CHANDU GANPAT Vs. STATE

JUDGEMENT

(1.) THE Appellant was tried under Section 376 read with Section 511 of the Indian Penal Code by the Sessions Judge, Ujjain. He was found guilty for that offence and was sentenced to suffer two years' rigorous imprisonment. Aggrieved by the conviction and sentence, this appeal has been preferred by him.

(2.) THE facts of the case are that on January 12, 1957, when the Appellant was going in a bullock -cart towards Tarana, he met on the way a girl by name Hiri (P. W. 4) aged about 10 years. She was going on foot and was accompanied by her younger brother Dhulia (P. W. 5) aged about 6 years, and another boy Dhanna of about the same age. They were going to have some corn grinded at a flour -mill at Tarana from their village Karanj. They also got into the oart and after they had gone a little distance, the Appellant stopped the cart and handed over the reins to Dhulia. It is said that the accused demanded fare from Hiri and on her expressing inability to pay, she was asked to go with the Appellant on one side of the track. After taking her a few steps from there, it is alleged, the Appellant tried to commit rape on her. Ramchandra and Babukhan happened to pass that way and they asked the Appellant not to do it but he threatened these persons not to interfere. It is said that the act could not be completed although it was attempted. According to Hiri, the Appellant actually gob her lie down, sat on her waist, and did the sexual act. Hiri related all this, first of all, to Nanuram who happened to come that way after the Appellant had proceeded further leaving the girl behind. Nanuram informed Kana about this who tried to take over the cartman (Appellant) but did not succeed because the Appellant made good his escape. The same evening, the Appellant was apprehended by some shepherds and was brought to the police station at Tarana. Hiri was also brought there simultaneously and she lodged the first information report.

(3.) THEN I will first discuss the testimony of the two eye -witnesses, Ramchandra P. W. 6 and Babukhan P. W. 11. They were boys of 17 and 16 respectively. They said that they were going on bicycles and they saw the Appellant and Hiri in a compromising position. They however did not stop and went ahead about 20 or 25 steps but then they thought of getting the girl relieved and so they came back. According to their statements when they first saw the girl and the Appellant, the girl was lying flat and the Appellant was sitting on her; and, when they came back, then also they saw them in the same position and the Appellant was continuing the sexual act, the girl being naked. They further said that Babukhan remonstrated and asked the Appellant to leave the girl as she was very tender but the Appellant replied that it was none of their concern and be further said that he had a Lathi, When Babukhan said that he too had a knife, the Appellant got up and the girl also stood up and both of them went towards Karanj. Now, Shri Khanwilkar, the learned Counsel for the Appellant contends that this whole story is unbelievable. In my opinion, there is force in this argument. It is not conceivable that a young lad of about 20 years, as the Appellant is, would persist in the sexual act with such a small girl at a place hardly a few paces from the track and would even persist in committing that aot in the presence of two persons; himself remaining in that position. The story is really absurd. In Ramdas v. State of West Bengal AIR 1954 SC 711, their Lordships observed: