Buddhu Singh @ Anil Kumar vs State of U.P.

Vinod Prasad, J.—Appellant Buddhu Singh alias Anil Kumar was tried and convicted for an offence u/s 376. I.P.C. for outraging modesty of an adolescent damsel, X. aged about ten years, on 31.5.1980 at 5 p.m., inside his house situate in Jaswant Nagar, district Etawah and was sentenced to 5 years R.I., by IVth Additional Session''s Judge, Etawah, in S.T. No. 299 of 1980. State v. Budhu Singh, relating to P.S. Jaswant Nagar, and hence this appeal by the convicted accused. According to prosecution case, mother of the victim had already expired and she was residing with her father and grandmother. Her father was a barber and on the date of the incident had gone to village Khilawali. P.S. Jaitpur in connection with his vocation and, hence was not present at his residence. Oral F.I.R., Ext. Ka-1, regarding the incident was lodged by the victim herself at P.S. Jaswant Nagar at 7.55 p.m. same day as Crime No. 175 of 1980, u/s 376, I.P.C., covering a distance of eight miles.

Constable Rama Shankar Pandey, scribed and registered orally dictated F.I.R. by preparing chick F.I.R., Ext. Ka-1, and corresponding G.D. entry Ext. Ka-3. He also seized victim''s kirtle (petticoat), material Ext. 1, and prepared its recovery memo Ext. Ka-2. The apparel was sealed regarding which recovery memo Ext. Ka-2 was prepared. S.I. Lallan Prasad Shukla, of P.S. Jaswant Nagar. P.W. 3. in whose presence the crime was registered, commenced investigation, recorded statements of informant victim. Head Moharrir Rama Shankar Pandey, Smt. Ram Kali and witnesses of Ext. Ka-2. He dispatched informant victim to the hospital for her medical examination. P.W. 4 constable Sukhvir Singh of P.S. Jaswant Nagar had brought the victim to the doctor at 9.10 p.m. same day and Dr. S. Katiyar. Medical Officer, P.P. Centre, Etawah, had medically examined her on 1.6.1980 at 10.30 a.m. vide Ext. Ka-6. The doctor had noted that she was 4.5 feet in height, having 75 lbs. weight. Her secondary characters-her breasts were not developed, axillary and pubic hair were absent, and she had pain in her abdomen and was feeling difficulty in stepping. Her hymen was torn with fresh tear at 6 O'' clock position. On touch blood oozed out from it. With difficulty her private part could admit only one finger. Vaginal smear was taken by the doctor and was sent for histopathological examination. For determining her age, she was advised for X-ray of wrist and elbow joints. The doctor had opined that the victim was subjected to forceful carnal copulation within 24 hours. After victim''s X-ray and pathological reports, P.W. 5, had given a supplementary report, Ext. Ka-7 on 30.6.1980. Pathologist''s report negated the presence of spermatozoa. X-ray report revealed non-fusion of epiphysis of radius and ulna bones in the wrist and elbow joints. Both medial and lateral epicondyle and lower end of humerus were not fused. Looking to the X-ray plate and report, doctor P.W. 5 adjudged victim to be ten years of age.

During investigation, Investigating Officer P.W. 3, had interrogated occurrence witnesses Prem Bihari, Brajesh Kumar and Jagdish, had sketched site plan, Ext. Ka-4, on 8.6.1980 and after accused-appellant surrendered in Court on 30.6.1980, interrogated him and concluding his investigation charge-sheeted the appellant vide Ext. Ka-5.

Appellant-accused'' was summoned by the Magistrate and his case was committed to the Session''s Court for trial, where it was registered as S.T. No. 299 of 1980. State v. Buddha Singh alias Anil Kumar. Trial Judge charged the appellant u/s 376, I.P.C. on 18.11.1980 and since accused-appellant pleaded not guilty and claimed to be tried that his trial commenced.

To establish it''s case and bring home appellant''s guilt, prosecution, in the Sessions trial, examined five witnesses, out of whom informant victim P.W. 1 and Brijesh Kumar P.W. 2 were the fact witnesses. Investigating Officer Lallan Prasad Shukla. P.W. 3, Constable Sukhvir Singh P.W. 4 and Dr. S. Katiyar P.W. 5 were formal witnesses.

In his statement u/s 313. Cr. P.C., appellant denied the prosecution evidences incriminating him in the crime and pleaded his false implication because of party rivalry. He further narrated that his brother Rajjan was also prosecuted for the offence of molestation u/s 354. I.P.C., but was acquitted. To pop up his defence, appellant examined Bester Baboo as D.W. 1.

IVth Addl. Sessions Judge, Etawah, after vetting evidences led in the trial and after critically appreciating facts and circumstances involved in the case concluded that the guilt of the appellant was established beyond any doubt and, therefore, convicted him for the framed charge and sentenced him to five years R.I., which conviction and sentence is now under challenge in the instant appeal.

On the aforesaid background of facts when the appeal was called out for hearing, initially no body appeared and, therefore. Sri C. S. Chaturvedi was appointed as amicus curiae for arguing the appeal for the appellant. Sri K. M. Misra, learned counsel subsequently appeared for the appellant and hence I have heard both of them in support of the appeal. Sri A. P. Singh learned A.G.A. was heard in opposition.

Assailing impugned judgment of conviction, learned amicus curiae submitted that the victim was residing with her grandmother and hence it is very bizarre that the grandmother will not lodge F.I.R. and permit adolescent damsel to dictate it. They have further submitted that because of enmity the appellant was falsely implicated in the crime and medical report contradicts ocular version. Great emphasis was laid on the deposition of defence witness D.W. 1 to contend that the entire incident is prevaricated and appellant had been framed in due to enmity. Arguing on sentence it was submitted that appellant is now 60 years of age and is sick and hence be treated with compassion. They primarily argued that the appeal be allowed and appellant be acquitted, or in any case, a lenient view be taken while sentencing him if he is not given a clean acquittal.

