Ledhai Ram Pyare vs State of U.P.

Vinod Prasad, J.—Appellant Ledhai has filed the instant appeal against the judgment and order dated 10.07.1980 passed by IInd Additional Session''s Judge, Basti in ST No. 6 of 1979, State v. Ledhai, u/s 376, I.P.C., P.S. Lalganj, District Basti. Learned trial Judge has convicted the appellant for the said offence and had sentenced him to five years RI with fine of Rs. 1,000/- and in default of payment thereof to undergo six months further RI. Prosecution charge against the appellant, as is decipherable from the written F.I.R. Exhibit Ka-1, Chik F.I.R. Exhibit Ka-4 and statement of victim Bilawati (P.W. 1) were that on 18.09.1976 at 7 p.m., appellant enticed away (P.W. 1) on the false pretext of giving her sweets and thereafter gagged her mouth and then dragged her in Ram Nain''s sugarcane field and committed rape upon her by removing her attires and threatening. During the crime, victim shrieked which attracted Ram Dev and Ram Lal, who sprinted towards incident scene flashing their torches. Appellant, therefore, sprinted away from the spot.

Victim returned to her house and narrated verbally the incident to her mother. Her father Ram Prasad (P.W. 2) was not present at that moment. After his return, he was also informed about the incident. Following day morning, victim Bilawati (P.W. 1) dictated F.I.R. to her elder brother Hazari Lal, who scribed it and after verifying the contents thereof, victim stamped it with her thumb impression and then went to the police station Lalganj, at a distance of 4 miles, and lodged her F.I.R. at 8.10 a.m. as Crime No. 140, u/s 376, I.P.C. against the appellant.

Constable Damodar Mishra (P.W. 4) prepared Chik F.I.R. Exhibit Ka-4 and G.D. entry Exhibit Ka-5. Victim got herself medically examined by Dr. Puspha Srivastava (P.W. 3) on 25.9.1976 in Ladies Hospital, Basti at 11 a.m. and her medical examination report was prepared by (P.W. 3) vide Exhibit Ka-2. According to doctor''s testimony, her breast were developed, auxiliary and pubic hair were thick growth, teeth 14/14, weight 31 kg, height 4 feet and 9-1/2 inch. No mark of any injury was present except one 3 cm. long linear scratch mark over back on left side. In the internal examination, doctor had found hymen and vagina admit one finger with difficulty. Hymen was torn and margin were swollen and congested, blood clot was present inside vagina, fresh bleeding was oozing out and tenderness was present in her private parts. Her smear was taken and was sent for pathological examination. For determining her age, she was referred to radiologist for X-ray. After receiving pathology report, Ext. Ka 3, doctor has noted that no spermatozoa was found. Mark of injury on hen private part indicated that rape might have been committed on her but no definite opinion about the same could be given. In doctor''s estimation, victim was a minor.

Investigation into the crime was done by S.I. Sanjay Nath Yadav (P.W. 5), S.O. P.S. Lalganj, who during its course recorded the statements of witnesses. Ram Dev and Ram Lal showed their torches to the I.O., who, after preparing its recovery memo, Exhibit Ka-6, had returned them to their respective owners. I.O. also conducted spot inspection and prepared site plan map Exhibit Ka-7. In the sugarcane field, sugarcane leaves were found crushed. I.O. had also interrogated appellant accused Ledhai and had also copied the injury reports of the victim. Subsequent, thereto, he was transferred and further investigation into the crime was conducted by Sri Ram Ashish Mishra, who had charge sheeted the accused vide Exhibit Ka-3.

On the basis of charge sheet, appellant accused was summoned and finding the offence triable by Sessions Court, his case was committed to the Court of Sessions for trial where it was registered as ST No. 6 of 1979, State v. Ledhai.

Trial Judge charged the appellant for offence of rape u/s 376, I.P.C., which charge, dated 6.2.1980, was abjured by the appellant, who claimed to be tried and, therefore, to establish his guilt, his prosecution commenced.

