SATH BABU Vs. STATE OF U P

JUDGEMENT

(1.) This Criminal appeal is directed Against the judg ment and order dated 9th November, 1979 of Shri M. L. Singhal, the then learned Sessions Judge, Allahabad, whereby he convicted appellant Seth Babu under Section 376, I. P. C. and sentenced him to undergo rigorous imprisonment for seven years. The victim of the incident was Kumari Shashi Kala aged about 6 or 7 years only at the time of the occurrence. The appellant in his statement recorded under Section 313 of the Code of Criminal Procedure, 1973 (Act II of 1974) on 5-11-1979 gave his age as 22-years. The occurrence in which Km. Shashi Kala was criminally assault ed had taken place on 8-8-1978 at about 7. 30 p. m. within Police Station Colonelganj in Allahabad city itself. The first information report of the incident was lodged with the police the same evening at 8. 30 p. m. (20. 30 hours.) The distance between the place of occurrence and the Police Station was six furlongs. The prosecution story was as follows: 3. Shyam Lal, who is the informant of the case, was Mama of the prosecutrix, who was daughter of his Sarhu named Ram Gharib. She had come to the place of the informant six or seven days prior to the incident and had been staying in his house. At about 7. 30 p. m. on 8-8-1978, the prosecutrix was going to the shop of Gur Prasad Jaiswal for purchasing salt. Accused Seth Babu, who too was a Harijan, met her on the way. The accused was the neighbour of the informant. He enticed away the prosecutrix to his house and committed rape upon her in his house. The mouth of the prosecutor had been shut by him with the help of one of his hands. The prosecutrix got opportunity and cried very loudly the sound of which was heard by the mother of the prose cutrix, namely, Smt. Shanti Devi, Lal Chand, Moti Lal a few others who rushed towards the house of the accused where they saw that he was committing rape upon Km. Shasi Kala. They tried to apprehend him but he managed to make good his escape They found that the prosecutrix was lying unconscious in the house of the accused and blood in large quantity had fallen on the ground and on her underwear. The informant got drafted the first information report of the incident and along with the prosecutrix went to the Police Station, Colonelganj where he handed over the first information report to the police. A report of the incident on the basis of the written first information report was prepared by the police and the case under Section 376, I. P. C. was registered against the appellant vide Ext. Ka-5, which is a copy of the chik report. The investigation followed as usual. The prosecutrix was sent for medical examination. The Investigating Officer after interrogating the prosecution witnesses, inspecting the place of occurrence and receiving the medical examination report submitted a charge-sheet against the accused. The blood-stained articles including underwear of the prosecutrix, Kathri, Chaddar and samples of plain and blood stained earth were sent to Chemical Examiner of U. P. for detection of blood, if any, upon them. He was also requested for detection of sperm, if any, but none was found upon the said articles. The said articles were sent to the Serologist for detection of the origin of the blood and the group of the same. Exhibit Ka-12 is the report of the Serologist, who had found human blood upon Kathri, Chaddar and underwear. 3. The accused had pleaded not guilty and tried to show that he had been falsely implicated in this case. In reply to question No. 14 of his state ment under Section 313, Cr. P. C. the accused stated that the informant Shy am Lal was son-in-law of Hari Lal who had died; that Hari Lal and his uncle Jawahar Lal and brother Roshan Lasl were inimical towards each other and that due to the said strained relation, the informant had got him falsely implicated in this case. He further stated that the prosecution witness Lal Chand was related to Shyam Lal and, therefore, deposed falsely against him. He also contended that the informant Shyam Lal had got him beaten by Gundas after getting him tied to a tree. 4. The prosecution in order to establish the guilt of the accused had relied upon the testimonies of prosecutrix Km. Shashi Kala, PW-1, infor mant Shyam Lal, PW 2, Lal Chand, PW 3, Dr. Pushpa Jaiswal, PW 4 and a few other witnesses including the Investigating Officer. Km. Shashi Kala, Shyam Lal and Lal Chand supported the prosecution story on all material points. PW 4, Dr. Pushpa Jaiswal, had medically examined Km. Shashi Kala on 8-8-1978 in Duffarin Hospital, Allahabad where she was post ed as Medical Officer. Km. Shashi Kala was brought to the hospital by police Constable Ram Adhin 505 of P. S. Colonelganj, Allahabad. According to medical examination, the height of Km. Shashi Kala was 44 inches; she weighed 42 pounds; her breast had not developed and pubic and axillary hairs also were not present. On internal, she found that there was fresh tearing on the hymen and the vagina admitted only the tip of the finger. She had not found any living or dead sperm in the vagina smear. About her age, she stated that she was about six years and rape had been committed upon her. She proved the medical examination report Ext. Ka-4. She sent the prosecutrix for X-ray also in order to determine her age, but the X-ray plates were not shown to her. In cross-examination, she stated that during the internal examination she had found blood in the private part. She was recalled and she then stated that she had found blood in the underwear also of the prosecutrix. She stated that she had not found any foreign body inside the underwear of the prosecutrix, otherwise she mast have mentioned the same in her report. It was hardly necessary to give the details of the statements of the witnesses examined by prosecution and the same shall be given while discussing the evidence on the record. 5. The accused did not examine any witness in defence. The learned lower court by a well considered and discussed judgment found the accused guilty of the offence under Section 376, I. P. C. and, therefore, convicted and sentenced him accordingly. Feeling aggrieved, the appellant preferred this appeal. 6. Before proceeding further it may be mentioned that the learned counsel for the appellant preferred not to challenge the finding of the conviction of the appellant under Section 376, I. P. C. and confined himself to the question of sentence only. I however, find it proper to discuss the evidence of the prosecution before coming to the question of sentence. 