Dev Singh vs State of U.P.

A. N. Dikshita, J.—Appellant Dev Singh has filed against the judgment and order dated 27487 passed by Sri R. M. Rai, I Additional Sessions Judge, Nainital in S. T. No. 20 of 1986 convicting the appellant under Section 376 I. P. C. and sentencing him to undergo R. I. for four years'' and a fine of Rs. 2000,. In default of payment of fine the appellant was ordered to undergo R. I. for two months.

The prosecution story is that Narain Dutt s/o Devi Dutt had gone out of his home to some relation. On 19784 Km. Prem Lata had gone to educational institution at Bel Parao for her admission. Around 11 a. m. when she was returning from the school she met Dev Singh s/o Dhan Singh near the farm of one Verma Ji where sugarcane was standing. Dev Singh forcibly took Prem Lats into the farm and made her fall on the ground, opened her nara of Salwar and raped her. There was much bleeding on account of this rape and the girl cried and on such noise and alarm Rama Devi mother of Prem Lata and her sister Deepa Rani rushed from their house. Dev Singh seeing Rama Devi and Deepa Rani fled towards the south. The girl was in a bad state. She was taken by her mother and her sister to her house. The Salwar which was bloodstained was washed on accountof inadvertence of Smt. Rama Devi. On 20784 Narain Dutt father of the girl returned. The mother and the sister on account .of her embarassment and shame did not lodge the report on the date of incident i. e., 19784. However Narain Dutt lodged the report with the police on 20784 at 2 p. m. at outpost Bel Parao, P. S. Ram Nagar, dislrictNainital.

After lodging the report the girl was sent for medical examination Dr S. Palathi, Medical Officerincharge, Women Hospital, Ram Nagar, district Nainital'' examined her on 20784 at 8 p. m. The medical report is as under :

"M/I A dark brown mole on left upper over 12 c.m. below shoulder joint. D/E Breasts, Axillary hairs, pubic hairs are not fully developed.

P/V Hymen ruptured.

Margin of layer is red, slight bleeding present outside the valve Whitish discharge present outside the valve. Vagina admits one finger easily, Pt. complaining of pain on valvel region.

Remarks :There is evidence of sexual intercourse.

Adv :Xray of elbow it. & writs it. (left or right side), for confirmation of age".

After necessary investigation a chargesheet was filed against the appellant.

In support of the prosecution case P. \\V. 1 Prem Lata prosecutrix has Muted that she had left her house around 7 a. m. for getting admission in the school in Class IX. When she was returning from the school through Kachcha road and reached near the sugarcane field of one Varma Sahib, Dev Singh accused met her. She knew the appellant from before. The appellant forcibly took her m sugarcane field and after opening the Nara of Salwar raped her by insertma her maleorgan into her vagina. She experienced much pain and blood came out and flew on the thighs. Twice Dev Singh commuted intercourse forcibly She raised hue and cry. The appellant then stood up. On her cries her mother Rama Devi, P. W. 2 and her sister Deepa Rani reached the place. Dev Sihgh appellant then fled away. Her mother arid sister took her to their house. The tire facts were narrated by Km. Prem Lata, P.VV. 1 to her mother. She has rued that her father was not present at home and had gone to some relation. On k turn the next day she narrated the incident in entirety to her father. Her father look her to the police outpost Bel Parao where an F. I. R. was lodged. She was medically examined in the hospital at Ram Nagar. She has also stated that the Salwar that she was wearing, had bloodstains on it, but her mother had washed it. At the time of the incident when she was raped, she has stated that her ape was 13 years 4 months. This witness was put to a very grueling crossexamination but nothing emerged so as to discredit her testimony. Even in her examination she has stated that on account of this forcibly sexual intercourse much blood had out of her private part (vagina), it is thus evident that Prem Lata, P''. \\V. 1 was raped much against her will and had never consented as she has her self deposed that the sexual intercourse was forcibly done.

