Allahabad High Court
Raj Kumar @ Bhillar vs State Of U.P. on 15 January, 2015
Author: Vishnu Chandra Gupta
Bench: Vishnu Chandra Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
COURT NO.21 AFR
Judgement reserved on 01.12.2014
Judgement Delivered on 15.01.2015
CRIMINAL Appeal No.75 of 2007
(U/s 374(4) of Code of Criminal Procedure)
Raj Kumar Alias Bhillar, S/O Ram Awadh Yadav
R/O Village Sarauli, P.S.- Khandasa,
District Faizabad ...............Appellant/Accused
Versus
State of U.P. .....Respondent/Prosecution
Counsel for Petitioner:- Avnish Srivastava, Prashant Singh'Atal'
Counsel for Respondent :- Izhar Husain, A.G.A.
Hon'ble Vishnu Chandra Gupta,J.
Judgement Challenge in this criminal appeal under section 374(4) of Criminal Procedure Code, 1973 (for short CR.P.C.) is the judgement and order dated 23.12.2006 passed by learned Fast Track Court No.1/Additional Sessions Judge, Faizabad in Sessions Trial No. 414 of 2003, State Vs. Raj Kumar, relating to crime No. 58 of 2002 P.S. Khandasa, District Faizabad whereby the appellant Raj Kumar @ Bhillar was convicted and sentenced under section 376 and and 506 (2) of Indian Penal Code (for short I.P.C.) with 8 years R.I. and a fine of Rs. 2000/-, in default further imprisonment of 6 months under section 376 I.P.C and 2 years R.I. Under section 506(2) I.P.C.
FACTS The brief fact of the case are that on 12.05.2002 at 6 AM Km. Shiv Kumari, the prosecutrix (P.W.-3) aged about 13 years, niece of informant Matai Ram Yadav(P.W.-1), was going on foot with her aunt Sursati Devi (P.W-2) from her village Saroli to village Nato ka Dera Gaddopur for local treatment of pain in her teeth. In the way her neighbour accused/appellant Bhillar @ Raj Kumar on cycle met and told to Sursati Devi she may wait here and he will after providing the required treatment to prosecutrix will come back on cycle. After the aforesaid representation appellant took prosecutrix for local treatment to Nato Ka Dera. She also went on foot to Nato Ka Dera and on inquiry she came to now that after treatment the appellant took prosecutrix towards Village Mau. She also proceeded towards Village Mau. After treatment the appellant along with prosecutrix on cycle proceeded toward village Usmanpur. The prosecutrix asked the appellant, where he is going?. The appellant replied that he has to give invitations and thereafter he will come back. In this manner he proceeded toward metalled road and reached to out skirts of Village Mau through a village road having chool bushes. He dropped her from cycle and opened her cloths on gun point after extending threat to life raped her in the bushes. When prosecutrix protested he gagged her mouth. The aunt after wait for long start searching the prosecutrix and when she reached in the out skirts of village Mau, she heard the screams of prosecutrix. The appellant after seeing her left the prosecutrix and ran away with cycle. The prosecutrix narrated the whole story to her aunt and thereafter on return to home told it with her mother. At that time there was no male member in the house as her father was at Delhi in connection with his livelihood so, family members of prosecutrix called her uncle Matai Ram Yadav from his work place Musafirkahan, Sultanpur. When he arrived the details of incidents were given to him, he went to lodge the FIR but his FIR was not lodged in concerned police station. Then he went to court at Faizabad where he got prepared/typed an application and gave to S.P. City. who directed to Station Officer (S.O.) of concern police station to lodge the FIR on 21.05.2002. On the same day the medical examination of prosecutrix was conducted in Government Woman Hospital by Dr. Meera Verma (P.W.-4) which was handed over to the constable of Mahila police station. Thereafter the FIR was registered on 22.05.2002 at 10 AM in P.S. Khandasa under section 376, 506 IPC at crime No.58/2002.
