BALWAN SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS appeal is directed against the order of Additional Sessions Judge, Karnal, dated 14th of May, 1990, whereby the present appellant was convicted under Section 376 read with Section 511 of the Indian Penal Code for attempting to commit rape on Kumari Manju aged about six years and was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 500/ -. In default of payment of fine he was ordered to undergo further rigorous imprisonment for two months.

(2.) IN brief facts of the prosecution case as emerge from the first information report lodged by Ram Kishan father of Manju prosecutrix aged about six years are that on 21.5.1988 at about 4 or 4.30 P.M. he along with his daughter Manju went to the shop of the appellant (a cobbler) for getting a Chappal of his wife repaired. Balwan Singh appellant told Ram Kishan that it was likely to take some time for him to do this job. Meanwhile Ram Kishan was called by Dharam Vir whose shop is situated at a distance of 15 feet from there across the road. Ram Kishan left his daughter Manju under a tree near the place where the appellant was working as a cobbler. After about 15 to 20 minutes Ram Kishan and Dharam Vir heard shrieks of a child coming from behind the shop of the appellant. Both of them along with another Dharam Vir son of Surat Singh went there. Jawar crop was standing towards the shop of the appellant whereas sugarcane crop was standing towards the eastern side. In between there was a vacant area. When Ram Kishan accompanied by Dharam Vir's reached near the place of occurrence, he saw that the appellant made Manju to lie on the ground in that aforesaid vacant area after removing her underwear. According to these witnesses the accused tried to commit rape on Manju. On seeing the two witnesses the appellant ran away in the nearby sugarcane field and escaped whereas Ram Kishan brought his daughter who was trembling at that time to his house. Ram Kishan then went to police station Samalkha and lodged the first information report on the same day at 10.55 P.M. The prosecutrix was examined by Dr. Manju Arora on the following day at 10.30 A.M. However, the said doctor did not find any mark of injury or struggle on the person of Manju including her private parts. Ossification test was also conducted in order to ascertain her age. After completion of the investigation the appellant was challenged, tried, convicted and sentenced, as stated earlier.

(3.) ON behalf of the appellant it was submitted that there is no legal, cogent or reliable evidence on the record to bring home charge under Section 376 read with Section 511 of the Indian Penal Code against the appellant and that testimony of the prosecutrix who is a child witness and that of Ram Kishan P.W. 5 and Dharam Vir P.W. 6 is quite contradictory and it would not be safe to place any reliance on such an evidence.