Smt. Rama Devi, P. W. 2 is the mother of Prem Lata, P.W. 1. She has stated that around 11 a. m. she heard cries from the sugarcane field of Varma Sahib. She and her daughter Deepa ran towards that place. The girl Km. Prem Lata , P. W. 1 was lying unconscious and Dev Singh was near her. Appellant Dev Singh was known to her from before. On seeing this witness and Km. Deepa Rani the accused fled away. The girl was brought to the house in an unconscious state. After Prem Lata, P. W. 1 regained consciousness she narrated the entire incident. She has stated that her husband Narain Dutt was not at home and had gone to his daughter Kamla. The entire incident was narrated to the father Prem Lata, P.W. 1 and this witness. She has also stated that when she brought girl in unconscious state to her house, she was bleeding from her private part. The Salwar which had bloodstains was however, washed. In her crossexamination she has stated that she had rushed to the place on hearing the noise. She too was put to a very searching crossexamination but nothing could be extracted which may create a dent in her testimony. She has stated that she had left for police outpost around 12.45 while her husband had arrived around 10 O''clock. This witness was again tested as regards the age of Prem Lata, P. W. 1. She has stated that Jagdish her eldest son is aged about 22 years the next issue Deepa Rani is yonger by 2� years while Prem. Lata is 3 years'' younger to Deepa Rani. She has categorically denied that at the time of the incident the age of P.W. 1 (Prem Lata) was between 1718 years. This witness has narrated the age of Jagdish, Deepa and Prem Lata on the dale of her statement. The incident is of 1984. She was examined after 2� years i.e., on 12187. From the above it is clear that the age of Km. Prem Lata was less than 14 years. There is nothing in her testimony which is unbelievable so that her testimony may become incredible.

Narain Dutt, P.W. 3 is the father of Prem Lata, P.W. 1. He has corroborated the allegations in the F. I. R. He has clearly stated that he had returned from his daguther Karnla''s place on 20784 at about 10 a. m. and had gone for lodging the report between 12.30 and 12.45 p.m. (after 2 hours or 2� hours. This witness was again put to a searching crossexamination. He has stated that he married Smt. Rama Devi, P. W. 2 on 5563. His first son Jagdish was born on 27365, Deepa Rani is his second issue 2� 3 years younger to Jagdish while Prem Lata, P. W. 1 is younger to Deepa Rani by 3 years. This witness being the father has clearly stated that at the time of the incident the age of Prem Lata, P W. 1 was less than 14 years. However, this witness has further stated that Prem Lata is three years younger to Deepa and Vina is two years younger to Prem Lata. On the date of her statement the age of Veena was 11 years. Even this statement in no case affects the prosecution version because this witness has stated that presently i.e., on 12187 the age of Veena is 11 years. There is no material to disbelieve the testimony of this witness. On the other hand, he has come forward with a of truthful deposition and is wholly a reliable witness.

Dr. Smt. S. Palathi, P. W. 4, Medical OfficerIn charge, Women''s Hos

pital, Ram Nagar had examined Km. Prem Lata, P. W. 1 on 20784 and 21784.

Her medical report has been quoted above. The doctor proved the medical report

as well as the supplementary report. She was of the view that the age of Prem

Lata, P. W. 1 was above 16 years but below 18 years. When crossexamined as

regards the condition of hymen she has stated that the margins of the hymen was

red. She has clearly stated that hymen was ruptured not from before but instantly.

She has also stated that even on the day when she had examined Km. Prem Lata,

P. W. 1 there was bleeding from her vagina. She has denied that this bleeding

was on account of the monthly course. She has admitted that she did not examine

semen but has admitted that vital discharge was present outside the valve. This

witness has stated that she is an expert Gynaecologist for the last 14 years and had

examined very many cases of sexual intercourse. From her experience she has

stated that sexual intercourse was committed. She has also stated that even with

out microscopic study sexual intercourse can be found. She was firm in her state

ment that sexual intercourse was committed with Prem Lata, P. W. 1. There is

noting in her statement which may reveal that rape was not committed, rather

she is of the firm view that the sexual intercourse was committed.

Mahesh Chandra Pant, PW 6 is an Assistant Teacher in the Government

Higher School, Bel Parao, P. S. Ramnagar District Naintal. He has stated that he

has brought the school register which is maintained at the time of the admission of

the students. It is on the basis of this register that admission roll numbers and

transfer certificates are issued. In page 42 of this register entry regarding Km.

Prem Lata is found. The date of birth of Prem Lata is found recorded as

8471. Such an entry has been recorded by the PrincipalSri Shanti Swaroop

Gupta whose writing and signatures be recognised. A certificate to that effect

has been issued showing the age of Km. Prem Lata as 841971. There is

nothing in his statement which may not be believed. Mahesh Chandra Pant,

PW 5 is a teacher and is a reliable witness who has deposed that Km. Prem Lata

was born on 8471 on the basis of the documents. Thus, age of Km. From

Lata on the date of the incident would be around 13 years.

Learned counsel for the appellant has submitted that there is delay

in lodging of the F. I. R. The incident is of II a. m. on 19784 while the

report was lodged on 20784 at out post Bel Parao, Ram Nagar which is at a

distance of about 6 Kms. from the village Nandpur where family of Narain Dutt,

PW 3 resided. The submission is misconceived and does not deserve any

Indulgence. Such a submission is wholly in comprehensible looking to the fact

that a Hindu girl who is found to be less than 14 years has been raped and

would prompt female members of the family immediately, without the consent

of the male members of the family to rush to the police station to lodge a report.