S.I. Kaushlesh Bahadur Singh (P.W.-5) conducted the investigation of the case and submitted charge-sheet against the appellant under section 376/511 and 506 IPC. After committal of case the charges under section 376 and 506 IPC were framed. The appellant denied the charges and claimed his trial.
The prosecution in support of its case examined informant Matai Ram Yadav(P.W.-1), Smt. Sursati Devi(P.W.-2), prosecutrix Km. Shiv Kumari(P.W.3), Dr. Meera Verma(P.W.-4), Investigating officer Kaushlesh Bahadur Singh (P.W.-5) and H.C. Gulam Zafar(P.W.-6) who register the case and prepared the FIR. After close of prosecution evidence the appellant/accused was examined under section 313 Cr.P.C.. He denied the allegations and claimed his false implication. Despite opportunity given, the appellant did not adduced any defence evidence.
The trial Court after hearing the parties and going through the record, convicted and sentenced to appellant as above.
I have heard the learned Counsel for the appellant Sri Prashant Singh 'Atal', Learned A.G.A. Sri Izhar Husain and perused the written submissions, record of this appeal and of trial court.
SUBMISSIONS OF APPELLANT Learned Counsel for appellant submitted that there is an inordinate delay in lodging the FIR. No proper explanation has been given by prosecution. PW-1 had stated that he gone on duty on 6th or 7th day. It shows that no serious efforts were made to lodge the FIR as he went on duty after occurrence and thereafter came back and lodge the FIR.
He further urged that the age of prosecutrix as per medical report based on X-rays examination is 17 years. There is no other reliable documentary evidence of her age. According to Jaya Mala Vs. Home Secretary Govt. of J.K. And others, (1982) 2 SCC 538 considering the error of margin of two year either side in the age determined by ossification test her age may be more than 18 years.
It was further contended that medical report revealed that there is no injury marks on private or other part of the body of the prosecutrix. Her hymen found intact. In vagina even little finger could not be easily inserted. This shows that statement of prosecutrix that blood came out at the time of commission of rape and stained her salwar does not appeal to any prudent man in the aforesaid circumstances. It further proves that intention of prosecution witnesses including the prosecutrix was to falsely implicate the appellant. The Hon'ble Supreme Court in Radhu Vs. State of M.P., (2007) 12 SCC 57 held that when the statement of prosecutrix does not inspire confidence being full of discrepancies in her statement and attending circumstances make it highly improbable that such an incident ever took place, the conviction cannot be allowed to sustain.
It was further submitted that the informant is a leakhpal and there is a dispute of lease land of abadi in between appellant and informant of this case so, he without taking opinion of parents of prosecutrix with intend to put pressure on appellant involved him in this false case.
On the basis of the aforesaid submissions the counsel for appellant urged that this appeal deserves to be allowed and appellant is also entitled to be acquitted.
SUBMISSIONS OF AGA FOR STATE The learned A.G.A. would submit that in this case the age of prosecutrix shall be determined on the basis of school certificate which has been brought on record and prosecutrix proved it and is paper No. 11Ba/19. This is the school leaving certificate of class VIII pass of Raj Dutta Poorva Madhiyamik Vidhyalaya, Saroli, Faizabad, wherein the date of birth of the prosecutrix is mentioned as 08.04.1990. The incident of this case occurred on 12.05.2002 as such the age of prosecutrix at the time of incident was 12 years 1 month 4 days. This document has been prepared in view of provisions of Section 35 of Evidence Act and is admissible being primary evidence.
Matai Ram Yadav(P.W.-1) explained the delay in his statement on oath.
The prosecutrix fully supported the prosecution version. Her evidence finds supports from the evidence of Sursati Devi (P.W.-2), who reached on the spot and had seen the accused appellant running away from the spot.
