (P.Ws. 2 and 3), whose presence at the time of the incident has not been challenged, were at all suggested that no such incident as alleged had occurred. Defence has also not challenged date and time of the incident nor there is any suggestion from him on these aspects. Thus, it is proved satisfactorily, clear of all doubts, that the victim was subjected to an attempt to rape at the place, time and date as alleged by the prosecution. From depositions of its witnesses, standing on it''s own legs, prosecution has established it convincingly through depositions of the mother (P.W. 4) well supported by evidence of (P.W. 2), whose evidence is direct as well as supportive res gestae. Not only he had heard uttered words by the victim that appellant had raped her, but had also seen her bleeding from her private parts. Semen stained attire of the victim, seized during investigation, further lend credence to the prosecution charge. The report of the Chemical Examiner is Ext. Ka-9, dated 17.11.1981. Thus, apparently, no doubt exist, so far as sexual assault on the victim is concerned. The only question remains to be determined as to whether the appellant was the main culprit or has been falsely implicated.

On the aforesaid aspect, from the perusal of oral evidences of fact witnesses, it becomes evident that immediately after the incident victim had named the appellant as the rapist. She was an adolescent child and not a trollop. For her to implicate the appellant is an impossibility. Her disclosure statement, as was testified during the trial by Gopi Lal P.W. 2, is an admissible evidence, as res gestae, as well as admissible u/s 157 of the Evidence Act. Her mother Smt. Saraswati P.W. 4 had supported the prosecution case on all material aspects of the allegations. There was no reason for her to spare real culprit and implicate the appellant. She had clearly stated that after seeing them (Witnesses), appellant had run away from the spot. She had witnessed the appellant attempting to rape her daughter. I do not find any reason to disbelieve her testimony which is most natural and confidence inspiring. She was suggested that because of one Lachcho Bania appellant has been falsely implicated by her, but this suggestion was emphatically denied by her. What is most ludicrous is that appellant had not admitted the said defence in his statement u/s 313, Cr.P.C. An analysis of defence case makes it evident that the appellant was trying to fetch out a possible defence for him to escape punishment. His truncated defence plea is a pointer of his guilt. On the contrary, depositions of Raman Lal P.W. 3, disclosure statement of Gopi Lal P.W. 2 alongwith the depositions of parents and of Dr. Durga Bai P.W. 5, unerringly established that victim was raped by the appellant. Her non examination is of no consequence because at the time of the incident she was an adolescent aged about only five years and hence cannot be expected to recollect and recapitulate the incident. In such a view, conviction of the appellant for the charges under Sections 376/511, I.P.C. recorded through the impugned judgment does not suffer from any illegality, infirmity or mis-appreciation of the facts. The conviction of the appellant for the said charges is well merited. Learned trial Judge committed no error in passing the impugned judgment. Albeit, three decades have gone by, but the crime committed by the appellant does not deserve any sympathetic consideration in matter of sentence as well. Appellant sentence is also affirmed. The appeal lacks merit and is dismissed.

The appellant is on bail. His personal and surety bonds are cancelled and he is directed to surrender, failing which, learned trial court is directed to take him into custody and lodged him in jail to serve out remaining part of his sentence.

Office is directed to intimate this judgment to the trial court forthwith for compliance.