PREM CHAND Vs. STATE OF U P

JUDGEMENT

(1.) This appeal has been preferred by one Prem Chand, who was convicted under Sec. 376 I. P. C, and sentenced to undergo R. I. for seven years. According to the prosecution case on 28th December, 1974 Kumari Vidya aged about 10, sister of Ram Asrey, in village Karinna Manikpur within the police circle of Mohamada-bad had gone to graze her cattle in the Har of that village. Another girl Kumari Munni was also grazing her cattle with her. The appellant was also grazing his buffalo in the same Har. At about 4 P. M. when Kumari Vidya was sitting on the Khadar, Preni Chand appellant caught hold of her hand, dragged her, threw her on the ground and after undres sing her committed rape on her. Her screams attracted to the scene of occurrence Sri Ram Jatav, Kaleshi Kahar and Munno Devi. They all saw the appellant committing rape on Kumari Vidya. After the rape was committed on her she started bleeding from her vagina. On seeing the witnesses the appellant ran away from the scene of occurrence towards village Madanpur. The report of the occurrence was lodged by Ram Asrey, brother of the victim on 29th December, 1974 at 9. 45 A. M, At the police station the stained clothes of Kumari Vidya were taken in possession. They were sealed after their memorandum was prepared. Kumari Vidya was sent for medical examination. She was examined by Dr. Ismat Iqbal, Medical Officer, Female Hospital, Fatehgarh. On her examination she found her height 4 feet 3 inches, weight 22 Kgs. and the teeth 14/14. There was no development of axillary and public hair. On internal examination she found that her vagina admitted only one finger with difficulty. Hymen was irregular and there were abra sions all around the hymen. Blood clots were present around the hymen vulva and the thigh. She was of the opinion that the girl was subjected to rape. On X-ray it was disclosed that epicondyle medical and lateral had not united. Radius at upper end had also not united. Lower ends of radius and ulna had also not united. She was of the opinion that Kumari Vidya was aged about 10 or 11. The investigation of the case was entrusted to Sri Chandra Shekhar, Sub-Inspector of Police. He commenced the investigation with effect from 30th December, 1974. He went to the scene of occurrence and after inspecting it prepared the site-plan. He recorded the statements of Kumari Munni, Ram Asrey, Sri Ram, Kaleshi and Kumari Vidya. After completing the investigation, he sub mitted the charge-sheet. The appellant denied having committed rape on Kumari Vidya. He claimed that he has been falsely implicated. He further asserted that four Bighas of Patiawala field stands in the name of Ram Asrey but he and his brother are in possession over it. The prosecution examined in support of its case the first informant Ram Asrey P. W. 2 and Kumari Vidya P. W. 3. Besides these two witnesses P. W. 4 Kumari Munni, P. W. 5 Ram Kishan were also examined as eye witnesses. The Court also examined C. W. 1 Sri Ram and G. W. 2 Kanauji. The prosecu tion besides these witnesses examined Dr. Ismat Iqbal P. W. 1, who had examined Kumari Vidya on 29-12-1974 and P. W. 6 Chandra Shekhar, Investigating Officer. I have been taken through the evidence on record by the learned counsel for the appellant as well as the learned counsel for the State. It is not disputed in this case that Kumari Vidya, who was the victim in this case, was aged about 10 or 11 at the time of the occurrence. It finds ample support from the state ment of Dr. Ismat Iqbal P. W. 1, who had based her report on the report of Radiologist and she had asserted that she was aged about 10 or 11 at the time of examination. Regarding the occurrence Kumari Vidya states that on the date of occurrence she was grazing her cattle in the field at about 4 P. M. The appellant, who was also grazing her cattle caught hold of her hand and dragged her to the nearby field. Thereafter, she was thrown on the ground and he committed rape on her. She felt pain and there was bleeding from her vagina. On alarm raised by her, her brother Ram Asrey, Munni, Kaleshi and Sri Ram reached the scene of occurrence. On seeing them the appellant ran away towards village Madanpur. She admitted in cross-examination that the appellant on that date had also caught hold of Kumari Munni for committing rape on her but she got herself released from his hold and ran away. She was herself the victim. Her statement finds corroboration from the medical evidence of Dr. Ismat Iqbal, who found her hymen irregular and abrasions around the hymen. She also found the blood clots present in the vagina around hymen and around the thigh. She was of the opinion that rape was committed on Kumari Vidya. Further corroboration of this fact is found in the statement of Ram Asrey P. W. 2, who is the brother of Kumari Vidya and is the first informant. He claims that at the time of committing of the offence he was cutting Pater in his field. When he heard the screams of the victim Kumari Vidya. , he rushed and saw the appellant committing rape on her. He also found bleeding from her vagina and her underwear was also stained with blood. His state ment finds corroboration from the report that he had lodged. It was scribed at his dictation by one Santosh Kumar. He denied the suggestion that he was not present on the scene of occurrence, there is no doubt that there is delay in lodging of the report by him but he has also explained the delay satisfactorily as it must have become dark after 1 hours of the occurrence. The police station is at a big distance of about nine miles from the scene of occurrence. It is, therefore, quite reasonable to expect that the com plainant could not leave for the police station in the night. The report, therefore, fully corroborate the state