The medical evidence also support the version of prosecution as Doctor found injury on her cheek and mentioned in report as quoted in written submissions, which reads as under:-
"1. There is a black mole------on left cheek, 3 cm. away from left angle of mouth and 3-1/2 cm. away from left aloe of nose"
It has also been urged that even in absence of mark of injury on any part of body or on private parts or redness in vagina or if hymen is found intact, the same is not sufficient to established that rape has not been committed. In this regard he relied upon judgement of Hon'ble Supreme Court of India in Madan Gopal Kakad Vs. Naval Dubey and another, (1992) 3 SCC 204 and Aman Kumar another vs, State of Haryana, (2004) 4 SCC 379. The learned A.G.A. relied upon para 7 of Aman Kumar's Case (Supra), which is quoted here in below:-
7. Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little (see Joseph Lines, IC&K 893). It is well known in the medical world that the examination of smegma loses all importance after twenty-four hours of the performance of the sexual intercourse. [See S.P. Kohli (Dr) v. High Court of Punjab and Haryana1.] In rape cases, if the gland of the male organ is covered by smegma, it negatives the possibility of recent complete penetration. If the accused is not circumcised, the existence of smegma around the corona gland is proof against penetration, since it is rubbed off during the act. The smegma accumulates if no bath is taken within twenty-four hours. The rupture of hymen is by no means necessary to constitute the offence of rape. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with or without violence is as much rape as vaginal penetration. The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus reus is complete with penetration. It is well settled that the prosecutrix cannot be considered as accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence of rape. In examination of genital organs, state of hymen offers the most reliable clue. While examining the hymen, certain anatomical characteristics should be remembered before assigning any significance to the findings. The shape and the texture of the hymen is variable. This variation, sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity. On the other hand, sometimes the hymen may be more firm, less elastic and gets stretched and lacerated earlier. Thus a relatively less forceful penetration may not give rise to injuries ordinarily possible with a forceful attempt. The anatomical feature with regard to hymen which merits consideration is its anatomical situation. Next to hymen in positive importance, but more than that in frequency, are the injuries on labia majora. These, viz. labia majora, are the first to be encountered by the male organ. They are subjected to blunt forceful blows, depending on the vigour and force used by the accused and counteracted by the victim. Further, examination of the female for marks of injuries elsewhere on the body forms a very important piece of evidence. To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Section 376 IPC."
As such slightest penetration of penis in vagina with or without emission of semen amounts of rape. So merely that hymen remain intact makes no difference. The absence of any injury on private parts or any other part of body of prosecutrix is also not a conclusive proof that rape has not been committed.
On the basis of aforesaid submissions the learned A.G.A. requested to dismiss the appeal.
FINDINGDS On the basis of the submissions it has to be seen;
1. Whether the evidence adduced by prosecution with regard to offence of rape is sustainable?
2. Whether the age of prosecutrix is above 18 years and could it be a case of consent?
3. What would be the effect of delay in lodging of FIR?
Point No.1 It is correct proposition of law that any sexual penetration, however slight, is sufficient to complete the crime of rape as define in section 375 IPC. The First Explanation to Section 375 of Indian Penal Code which defines ''Rape' reads thus:
"Explanation.-- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape."
In this case an FIR has been lodged under section 376 I.P.C. but after investigation charge sheet has been filed under section 376 read with section 511 IPC. In this regard their Lordships of Hon'ble Apex Court of India in Aman Kumar v. State of Haryana, (2004) 4 SCC 379, at page 388 held as under;
"8. The plea relating to applicability of Section 376 read with Section 511 IPC needs careful consideration. In every crime, there is first, intention to commit, secondly, preparation to commit it, thirdly, attempt to commit it. If the third stage, that is, attempt is successful, then the crime is complete. If the attempt fails the crime is not complete, but law punishes the person attempting the act. Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. An attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded."
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Significantly, the evidence of the prosecutrix and the doctor does not specifically refer to penetration which is sine qua non for the offence of rape."
In Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204 the Hon'ble Supreme Court after careful examination of the fact held that rape with prosecutrix has been committed by accused, who by profession Doctor. The Relevant extract of the case are quoted herein below:-
"31. In the cross-examination, the following answer is brought out from the medical officer, PW 4:
"I concluded about attempt to rape, on account of abrasion and redness on labia majora and minora respectively."
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48. When the evidence of PW 1 is taken with the evidence of medical officer who found an abrasion on the medial side of labia majora and redness present around the labia minora with white discharge even after 5 days, it can be safely concluded that there was partial penetration within the labia majora or the vulva or pudenda which in the legal sense is sufficient to constitute the offence of rape. Moreover, the respondent himself has confessed twice admitting the commission of rape without rupturing the hymen which confession is not disbelieved by the High Court. The respondent is a medical officer who has got the practical knowledge of the anatomy of a human being and the tender sexual organ of a young girl and who must have been quite aware of the implication of his confession having fully understood the meaning of the word ''rape'. Therefore, as admitted by the respondent himself, he without forcibly and completely penetrating his penis into the vagina of PW 13 had slightly penetrated within the labia majora or vulva or pudenda without rupturing the hymen and thereby satisfied his lust after emission of semens. In this context, it is not necessary to enter into any nice discussion as to how far the male organ has entered in the vulva or pudenda of PW 13 since it is made clear that there was penetration attracting the provisions of Section 375 IPC. The evidence of PW 13 is amply corroborated not only by the medical evidence and the corroborating evidence of PW 12 but also by the plenary confession of the respondent himself
49. From the above discussion, we unreservedly hold that the prosecution has satisfactorily established its case that the respondent has committed rape on PW 13 by proving all the necessary ingredients required to make out an offence of rape punishable under Section 376 IPC."
Therefore, it would be necessary to scan the facts of this case and findings recorded by the trial Court. The trial Court mainly on the statement of prosecutrix that at the time of commission of sexual act blood stained her slawar. On the basis of it the trial court did not rely on medical evidence produced in this case.
In Madan Gopal Kakkad's Case the Apex Court held that once medical evidence is accepted by the court it become the opinion of the court and not of the doctor. The relevant para 34 of the judgement is quoted as under:-
"34. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgement on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court."
The medical evidence in this case has to be taken into account in the light of evidence of prosecutrix and of other prosecution witnesses.
Now I would like to discuss the medical evidence, which has been placed on record in the form of medical examination report (Ext.Ka-2) prepared by Dr. Meera Verma (P.W.4) on 21.5.2002 when the prosecutrix was brought before her by female police constables of Mahila Thana Faizabad. This report contain following facts:-
"External Examination Hight 136 Cm., teeth 7+7/6+7, one teeth missing on left lateral Jaw, Brest developed. No injury mark found any where in the body, LMP 4.5.2002.
Internal Examination There is no injury mark found in lower Abd and private part. Hymen intact. There is no redness, no undue vaginal discharge found. Two slides of vaginal smear are made with swab stick. Vagina not allowed easily even little finger. The girl is referred to CMO Faizabad for determination of of age with same constables.
(Dr. Meera Verma) 21.05.2002 27.05.12 I examined Shiv Kumari D/O Sri Mata Deen Yadav village Saroli Thana Khandasa Dist. Faizabad on 21.05.2002at 4.15 PM at Mahila Hospital Faizabad abd brought by Kanchan Lata CP No.585. Today examined for pubic hairs, Axillary and pubic hairs are found and black in colour.
(Dr. Meera Verma) 27.05.2002 The girl is today brought by her uncle Mati Ram Yadav."
A supplementary report has also been submitted by Dr. Meera Verma on the basis of pathological report (Ext-Ka-4) and X-rays report on 14.06.2002. In this supplementary report following facts were mentioned:-
"Pathology Report No Spermatozoa or gonococci seen.
X-ray Report According to CMO Faizabad the girl is about 17 yrs.
Conclusion No definite opinion about rape can be given."
It is necessary to look into the evidence adduced by the prosecution to appreciate the submissions of the counsels for the parties.
