Santosh alias Mahesh vs State of U.P.

M.K. Mittal, J.—This criminal appeal has been filed by Santosh alias Mahesh son of Murli Raidas, resident of 108/93, P. Road, Sisamau, district Kanpur Nagar, against the judgment and order dated 6th April, 2005, passed by Sri Vijay Pratap Singh, Additional Sessions Judge (Court No. 12), Kanpur Nagar in Sessions Trial No. 586/2001, whereby the Appellant has been found guilty and convicted u/s 376/511, I.P.C. and has been sentenced to undergo rigorous imprisonment for 7 years and fine of Rs. 1,000 has also been imposed on him default stipulation of 6 months imprisonment.

The brief facts of the case are that the first information report Ex. Ka-1 was lodged by Smt. Manju wife of Patan at police station Nazirabad on 31st May, 2001 at about 2 p.m. alleging that she had left her son Kamal and daughter Lalli in Kamla Nehru Park after feeding the daughter. The age of the daughter was about 8 months at that time. After some time her son Kamal came to her weeping and said that a man had slapped him and had snatched Lalli and was doing something in the bushes. At this the informant Smt. Manju and her uncle Chhabilal came to the park and saw that a person was lying on her daughter. They challenged him and when he tried to run away, he was apprehended. He disclosed his name as Santosh alias Mahesh son of Murli, resident of 108/93, P. Road, Sesamau, Kanpur Nagar. The informant also noticed that blood was coming out from the private part of her daughter which she wiped of. According to the informant the accused had committed rape on her daughter.

The informant and her uncle took the accused to the Police Station. Head Constable Vinayak Ram Jauhri P.W. 4 was posted at P. S. Nazirabad, Kanpur in May, 2001. According to this witness, Smt. Manju alongwith her injured daughter uncle Chhabilal and the accused Santosh came to Police Station. On the basis of the written report Ex. Ka-1 filed by Smt. Manju, he prepared the chik report Ex. Ka-4 and also registered the case in the general diary at rapat No. 37 at 2 p.m. on 31st May, 2001. The copy is Ex. Ka-5.

The girl Lalli was sent for medical examination to District Women Hospital and was medically examined by Dr. Pushpa Gurnani P.W. 3 on 31.5.2001 at 5 p.m. The doctor did not find any external injury on the body of Km. Lalli. The secondary sex character had not developed. She also did not find any mark of injury on her private part. The blood was not coming out from the private part. Hymen was intact. The vaginal swab was taken for pathological examination. The doctor has further stated that the age of girl was less than one year. She prepared injury report Ex. Ka-2 at the time of the medical examination. She also prepared supplementary report Ex. Ka-3 on 23rd June, 2001, and according to it no sperm dead or alive was found in the vaginal swab. The girl was referred for medical examination of the injuries except private part to doctor in Government Hospital.

Dr. P. C. Gupta P.W. 5 was posted in Ursala Hospital, Kanpur Nagar, on 31.5.2001, as Medical Officer and was on emergency duty at 6.30 p.m. He examined Km. Lalli. He did not find any mark of injury on her person. The skin around the anus in an area of 1 cm. was rough and brownish red. There was no mark of abrasion or laceration and sphincture was normal. According to doctor this lesion was due to dermatitis. He prepared injury report Ex. Ka-6 at the time of examination.

The case was investigated by Sub-Inspector, Rajesh Kumar Kaushal P.W. 6. Case was registered in his presence and he interrogated the accused and witness Smt. Manju Nishad. On 1.6.2001, he inspected the place of occurrence as pointed out by the informant Smt. Manju and prepared the site plan. After completing investigation he submitted the charge-sheet Ex. Ka-7 against the accused.

The case of the accused was committed to the Court of Sessions by the learned Magistrate. The accused was charged u/s 376(f), I.P.C. on 16th April, 2003 by Additional Sessions Judge. He pleaded not guilty and claimed trial.

In support of its case prosecution led evidence and besides the above noted formal witnesses examined Smt. Manju P.W. 1 the informant and mother of the child and Chhabilal P.W. 2, as witnesses of fact and occurrence. Smt. Manju has stated the prosecution case on oath and has supported the case. Chhabilal P.W. 2 stated the prosecution case in his examination in-chief but subsequently he changed his version and stated that he did not see any incident and that the accused was arrested from his house and not from the place of occurrence. This witness has been cross-examined by the prosecution.

The accused was examined u/s 313, Cr. P.C. He denied the prosecution case and contended that he was not arrested at the spot and that he has been falsely implicated. He was not taken to the police station from the place of occurrence. The medical report does not corroborate the allegations of rape. He pleaded innocence. However, he did not adduce any evidence in defence.

Learned trial court after considering the evidence as adduced by the prosecution came to the conclusion that the accused had attempted to commit rape on eight month old minor girl and that the prosecution had been able to establish the case beyond reasonable doubt. Consequently, he convicted the accused as aforesaid. Feeling aggrieved, this appeal has been preferred.

I have heard Sri B. N. Rai, learned Counsel for the Appellant, Sri A. V. Srivastava learned A.G.A. and perused the material on record.