In its effort to bring home the charge, prosecution tendered oral testimonies of five witnesses, out of whom victim Smt. Bilawati (P.W. 1) and her father Ram Prasad (P.W. 2) were fact witnesses. Dr. Pushpa Srivastava (P.W. 3), Head Constable Damodar Mishra (P.W. 4) and I.O. Sanjay Nath Yadav (P.W. 5) were the formal witnesses. Besides these witnesses prosecution also relied upon written F.I.R Exhibit Ka-1, Chik F.I.R. Exhibit Ka-4, GD Entry Exhibit Ka-5, medical examination report of the victim Exhibit Ka-2, her pathological examination report Exhibit Ka-3 and site plan map exhibit Ka-7.

Learned trial Judge, after marshaling of evidences, both oral and documentary, held appellant guilty for the charged offence and sentenced him to 5 years RI, which conviction and sentence is under challenge in the instant appeal by the sole appellant.

Appeal was admitted in this Court in 1980 and after three decades ago, when it was called out for final hearing, nobody appeared. Doctor Abida Syed was appointed as amicus curiae to argue it.

I have heard learned amicus curiae in support of the appeal and Sri Sangam Lal Kesherwani learned A.G.A. for the State and have perused the evidences, both oral and documentary.

Learned amicus curiae submitted that it was a case of consent and, therefore, appellant should not be convicted. She further argued that the doctor had opined that the victim could have sustained injury in other manner also and therefore prosecution allegation of rape being committed on her is not established conclusively and convincingly. Primarily on these submissions, it was contended that the appeal be allowed and appellant be acquitted of the charge of rape.

Learned AGA submitted conversely and argued that the victim was a minor, her consent was immaterial, doctor had authenticated offence of rape and hence crime against the appellant was anointed clear of all doubts and, therefore, appeal lacks merits and deserves to be dismissed.

I have considered the rival submissions. Perusal of the record indicates that F.I.R. in the present incident was lodged by victim herself, in which, she had mentioned her age as 13 years. While testifying before the learned trial Judge the same age was spelt out by her. What is significant to note is that appellant accused had not mustered any courage to challenge the said age. Doctor''s opinion also'' lends credence to the said version and, therefore, on the record, there is conclusive, confidence inspiring evidences, both oral and documentary, that at the time of the incident, victim was a minor. In such a view, her consent was totally immaterial. Submission by learned amicus curiae that it was a case of consent, therefore, does not demerit the conviction of the appellant. Being minor, victim consent was of no consequence as she could not have consented to carnal intercourse at all. Perusal of evidence of (P.W. 3) unerringly indicates that the victim had specifically denied consent and had deposed that she was subjected to rape. In her examination-in-chief, the doctor has clearly testified that the victim was subjected to rape, which could have happened at or about the time of the incident. Dr. Puspha Srivastava (P.W. 3) further deposed that the victim was not habitual to sexual intercourse because only one finger could penetrate her private part, while confirming her age, at the time of the incident, to be between 14 or 15 years. Accused has not challenged these testimonies of the doctor nor was successful in dislodging those facts. In such a view, there is conclusive evidence on record that victim was subjected to temerity of rape.

F.I.R. was lodged by the victim (P.W. 1) on the following day morning at 8.10 a.m. at a distance of 4 miles. Accused had failed to bring on record any damaging statement of (P.W. 1), which may discredit her version contained in her F.I.R. Ext. Ka-1. On an over all assessment of her evidences, in a dispassionate way, there is no reason to disbelieve the charges leveled by her. Conviction of the appellant u/s 376, I.P.C. therefore is well merited. At the time of the incident appellant was 25 years of age and he had outraged the modesty of an adolescent and consequently there was no reason for the victim to create a hokum to falsely implicate the appellant in a fib.

Sentence awarded to the appellant is neither excessive nor unjust and hence does not call for any interference by this Court .

Appellant''s appeal is dismissed. He is on bail, he is directed to surrender to his personal and surety bonds forthwith; preferably within a period of two weeks from today, failing which, learned trial Judge is directed to issue non-bailable warrant of arrest against him, get him arrested and lodged him in jail to serve out remaining part of his sentence. Appeal is dismissed in toto.