In this case the first information report has been lodged by Matai Ram Yadav(P.W.-1) uncle of the prosecutrix after nine days of the incident by moving an application to Deputy S.P. City wherein it has been stated that on 12.05.1982 at about 6.00 AM adjoining to village Gaddupur near Nat Ka dera, the appellant committed rape on gun point after extending the threats to life in lonely bushes. It has not been mentioned in the first information report that the cloths of victim were stained with blood at the time of commission of crime. Matai Ram Yadav (P.W.-1) is not the witness of fact. He came to the house after the incident.
Smt Sursati Devi (P.W.-2) was accompanying with prosecutrix when incident was occurred, supported the prosecutrix version and stated that when she reached at Nat Ka Dera, she came to know that Bhillar (the appellant) has gone towards village Mau. She also proceeded to the same direction. When she reached near Mau, she heard the screams of her niece coming from jungle of Chhol trees. When she reached there Bhillar ran away from the spot by cycle. The prosecutrix informed her about the incident. Then she informed PW-1- Matai Ram Yadav. Her niece went to Police Station with Matai Ram Yadav(P.W.-1) but report was not lodged. At the time of incident the age of the prosecutrix was 13 years. She stated in her cross examination that prosecutrix was sent by her along with appellant at about 6 O'clock in the morning and her nice came back at 11.00 a.m. She also stated that her niece born after marriage of her dever. On the query of the Court, she stated that the marriage of her dever took place less than 20 years before from today and after 9 years of the marriage, Gauna took place. Km. Shiv Kumari was also married about two years ago. The marriage of Shiv Kumari took place hardly when she was 7 years of age. She has no child and her parents resided in Delhi. The correct age can be given by her parents. She also accompanied with prosecutrix to P.S. where she remained till 6:00 p.m. The Investigating Officer did not interrogate her about the incident. The prosecutrix told about the incident at 11.00 am. when she met her. The prosecutrix told her that accused committed bad act. She stated that she was raped at about 9:00 a.m. in the jungle of Mau. The prosecutrix took her to the spot where she was raped.
On 25.04.2006 the prosecutrix PW-3 was examined on oath. In her statement she stated that about four years ago she was suffering with pain in her teeth. She along with her Badi Amma (Smt. Sursati- P.W.-2) was going to Nat Ka Dera for treatment of her teeth. In the way, appellant met who came on cycle and told to PW-2 that he is also going towards the same direction for extending invitations. He may took her and after treatment of the teeth, he will return back. Relying upon the appellant, PW-2 sent the prosecutrix with him and said that she is following him. The appellant took her to Nat ka Dera where he manage her treatment of her teeth. Thereafter, she was asked by appellant to sit on his cycle. The appellant proceeded towards village Mau. She asked the appellant where are you going on? The appellant replied that he has to give invitation in village Rohila. He then took her to outskirts of village Mau. She again asked where you bring her? The appellant replied that he has missed the way. He, thereafter, dropped her from cycle. When she tried to stand-up then the appellant caught her. She raised protest and started weeping. He opened his paint and also opened forcibly her salwar, pulled down on earth and inserted his penis in her vagina. During it when she raised protest, he gagged her mouth and also shown contary made pistol and extended threat to kill her. In this process he pressed her breasts and also bitten on her cheek. In the meantime P.W.-2 arrived after hearing her screams. When P.W.-2 reached there the appellant left the place and ran away after leaving his cycle. She narrated whatever happened with her, to P.W.-2. Thereafter she came back along with P.W.-2 to the house and informed it to all the members of the family. P.W.-2 ringed to Matai Ram Yadav(P.W.-1). When he came then she went to Police Station along with P.W.-1 and P.W.