Learned A.G.A., traversely, submitted that the prosecution has successfully established the charge unambiguously. Victim had no reason to feign pretentious charge against the appellant as she had no animus against him. Defence could not suggest her any Party rivalry and, therefore, suggestion plea that appellant was -falsely implicated because of enmity is mendacious defence without any basis. Medical examination report, supplementary report and pathological report, with doctor''s testimonies all are corroborative of prosecution story in it''s entirety, dissipating defence plea, and lending credence to appellant''s guilt. Rapuit carnaliter cognovits (Rape) with the informant by the appellant is proved to the hilt, consequently appellant''s appeal be dismissed as meritless contended Ld. A.G.A.

I have pondered over rival submissions and have vetted oral and documentary evidences on record. It is apparent that in the incident in question, a ten year old unmarried girl was subjected to most scurrilous abashed crime, as she was robbed off her most precious honour by the appellant, who orchestrated the crime in a well-planned deceitful manner by alluring her to his house on a fib of giving her grains. Oral F.I.R. Ext. Ka-1 was dictated by the victim herself at the police station, at a distance of eight miles, at 7.55 p.m. and hence is prompt. Consequently, there was no possibility of it being manufactured, cooked or fabricated. Perusal of it indicate that it is concise and contains only uneschewable facts without being imaginary. This F.I.R. has been proved by the victim to be in her narration and defence had failed to shatter her testimonies. Allegations contained in it has been convincingly corroborated by the victim and P.W. 2. Inspite of searching and lengthy cross-examinations, accused failed to fathom out any damaging evidence from them. Besides confirming narration contained in the F.I.R., victim had deposed that in lieu of money as shaving charges, his father gets grains and it was on such a pretext that the accused has taken her to his house. P.W. 2 and other witnesses had arrived at the incident scene on her shrieks. She had bleeded and faeces had also come out. After rape she was brought to her house by the witnesses and then she had narrated the incident to her grandmother and thereafter she was brought to police station by her grandmother, Jai Narain and Vishwanath. She identified her thumb impression on the recovery memo of her cartel. She further stated that her father had gone to village Khilauli since last two or three days and was not at home and she was admitted in the hospital for eight days. From her village she had proceeded on a bullock cart (Ballgadi) at 6 p.m. and thereafter had gone to P.S. on a roadster (Ikka). No inquiry was made from her prior to her lodging F.I.R. at the police station. She further testified that since last two years accused had given the grains and when she was playing at the entrance door (Dehari) that accused had called her. Most of her cross-examination centres around insignificant and immaterial aspects which do not discredit her depositions. There is hardly any exaggerations and embellishments to castigate her testimonies, which is unblemished, confidence inspiring and creditworthy. No worthwhile criticism of her narrations could be pointed out by the appellant counsel. Singularly, her testimony is sufficient to anoint appellant''s guilt and establish prosecution case.

Victim''s story is fully and authentically corroborated by medical evidences both oral and documentary. Doctor, P.W. 5 had deposed that within twenty four hours informant was raped and she was only ten years of age. In her cross-examination she had cemented rape charge by stating that but for rape, informant victim could not have sustained vaginal tear, measurement of which was not possible. Thus, prosecution had popped up its case successfully by oral evidences. No convincing argument could be advanced by appellant''s counsel and amicus curiae to discredit prosecution version. The incident had occurred inside appellant''s house where only he and the victim were present. The victim was a young and adolescent girl of 10 years and, therefore, it will be preposterous to cogitator that she will fabricate an imaginary story against the appellant of being her rapist and narrate pretensions. There was no reason for her to lie through her teeth. Defence had failed to indicate that, both P.Ws. 1 and 2. were perjurers. Informant''s kirtle contained not only had stains of rape but was also soiled with faeces stains, which had oozed out during carnal intercourse. Injuries were also sustained by her on her private part, as is clear from the testimony of the doctor as well as Ext. Ka-6. Thus, prosecution had established sexual assault on P.W. 1 beyond any shadow of doubt. In such types of incidents. Courts should examine broader probabilities of evidences rather than swayed by insignificant truncated discrepancies which are not fatal to the prosecution case.

Castigation of the impugned judgment for the reason that grandmother had not dictated the F.I.R. and left the victim at her mercy is an unappealing and facetious contention, which deserves to be repelled out right. Informant was never questioned on the said aspect and without affording any opportunity to the prosecution to explain a circumstance, emulating it''s story is uncalled for. P.W. 1, who was outraged of her modesty, during her testimony in Court, stood fast test of her cross-examination and never faltered. As discussed above, the false Implication of the appellant is totally ruled out and, therefore, the prosecution had successfully proved appellant''s guilt and, therefore, confirm appellant''s conviction.

Looking to the proven crime committed by the appellant, sentence awarded on him also does not appear to be excessive or not commensurate with his guilt and seems to be on the lenient side. Although three decades have gone by but considering his depraved psychology he cannot be absolved from imprisonment and hence I am not inclined to interfere and take a lenient view on the question of sentence as well. Appellant''s appeal Is dismissed in toto. Appellant is on bail. He is directed to surrender forthwith to serve out remaining part of his imprisonment. In case the appellant does not surrender within a period of three weeks from today, trial Judge concerned is directed to issue non-bailable warrant of arrest against him, get him arrested by all means and lodge him in jail to serve out his entire sentence. The appellant however, is conferred with the benefit of set off and period of imprisonment already undergone by him shall be included while calculating his total period of imprisonment.

Let a copy of this judgment be certified to the trial court for it''s intimation and further action forthwith.