ment of Ram Asrey P. W. 2. C. W. Sri Ram does not claim that he had actually witnessed the occurrence but when he reached the scene of occurrence he saw Kumari Vidya present there and was weeping but she was not saying anything. C. W. 2 Kanauji states that he reached the scene of occurrence on hearing the screams of Kumari Vidya. When he reached there he found Kumari Vidya and Kumari Munni, Sri Ram and appellant Prem Chand standing there. Later on Ram Asrey P. W. 2 also reached there. He saw Kumari Vidya wearing a blood-stained under wear. She was threatening that she would complain about it at her house. Prem Chand appellant told her, "ja sasuri kya kar legi". This statement is admissible in evidence as the evidence of conduct of Kumari Vidya and the appellant immediately after the occurrence. P. W. 4, Kumari Munni does not support the prosecu tion evidence. Further the fact that the blood stained underwear of Kumari Vidya was taken in posses sion by the police at the police station is established by the testi mony of P. W. 5, Ram Asrey. The evidence of Kumari Vidya P. W. 3, Rani Asrey P. W. 2, C. W. 1 Sri Ram and C. W. 2 Kanauji coupled with the testimony of Dr. Ismat Iqbal P. W. 1, therefore, does not leave any room for doubt that the appel lant had committed rape on Kumari Vidya. He was, therefore, rightly found guilty of offence under Section 376 I. P. C. From the record it appears that the age of the appellant as given by him before the Court below was 15 on the date of his statement on 15-9-1977, which was recorded under Section 313 Cr. P. C. The learned Sessions Judge has not made any note of the fact that he appeared to him older than the age given by him. The offence was committed in this case on 28th December, 1974. The appellant, therefore, must have been a child aged about 12 on the date of occurrence. The offence was committed in District Farrukhabad. The provisions of U. P. Children Act, 1951 were not applicable to that district on the date of occurrence. However, the provisions of that Act were made applicable to the district of Farrukhabad by Notification No. 3137/xxxvi SW-500 (12) 73 dated June 21st, 1976, with effect from 1st July, 1976 issued by the Uttar Pradesh Government. It is contended by the learned counsel for the appellant that the provisions of this Act would apply under Section 75 of the U. P. Children Act, 1951 as during the trial the appellant was a child within the meaning of Section 2 of this Act. Section 75 provides: "for the purposes of this Act, a person shall be deemed to be a child, if at the time of the initia tion of any proceedings against him under this Act or at the time of his arrest in connection with which any proceedings are initiated against him under this Act, such person has not attained the age specified in clause (4) of Sec tion 2: "provided that if during the course of the proceedings under this Act such person attains the age specified in the said clause, the proceedings already com menced shall be continued and orders may be passed in respect of such person under this Act as if such person was a child notwithstanding anything to the contrary in this Act. " Thus, these provisions were applicable to the appellant as the appellant was below 16 on that date. The effect of the applicability of this Act would be that under Section 27 of this Act no Court can sentence a child to death or transportation or imprisonment for any term or commit him to prison in default of payment of fine. The appellant, therefore, inspite of his conviction under Section 376 I. P. C. could not be sentenced to any term of imprison ment. The learned Sessions Judge was probably not aware of the provi sions of this Act, which are applica ble to the appellant who was a child on that date. The learned counsel for the appel lant has further contended that since the date of conviction he could not be sentenced to any term of imprison ment the sentence of imprisonment should be set aside even if the con viction is maintained. In such con tingency where on the date of the order the accused had ceased to be a child the proceedings shall be continued and the order shall be passed in respect of such person under this Act as if such person was a child notwithstanding anything to the contrary in this Act. Since on the date of the decision of the appel lant, the appellant had ceased to be a child, the provision of U. P. Children Act, 1951 would apply and in the instant case the provision of Section 33 (e) for release of the appellant on probation of good conduct would apply. There is no evidence on the record to show that the appellant had committed any offence previously. It is, therefore, a fit case where the appellant should be released on probation of good conduct under Section 33 (e) of the U. P. Children Act, 1951. The conviction of the appellant is therefore, maintained but instead of sentencing him to any term of imprisonment he shall be released on probation of good conduct for a period of two years on his furnishing two sureties of Rs. 2000/- each and a personal bond of the like amount to the satisfaction of the Chief Judicial Magistrate, Farrukhabad. During this period he shall remain under the supervision of the Reformation Officer of that district. The Reform ation Officer will make six-monthly report of his conduct to the learned Session Judge, Farrukhabad. In case he is not found to act in con formity with the condition of the bond or his behaviour is unruly, the Sessions Judge will pass the pro per orders under the provisions of the U. P. Children, Act, 1951. The appellant shall be required to furnish the aforesaid bonds within two months from the date of the receipt of the record by the Court below. The appellant is on bail. He need not surrender. The appeal is decided accordingly. .