-2. Here she again narrated everything about the incident but her report was not lodged on that date in the Police Station. The police personnel did not lodged F.I.R. for three days. Thereafter, they came to Faizabad where a written report was given to Deputy S.P. City. On his direction the police of Mahila Thana sent the prosecutrix for medical examination in Mahila Hospital and X-ray was also done. She was produced before the Magistrate in Court where her statement was recorded. She stated correctly to the Magistrate in respect of the incident. At the time of committing rape her Salwar was stained with her blood. She washed her Salwar because she was not aware of it. She also shown the spot to the I.O. She stated that at the time of commission of crime she was hardly about 12 years and studying in class 7th in Rajpoot Inter College, Saroli which is nearer to her house. In cross examination she stated that on account of forcible bite on her cheek blood not came out. A slight mark of teeth bite was on cheek which remain for 2-3 days. She left house at 6:00 a.m. and came back at 3:00 pm. Before reaching to the house, the incident was occurred one and half hour before. The incident took in between 1:30 to 2:00 pm. and she reached to Nat ka dera in between 11:00 to11:30 a.m. When she again cross examined on 20.09.2006 she stated that her statement was not recorded before the Magistrate. She by mistake given the statement before this Court that her statement was recorded before the Magistrate. She also stated that the distance from Saroli to Gaddupur is of 1½ to 2 kosh. Gaddupur and Usmanpur are adjoining. The distance of Usmanpur from the place of occurrence is two kilometres. When she was going on cycle with appellant she did not try to jump from cycle to rescue her nor she raised screams when she was going on cycle. The police did not lodge the report and S.I. was trying to understand her that by lodging the F.I.R. she will be defamed. After 9-10 days the report was lodged in police station. Her father was not at the time of incident and was residing in Delhi. At the time of incident her age was about 13 years. She would not tell the name of Nat where she went for her treatment. She denied the suggestion that appellant was falsely implicated due to party Bandi.
In the light of oral testimony of the prosecutrix P.W.-3, the medical evidence has been to be tested. It is true that medical examination has been conducted after 9 days of the incident but if it is true that penis was inserted in the vagina and blood came out in the process there must be some sign of injury or redness in or around the vagina of the victim. The doctor categorically opined that there is no injury or redness or discharge at the time of medical examination. The doctor also categorically opined that even a little finger could not be easily inserted in the vagina. The hymen was found intact showing the circumstances. The story narrated by the prosecutrix does not fined corroboration from the medical evidence.
It is true that medical evidence is not prerequisite to establish the charge of rape but if it is on record, the same cannot be ignored. The manner in which the incident said to have been occurred, some sign of commission of rape must have been present in or around the vagina. It is true that slightest penetration constitutes an offence of rape but it should be established from facts and circumstances available on record.
In Madan Gopal's case (supra) the accused was a doctor and Court opined that he was knowing that in case of full penetration or ejaculation he may leave the sign of commission of offence. The Court opined that in the light of medical examination conducted after five days, the discharge and redness in the vagina of the prosecutrix was found. Moreover, in that case the accused has himself made a confessional statement twice. In these circumstances the court has held that even in absence of full penetration the offence of rape is established. The relevant facts in this regard has already extracted herein above.
In Raman Kumar's case (supra) it has been held by the Apex Court that in absence of support of medical evidence the offence under Section 376 I.P.C. is not made out and at the most the offence under Section 354 I.P.C. shall be made out.
The prosecutrix (P.W.-3) unmistakeably deposed on oath that accused inserted his penis in her vagina and at the time of commission of rape her Salwar was stained with blood.
P.W.-2 has not stated that cloths of prosecutrix were stained with blood though she was just after commission of rape reached on the spot.
P.W.-2 also did not stated that she saw the accused committing rape upon the prosecutrix. Rather on in her statement P.W.-2 stated that prosecutrix took her to the place where she was raped and shown the place. According to P.W.-2, prosecutrix informed her that she was raped at 9:00 a.m. and she came back at 11.00 a.m. On the contrary P.W.-3 stated that rape was committed in between 1:30 to 2:00 pm. and P.W.-2 also came on the spot about 1 and ½ hour before reaching to the house at 3:00 p.m. Though there are some contradiction regarding time of incident in the statement of P.W.-2 and P.W.-3. It is also in the evidence of P.W.-2 that she saw the accused running from the spot. P.W.-2 did not stated that P.W.-3 prosecutrix was bleeding when she reached at the spot or her cloths were stained with blood. P.W.-2 was informed by P.W.-3 correctly. In these circumstances if the cloths were actually stained with blood, the same must have been noticed by P.W.-3.