The contention of the learned Counsel for the Appellant is that the Appellant has been wrongly convicted in this case and that P.W. 2 Chhabi Lal who is alleged to have been an eye-witness, did not support the prosecution case. Learned Counsel for the Appellant has also contended that there was some dispute between the complainant and the accused and her mother and on that account he has been falsely implicated. According to defence version even the case of attempt to commit rape has not been proved by the prosecution. Lastly learned Counsel for the Appellant has contended that the accused has been in jail for more than 4 years and his sentence be reduced to minimum prescribed of 5 years.

Learned Counsel for the State has contended that Smt. Manju the mother of the prosecutrix has supported the prosecution case and the medical evidence also corroborates it. According to him there is no reason for false implication of the accused and that even if Chhabi Lal P.W. 2 has not supported the prosecution case in his cross-examination but the examination-in-chief of this witness shows that the incident took place as alleged by the prosecution and this part of the statement can be accepted.

Smt. Manju P.W. 1 has stated on oath that she had left her son and daughter in Kamla Nehru Park and had gone to do her house hold work. At about mid-day, her son came and told her that a man had snatched the girl and was doing something with the girl in the bushes. She and her uncle Chhabi Lal immediately came to the park and saw that a person was lying on the girl. They challenged him. He tried to run but was apprehended and she saw that blood was coming from the private part of the girl. She wiped it of. According to this witness the accused committed rape on her girl. The accused disclosed his name as Santosh alias Mahesh son of Murli Raidas and was taken to the police station. She lodged the report and proved it Ex. Ka-1. Her daughter was medically examined. In cross-examination she stated that Chhabi Lal who is her uncle also went with her to the police station. He lived separately. She did not ask the accused as to why he had slapped her son. She denied the suggestion that the Police Inspector had asked her to settle the case with the accused. She had taken her daughter to the hospital, where she was medically examined. The Medical Officer had seen the blood coming out. She could not explain as to why the doctor did not mention this fact in the report. At the time of the incident she used to clean utensil at the house of some persons. She did not know if the mother of the accused was also doing the same work. Prior to the incident she did not know that the accused lived at P. Road. She did not know whether the accused was a rickshaw driver. When her son had come to her she went to the house of Chhabi Lal in Jawahar Nagar. She did not notice any injury on the body of her son Kamal. When she reached the park she saw that the accused was lying on her daughter. Other persons had collected after the accused was apprehended. Her uncle has only one hand. She denied the suggestion that when the accused failed to pay her money as demanded by her, she fabricated this case and lodged the false report. She also denied the suggestion that there was some dispute between her and the mother of the accused regarding the cleaning work.

The statement of the informant P.W. 1 shows that she is a reliable witness and there is nothing to suggest that she is not speaking the truth. When she reached the park after being informed by her son she saw that the accused was on her 8 months old daughter and the accused was apprehended. She also noticed blood coming out of private part of her daughter. The accused was taken to the police station and the report was lodged. The head constable P.W. 4 has also stated that the accused was brought by the informant and others and the girl was brought in injured condition. In the general diary a note was made that Lalli was in injured condition. However, the details of the injury and the seat of injury were not noted in the general diary. He has also stated that had blood not been coming out it would not have been mentioned that the girl was brought in injured condition.

Learned Counsel for the Appellant has contended that the medical evidence does not corroborate the prosecution case. It is true that Dr. Pushpa Gurnani, the lady doctor, who examined the girl did not find any injury on her private part and also did not notice oozing of the blood. Dr. P. C. Gupta also did not find any injury on the body of the girl however he noted a brownish red patch in an area of 1 cm. But according to doctor this was on account of some skin decease. The medical evidence therefore, shows that rape was not committed on the girl. However, the statement of Smt. Manju shows that there was attempt made by the accused as he was lying on her daughter and was apprehended at that stage.

A suggestion has been given to the informant that there was some dispute between her and the mother of the accused regarding the cleaning of utensil and also she had demanded some money from the accused and he had refused to pay. But the witness denied these suggestions. It is important to mention that the accused did not allege about this cause in his statement u/s 313, Cr. P.C. and it shows that the suggestions as were given to the informant to show animus against the accused are without any basis.

Learned trial court has concluded that the accused was arrested at the spot and he attempted to commit rape on 8 months old girl and in the process blood came out from the private part which was noted by the mother of the child. The fact that blood was coming out from the private part of the girl has been positively stated by P.W. 1 the mother of the girl and her statement has not been challenged on that point and it is very material.

Thus, I come to the conclusion that the learned trial court has rightly believed the statement of the mother of the girl and has rightly concluded that the accused who was arrested at the spot attempted to commit rape on 8 months old child. The prosecution had been able to establish its case against the accused. He has been rightly convicted u/s 376/511, I.P.C.

As far as the question of sentence is concerned, the accused is in jail for last more than 4 and half years. u/s 376(ii)(f) the minimum sentence that can be awarded is 10 years. Since the Appellant has been convicted u/s 376(ii)(f)/511, I.P.C. minimum sentence to be awarded comes to 5 years. Considering the facts and circumstances of the case and the fact that the accused has already spent more than 4 and half years in jail, the interest of justice will be served if his sentence is reduced to 5 years. With this modification this appeal is liable to be dismissed.

The conviction of the Appellant u/s 376(ii)(f)/511, I.P.C. is hereby confirmed. However, his sentences is reduced to 5 years rigorous imprisonment from 7 years. The fine as imposed by the trial court is maintained. With this modification the appeal is hereby dismissed.

The copy of the judgment be certified to the learned trial court forthwith for communication to the jail authority for necessary action. The trial court record be also sent back.