7. PW 1, Km. Shasi Kala, the prosecutrix was unable to state about her age, but the court has mentioned the same as about 8 years. The learned lower court made a preliminary enquiry by putting a few questions to her in order to satisfy himself that she was in a fit mental state to give evidence before him and understood the purpose for which she had been brought to the court. 1'he learned lower court, thereafter, remarked that ha was satisfied about the intelligence and understanding of the witness. Ha, thereafter, recorded her statement on oath. The prosecutrix stated the material facts of the case. She had met Babu, who allured har by offering sweets provided she accompanied him. She thereafter, was taken Seth Babu to the house in which he lived which actually was owned by his uncle. Seth Babu, inside a room, made her lying down on a cot on which Kathri had been spread and, thereafter, ho ravished her. She further stated that Chadar also had been spread on the cot on which she had been laid. Her shrieks had attracted the informant and the other witnesses named above, but the appellant had made good his escape. She also stated that blood had flowed from her private part due to which her underwear had become blood stained. She was cross-examined at length, but nothing material was pointed out to disbelieve her testimony, so far as the commis sion of rape upon her by Seth Babu was concerned. After going carefully through her statement, I find that the same was trustworthy and the learned lower court had rightly placed reliance upon the same. She stated that the house of Ram Autar adjoined the house of her Mausa Shyam Lal and the house of Seth Babu adjoined the house of Ram Autar. Further, she stated that the house of Ram Autar adjoined the house of Seth Babu. There was, thus, ample opportunity for the above named witnesses to reach the house of Seth Babu, which actually belonged to his uncle, after hearing the shrieks of the prosecutrix. 8. PW 2, Shyam Lal, consistently stated about the material facts and after going through his statement, I do not find any good reason to dis believe the same. He stated that on the day of this incident, none else was their inside the house of the appellant. The family of Jawahar Lal that day was not there in the house. He stated in para 3 of his statement that Shashi Kala when he had reached the house of Jawahar Lal had told him that Seth Babu had committed rape upon her and that he had brought her inside the house on the pretext of giving sweets to her. He, thereafter, got drafted the first information report by PW 3, Lal Chand and what happened, thereafter, has already been narrated above. 9. Pw 3, Lal Chand, also supported the prosecution version and proved the first information report (Ext. Ka-1) which he had drafted on the dictation of informant Shyam Lal. His house was situate at a distance of 25 feet towards south of the house of Jawahar Lal in which the appellant Seth Babu also used to live. He as well as the other witnesses, after entering into the house of Jawahar Lal had found the door of the room shut from inside and it was on their asking that the appellant opened the door and immediately ran away from there. When he entered the room, he found that Km. Shashi Kala was getting down from the cot and in that process she had fallen on the ground. She narrated the whole incident to the witnesses. Lal Chand also saw that blood was there at the private part of the prosecutrix and her underwear had become highly stained with blood which was there on the Kathri and Chadar also. It may be mentioned here that the manner in which rape was committed by the appellant upon the proscutrix has been very clearly disclosed by her in her statement as PW 1 which has been believed by the lower court to prove the essential ingre dient of penetration. The witnesses were the neighbours of the appellant and had got no reason to depose falsely against him. 10. The medical evidence also proved the fresh tear on the hymen and the Doctor further stated that rape had been committed upon the prosecutrix although she was not competent to state like that because the question whether rape had been committed or not was to be decided by the court and not by the witness. She was expected only to state about the findings of the medical examination and the probable caused of the injury in the private part of the prosecution which in this case was caused by the male organ of the appellant when he had ravished her. All the essential ingre dients of Section 376, I. P. C. , thus had been proved beyond reasonable doubt by the prosecution and the learned lower court had rightly placed reliance upon the evidence on the record. Learned counsel for the appellant, there fore, rightly did not find it expedient to challenge the finding of conviction. 11. Coming now to the question of sentence, I find that seven years' R. I. is not excessive. The appellant had ravished an innocent girl aged about seven years only while he himself was a full grown man and, there fore, should have been aware of the consequences of criminal assault upon the victim. The incident had taken place in Allahabad city itself and the prosecutrix had been promptly taken to the Doctor. Had the place been somewhere in far off village, the bleeding injury in the private part of the prosecutrix could have even proved fatal due to excessive bleeding. It was a beastly act and the appellant deserved deterrent punishment for the same. 12. Learned counsel for the appellant contended that a long period of about seventeen years has passed since the occurrence had taken place and the appellant, therefore, deserved at least marginal reduction in the sentence, but the submission appeared to be devoid of merits. It was also contended that the appellant was a married man and has children also and, therefore, his life would be spoiled if he was to serve out the sentence awarded to him. This submission also appeared to be without force. The learned lower court, to my mind, had awarded adequate sentence to the appellant and there were no extenuating circumstances for reducing the same. The appeal, therefore, was liable to be dismissed as a whole. 13. The appeal is dismissed. The conviction of the appellant and the sentence awarded to him are confirmed. The appellant is on bail. He is directed to surrender himself before the court concerned or else he shall be taken into custody to serve out the sentence awarded to him. The material exhibits shall be dealt with as directed by the learned lower court. None of the material exhibits shall be sent to the Hon'ble Supreme Court unless specifically called for. Appeal dismissed. .