Therefore, in view of facts and circumstances of this case, the presence of the accused with prosecutrix is established beyond all reasonable doubt. From the evidence of P.W.-3 it is established that he has committed the act falling within the meaning of outraging the modesty of prosecutrix.
Therefore, in this case the prosecution has full established the case punishable under Section 354 I.P.C. against the accused.
So far as the offence of attempt of commission of rape is concerned, there is total absence of any mark of injury on any part of the body of the prosecutrix. P.W.-3 did not depose on oath that she saw the accused was bearing or in the process of running try to tight his trousers. The medical examination of accused admittedly, has not been done in this case. Therefore, in absence of any evidence of attempt, the case of attempt of rape can not be established.
Point No.2 So far as the age of the prosecutrix is concerned, the age of prosecutrix mentioned in F.I.R. is 13 years. In the school leaving certificate produced at the time of examination of witness the date of birth is mentioned as 08.04.1990 and the date of incident is 12.05.2002. The correctness of school leaving certificate has not been challenged nor it was suggested during cross examination that the certificate is fake or forge. The same has been issued by the Principal of the school and original certificate had been placed on record during the course of examination of the witness. It is true that school authority has not come in the witness box to prove the contents contained therein but the correctness of this document has not been denied nor challenged during the cross examination though suggestion has been given that the age of prosecutrix was 18 years which she denied.
As I am of the view that when appellant-accused was found guilty under Section 354 I.P.C. by this Court, the age is not material for the purpose of establishing the guilt of appellant for the offence punishable under Section 354 I.P.C.
Point No.3 So far as the delay in lodging the F.I.R. is concerned, the prosecution witness belongs to the rural area. The parents of prosecutrix were not residing with her. Her uncle and her aunt went to lodge the report of the incident but admittedly the same has not been lodged in compelling circumstances. P.W.-1 went to Faizabad along with prosecutrix and he gave application to Dy. S.P. City and only after intervention of Dy. S.P. (City), the police came into action and prosecutrix was medically examined through Mahilla Police Station, Faizabad and on the next day on 22.05.2002 the report was lodged in the concerned police station. In the aforesaid circumstances, I am of the view that prosecution has explained the delay in lodging the first information report.
Having considered all the facts and circumstances of the case, in view of the above, the findings recorded by the trial Court with regard to the guilt of the appellant under Section 376 I.P.C. can not be allowed to sustain. However, the prosecution has fully established that appellant has committed an offence punishable under Section 354 I.P.C.
So far as the offence under Section 506 I.P.C. is concerned, the statement of prosecutrix cannot not be disbelieved that she was put under fear of death by the appellant while committing the offence under section 354 I.P.C., therefore, the offence under section 506 I.P.C. is clearly made out and findings recorded in this regard by the trial Court do not require any interference.
In view of the above, the appeal is partly allowed. The conviction and sentence recorded under Section 376 I.P.C. by the trial Court is set-aside. However, the appellant is found guilty under Section 354 I.P.C. He is sentenced under Section 354 I.P.C. with rigorous imprisonment of 2 years and fine of Rs. 2000/- in default of payment of fine the appellant shall further undergo three months rigorous imprisonment. The sentence awarded to the appellant under Section 506 I.P.C. is affirmed. The appellant shall be released after completing the sentence awarded to him.
The record of the trial Court be sent back forthwith along with copy of this judgement for communication and compliance. Office to ensure compliance of the order without any delay.
Order Dated: 15.01.2015 R.K.P.