Kunwarey vs State of U.P.

I.M. Quddusi, J.—Heard Archana Misra, learned amicus curiae and learned A.G.A. as well as perused the lower Court record.

This Crl. Appeal has been filed against the judgment and order dated 221194 passed by the Additional Sessions Judge Unnao in S.T. No. 488 of 1992 convicting and sentencing the appellant to three years R.I. under Section 376 read with Section 511 I.P.C.

Brief facts of the case are that on 25392 when the complainant Sri Sukhnandan''s grantdaughter Km. Sushila was collecting ''Gagti'' of gram in her field, the appellant accused Kunwarey son of Pyarey Pasi came over there from the side of Pahasa and took her forcibly in Arhar field and after removing her ''Salwar'' started to commit rape upon her. On the alarm raised by her the witnesses of the village namely Jamuna son of Laxman Minni son of Mahesh and other villagers rushed to the spot, who were doing work in their adjoining fields. On seeing them, the appellant Kunwarey ran away from there. It is mentioned in written report that incident took place at about 4.00 p.m. The complainant''s granddaughter came weeping to her house and narrated the above facts to her mother and other persons. It was further mentioned in written report the ''Salwar'' and ''Kurti'' which she put on her body at the time of occurrence had stains of human blood and semen and after keeping them at her house she has come to police station. Regarding the occurrence the complainant got scribed report by one Babadin of Asoha at the police station Asoha and lodged the same on that very day at 6.45 p.m.

On the basis of the said written report a case under Section 376 IPC was registered against the appellant. The prosecutrix Km. Sushila was sent to District Hospital Unnao on 26392 where Dr. S. Verma medically examined her at 2.30 p.m. On external examination she found her height 128 cm. weight 29 kg. and teeths 14/14. She did not find any mark of injury on her body. No public and axillary hairs were present. Her breasts were not developed. On internal examination she also found that no mark of injury was found on her private parts and hymen was found intact. Vagina could admit tip of little finger only. Vaginal smear was taken and sent to pathologist for the presence of dead or alive spermatozoa. She was advised for Xray of right knee, elbow and wrist joint for confirmation of age. She opined that no rape was committed on her. On personal observation it appeared that she would be aged about 1213 years. She also proved injury report Ext. Ka2. She also proved supplementary examination report of Km. Sushila Ext. Ka4 which showed that no living or dead human spermatozoa was seen. Xray report revealed that eplphysis of all joints of wrist, knee, elbow was not fused. According to Radiologist her age was below fourteen years. In cross examination, the doctor admitted that fusion had not started in the elbow joint.

PW 1, Jagunath had stated that he had not seen the accused Kunwarey taking Km. Sushila forcibly in Arhar field. He also stated that he had not seen any occurrence of committing rape by the accused appellant, Kunwarey with prosecutrix Km. Sushila.

In crossexamination PW 1, Jagunath disowned his earlier statement recorded by the investigating officer under Section 161 Cr. P.C. He stated that Km. Sushila did not narrate him regarding the occurrence. The PW 1 had been declared hostile.

PW 2 Minna had also stated that he had not seen the accused appellant Kunwarey taking prosecutrix Km. Sushila in the field of Arhar. According to him, the appellant never committed rape with Km. Sushila. He had also stated in his statement that he had not seen the blood coming out of the body of Km. Sushila and she never told him that appellant committed rape with her. The PW 2 had also been declared hostile.

The prosecutrix Km. Sushila in examinationinchief had stated that the appellant could not commit rape. However, at some other place she had stated that the appellant had committed rape with her but she had narrated different stories in her statement. At one place, she had stated that the appellant had come from the side of Pahasa village and caught hold of her neck. When she started crying, the appellant ran away. In the crossexamination the prosecutrix Km. Sushila stated that the appellant pressed her neck and he committed rape with her. Since the appellant pressed her neck. She could not make alarm. Thereafter she became unconscious.

PW 5, Dr. Sushila Verma medically examined Km. Sushila. According to medical opinion no internal or external injury was found on her person and her hymen was also found intact and according to medical report no rape was committed with her.

Learned amicus curiae has submitted that PWs 1 and 2 became hostile and medical report does not support prosecution story she has further submitted that the appellant has been falsely implicated due to enmity and as such, the appellant is liable to be acquitted.

Learned Additional Sessions Judge has held in her judgment and order dated 221194 that there was no reliable evidence on the point of age of the prosecutrix. However, it was held that she was below 14 years according to the Xray report. As such, she was minor at the time of incident and the question of consent does not arise. Further learned Additional Sessions Judge has held that on the basis of medical evidence no injury was found on the private parts of the victim on external or internal examination. There was no vagina penetration and the hymen was found intact. Therefore, there was no penetration even in part by the accused as is required under Section 376 IPC. Relying upon the statement of the prosecutrix PW 4 partially, the trial Court had come to the conclusion that the appellant Kunwarey could not commit offence of rape as defined under Section 376 IPC and he had only attempted to commit rape by breaking string of her Salwar and undressed her after falling her on the field and as such held guilty of an offence of attempt to commit rape.

This Court finds no reasonable ground to interference in the findings of the learned Additional Sessions Judge. The conclusion drawn by the trial Court is correct and within the probability of the case on the basis of evidence on record.

The learned Session Judge in her judgment and order dated 22 1194 has mentioned that she had heard learned Counsel for the accusedappellant on the quantum of sentence. The learned Counsel for the accused had urged to release the appellant on probation. He was about 18 years of age at that time. He had been in jail since 31392 to 12193 and 2894 to 221194. He might have suffered pain, agony and tension and might have also suffered humiliation in the society. As the offence was proved to attempt to commit rape. Learned trial Court was inclined to take a liberal view and keeping in view all the fact and circumstances of the case, she was of the view that the sentence of three years R.I. under Section 376 read with Section 511 IPC would be sufficient to meet the end of justice.

This Court has also gone through the facts and circumstances of the case. The appellant was aged about 20 years on the date of delivery of judgment by the trial Court i.e. 221194 as observed by the learned Additional Sessions Judge in her judgment. The date of Commission of offence was 25392 i.e. about 2 years before the delivery of judgment and thus the appellant must have been aged about 18 years on the date of occurrence. It was not considered by the learned Additional Session Judge to release the appellant on probation although the learned Counsel had urged for the same. By now the appellant has also spent about 22 months in jail. He remained in jail since 31 392 to 12193 and 2894 to 221194 and from 3112003 till date.

Therefore, in the opinion of this Court while upholding the conviction of the appellant for attempting to commit rape under Section 376 read with Section 511 IPC his sentence is liable to be modified to the period already undergone.

In the result the appeal is allowed in part. The conviction of the appellant under Section 376 read with Section 511 IPC is upheld. However, his sentence of three years RI is reduced to the period already undergone. The appellant is in jail and shall be released forthwith.

A copy of this order shall be sent to the Chief Judicial Magistrate concerned for immediate compliance.

The office is directed to return back the Lower Court Record to the trial Court.

Appeal allowed in part.