Brij Kishore (in Jail) vs State of U.P.

N.K. Mehrotra, J.—This is an appeal u/s 374(2) of the Code of Criminal Procedure against the judgment and order dated 6.2.1988 passed by the I Ind Additional Sessions Judge, Kheri in Sessions Trial No. 207 of 1986, convicting the Appellant u/s 376 of the Indian Penal Code and sentencing him for seven years'' rigorous imprisonment.

In this appeal at the time of hearing, neither the accused-Appellant nor his counsel appeared to argue the appeal.

Since this appeal was filed in July, 1988 and the crime pertains to the date 6.1.1985 and there was sufficient notice to the Appellant''s counsel, it was considered proper in the interest of justice to hear and dispose of the appeal on merit after following the decision of the Supreme Court in Bani Singh and ohters Vs. State of U.P., . It was held by the Supreme Court that:

It is the duty of the Appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385 and 386 of the Code. The law does not enjoin that the Court shall adjourn the case if both the Appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial court.

In this case, it was not found a fit case to grant indulgence when the appeal was filed in the year 1988 and since then, it is pending and there is sufficient notice to the learned Counsel for the Appellant, therefore, I heard the learned Additional Government Advocate, perused the record and made scrutiny of the evidence on record myself.

According to the prosecution case, the prosecutrix Km. Prema Devi aged about 14 years and accused Brij Kishore are the residents of village Belwamoti in district Kheri. On 6.1.1985, Pancham Lal, the father of Km. Prema Devi was doing some work in his wheat field. Km. Prema Devi was also collecting the fodder for cattle. At about 2.00 p.m. Km. Prema Devi cried suddenly and on her cry Pancham Lal rushed towards her daughter and other persons Keshwa Ram, Radhey and Medai Lal who were working in the adjoining fields also rushed to the place of occurrence. They all noticed that accused Brij Kishore was committing rape with Km. Prema Devi in the same field. On hue and cries, accused Brij Kishore ran away. The witnesses made an attempt to chase him but could not apprehend him. Km. Prema Devi was lying there and her clothes were fully stained with blood. She was then brought to her village and thereafter, she was brought to the police station by her father Pancham Lal where the first information report was lodged at about 9.30 p.m. on 6.1.1985 against the accused. On 7.1.1985 the prosecutrix was medically examined by Dr. (Smt.) P. L. Singh, Medical Officer. At about 6.15 p.m. she found that her hymen was torn at 6 O''clock position. Fresh tear margins were red and tendered. Clotted blood was present on the vaginal wall. The tear had started bleeding after removal of clot. Vagina had admitted one finger with difficulty. The clothes of the girl were soaked with blood. In the opinion of the doctor, rape or an act like rape was committed. Thereafter, X-ray examination of Km. Prema Devi was conducted on 11.1.1985, at District Hospital, Lakhimpur by Dr. S. P. Srivastava, Radiologist. In her opinion, the age of Km. Prema Devi was below 14 years but physically she was 10 or 11 years old.

The case was investigated by S.I. Sri Chhotey Lal who had recorded the statements of the witnesses, prepared the site plan (Ext. Ka-7) and thereafter, submitted the charge-sheet (Ext. Ka-8).

The prosecution in support of its case has examined Km. Prema Devi (P.W. 1), Keshav Ram (P.W. 2), Constable Sri Nath Singh (P.W. 3), Dr. (Smt.) P. L. Singh (P.W. 4), Rameshwar Prasad Shukla (P.W. 5), the scribe of the written report, and S.I. Chhotey Lal (P.W. 6). Out of these six witnesses, Km. Prema Devi is the prosecutrix. She has fully corroborated the prosecution case. P.W. 2 Keshav Ram is the eye-witness of the incident who was cutting sugar cane crop in the nearby field. He had seen accused Brij Kishore committing rape on Km. Prema Devi who was lying on the earth. P.W. 4 Dr. (Smt.) P. L. Singh had proved the medical report. The other witnesses are formal witnesses. P.W. 3 constable Sri Nath Singh has proved the chik report (Ext. Ka-1) and memo of under-wear of Km. Prema Devi (Ext. Ka-3). The learned trial court after discussing the evidence followed the observations of the Supreme Court in the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, , and after keeping in mind the observations of the Supreme Court, he has placed reliance on the statement of the prosecution. He has opined that he found nothing material on record to discredit the testimony of Km. Prema Devi. He has recorded a finding that a virgin girl would not come forward in normal course in the Court to depose against anyone about the offence of rape. The statement of the prosecutrix is supported by one eye-witness Keshav Ram. The father of the prosecutrix, Pancham Lal had died after the incident, so he could not be examined.

The medical evidence corroborates the prosecution story that the rape was committed. The medical evidence proves the age of the prosecutrix as 14 years. Therefore, the factum of consent, if any, is immaterial. The defence of the accused is that he has been falsely implicated on account of party bandi in the village. The learned Sessions Judge has held that the bald statement is not sufficient to rebut the allegation of the prosecution. He has held that neither the prosecutrix nor her parents had any animus against accused Brij Kishore to falsely implicate him in this case in such a heinous crime, which outrages the modesty of the prosecutrix.

I have perused the reasoning of the trial court in the judgment and have also cross-checked those reasons with the evidence on record of the lower court and I have satisfied myself that the reasonings and findings recorded by the trial court are consistent with the material on record. I have also seen the grounds in the memo of the appeal. It has been pleaded in the memo of the appeal that the medical evidence indicates that the prosecutrix was not raped and she received the injuries as a result of fall or the injuries are self-suffered. I do not agree with the arguments of the learned Counsel for the Appellant.

It has been further pleaded that there is no mark of violence on the back of the prosecutrix. In my opinion, the absence of mark of violence is immaterial. In this case, the age of the prosecutrix is about 14 years. Because in the absence of mark of violence, it can be argued that the prosecurix was the consenting party in this case but because of the age of the prosecutrix, this argument has no force.

The next pleading in the memo of appeal is that the presence of the eye-witness is highly improbable. I do not find any force in this ground simply because of the reason that the occurrence took place at about 2.00 p.m. in the day time when most of the farmers are found working in their fields.

In view of the above, I fully agree with the findings recorded by the learned Sessions Judge that the charge u/s 376 of the Indian Penal Code is fully established beyond all reasonable doubts against the accused-Appellant. The accused has been convicted u/s 376 of the Indian Penal Code and has been sentenced to seven years'' rigorous imprisonment, which is the minimum punishment. There is no circumstance available in which there can be a second thought for reducing the sentence.

In view of the above, the appeal has no force. The appeal is dismissed. Let a copy of this judgment be sent to the Chief Judicial Magistrate concerned within ten days for immediate compliance of this order and report within one month.