Rama Devi, PW 2 (mother), Deepa Rani, PW 5 (elder sister) and Prem Lata, PW 1

could not have the courage to go to the police station without the permission of

Narain Dutt, PW 3. After Narain Dutt reached the house around 10 a. m. and

after finding out facts for some time he must have pondered over the situation

and ultimately decided to lodge the report. After all Narain Dutt, PW 3 was the

father and he had to bear the fruits of lodging a report thus charring the future

of his daughter. However, his decision was there to lodge a .report. It cannot

be said that there is delay in the lodging of the F. I. R. It is thus held that

there is no delay in lodging the F. I. R. and the explanation set forth with in

lodging the report on 20784 is wholly convincing and reasonable.

Learned counsel for the appellant then submitted that the age of Prem

Lata, PW 1 has been wrongly described by the prosecutrix herself,her mother

(Rama Devi), PW 2 and her father (Narain Dutt), PW 3. All these witnesses

have stated that on the date of the incident the age of the girl was below 14

years. This fact finds adequate support from the register of the college where the date of ''birth of Km. Prem Lata is recorded as 8471. It is thus clear that on the date of the incident her age was around 13 years 3 months and 11 days. Much stress has been placed by the learned counsel, for the appellant as regards the age on the basis of the testimony of PVV 4 (Dr. Smt. Palathi), Dr. Palathi has found radius upper epiphysis fused. In the opinion of fie doctor this takes place between 14 to 16 years. This information is based on the Xray report. No doubt Dr. Palathi, PW 4 has on the basis of the Xray report, stated the age of Prem I.ata between 14 to 16 years. But it appears that this witness is unmindful of the fact that the prosecutrix belongs to a hilly region where life is rough and rugged. It maybe that the growth of the bones in such hazardous are thicker than in other regions.

Learned counsel for the appellant then submitted that the prosecution

has withheld Deepa Rani from being produced in the court. It is for the pro

secution to produce any witness or not. Such a right has been exercised by the

prosecution. Her mere nonproduction has in no case affected the merits of

I ho case.

Learned counsel for the appellant then produced a certificate from

the Head Master, Madhyamik Vidyalaya, Hempur Gaibuwa which reads as

under :

This certificate shows that Dev Singh s/o Dhan Singh of village Khempur, Gaibuwa, Tahsil Kaladhongi, district Nainital''s date of birth is 241079 at No. 264 of the Admission Register. Apparently, this certificate is forged or false. Learned counsel for the appellant has stated that the age be read to be 241069 and there seems to be some error. It only reflects as to how such fake certificates are issued and in any case no precaution was taken by the Principal Anup Singh Negi of the institution situate at Khempur Gaibuwa. Anyhow this certificate is of no avail though it shall form part of the record.

I4. Learned counsel for the appellant has then submitted that the justice be tempered with mercy and compassion looking to the age of the appellant that the appellant is of young age. He has stated in his statement under Section 313, Cr P. C. on 1931987 that his age was 15 years. The incident is of July 1984. It would thus mean that at the time of the incident on 19784 the appellant is only of 12 years. Dr. S. Palathi, PW 4 has found that sexual intercourse was committed with Prem Lata, PW 1 and wide discharge was found in the valve. It s not disputed that semenal discharge does not take place at the age of 12 years.

The punishment provided for committing rape was not less than 7 years. However, it has been left to the court that it may for adequate and special reasons mentioned in the judgment impose a sentence of imprisonment for a term of less than 7 years. It is really unfortunate that the learned Sessions Judge found that the accused is guilty of an offence under Section 376, IPC and it stands proved and the appellant is liable to be convicted for the same. However, ignoring the tenets of the Statute he has awarded a sentence of 4 years'' R. I. and Rs. 2000 as fine while thinking that the ends of justice would be met. Neither any adequate nor special reasons have been mentioned in the judgment which may have prompted the learned Sessions Judge to award a lesser sentence than 7 years. It is thus apparent that Sri R. M. Rai, I Addl. Sessions Judge, Nainital is not aware about the provisions and has awarded the sentence in an arbitrary manner which only deserves to be spurned. If the learned Sessions Judge was of the view that the circumstances of the case warrant lesser sentence then the proviso as engrained in Section 76(1), IPC deserved to be complied with. But this has not been done.

At this stage, it may not be appropriate to issue notice to the appellant

for the enhancement of the sentence when the c:\\so is over and the judgment

is at its fag end. With the gruesomeness with which the rape was committed

on a minor girl, this appeal also deserves to be dismissed with the same

ruthlessness.

In the result the appeal fails and is hereby dismissed. The appel

lant shall undergo the sentence awarded to him. In case he is on parole, he

shall be taken into custody forthwith to serve out the sentences. His bailbonds

stand cancelled.