BANWARI Vs. STATE OF U P

JUDGEMENT

(1.) The sole appellant Banwari is aggrieved by his conviction under Section 376 IPC and implanted sentence of 7 years Rl, recorded by Vth Additional Sessions Judge, Bareilly in S.T. No. 242 of 1980, State v. Banwari, vide impugned judgement and order dated 28.8.1981, and consequently has challenged the same in the instant appeal.

(2.) Before dilating and deliberating on the harangued contentions by the appellant and respondent State, unfolded prosecution allegations against the appellant, in nut shell, are sketched below.

(3.) Informant Don Lal (PW4) and his wife Hulasi (PW2) had three daughters and a son namely Kitka, Kanti, Ram Dulari(PW1) and Govind Ram Badri. On the date of the incident, 5.3.1979 at 5 p.m., PW1 Ram Dulari, a young damsel aged about 14 years, with her adolescent sister Kanti, aged about eight years, and their mother PW2 had gone to their opium field to assess their opium crop when their mother PW2 asked them to pluck some gram saplings for feeding their oxen in the other half of their same plot at a distance of 30-35 paces. Ram Dulari P. W1 and Kanti, obeying their mother, went to gram field to pluck the saplings, when appellant Banwari approached them and asked from PW1 for a match-box. He was accosted by PW1 who replied that she does not have it as she does not smoke. No sooner thereafter appellant caught hold of PW1 by her breasts and pushed her on the ground near earthen boundary (mend) of the field of Vedram and after lifting her kirtle (petticoat) attempted to outrage her modesty at gun point threatening her with her life. Feeling pains in her private part PW1 shrieked, on which her sister Kanti rushed to her mother PW2 and informed her that appellant was assaulting PW1. Mother PW2 came rushing at the scene and started assaulting appellant with uprooted jujube or plum (Beri) shrubs. Meanwhile co-villagers Birbal and Siya Ram also arrived at the scene and therefore appellant fled away from the scene with his country made pistol hurling threats to them that he will annihilate them like he had annihilated Summeri. At that time father informant PW4 had gone to the market. After his return, he was narrated with the faux pas. Because of falling darkness they did not go to the police station to lodge the FIR. Following day appellants men where in their look out and therefore they did not lodge the FIR on the following day as well, which FIR Ext. Ka 3, ultimately was orally lodged on 7.3.1979 at 4.30 p.m. at PS Sirauli, district Bareilly after covering a distance of 4 miles east.