JUDGMENT Umeshwar Pandey, J.
1. In this appeal, the judgment and order dated 14.3.2000 passed by the Special Judge (S.C./S.T.Act) Basti, is under challenge.
2. The appellant was charged and tried for the offences punishable under Sections 376 I.P.C., 3(i)(xii) and 3(2)(v) S.C. and ST. (Prevention of Atrocities) Act, on the allegation that the prosecutrix, a minor girl about 11 years of age when had gone to see her mother working in the field at about 11.00 a.m. on 12.11.1996, she met the appellant. It was near the field of one Manohar that the accused caught hold of the minor girl and forcibly took her inside the standing sugarcane field and raped her. On the cries and shrieks of Km. Puneeta, Smt. Samundara Devi (P.W. 1) reached there and she also started aising alarm. This hue and cry so raised on the spot attracted other witnesses also there. On having seen the witnesses reaching the spot, the appellant tried to run away from there but he was immediately arrested after a little chase. The prosecutrix, Km. Puneeta was in precarious condition on account of the injuries sustained in the process. She was immediately taken to the hospital for treatment by her father Ram Sumiran. The written report of the incident was lodged by P.W. 2 Visram, the uncle of prosecutrix. Since Km. Puneeta belonged to the scheduled caste community, the case under Sections 376 I.P.C. and 3(i)(xii) and 3(2)(v) S.C. and ST. (prevention of Atrocities) Act, was registered against the appellant.
3. P.W. 6 - Dr. Seema Chaudhary, the then Medical Officer of Women's Hospital, Basti, admitted Km. Puneeta on 12.11.1996, in the hospital on a reference made from the District Hospital. She was bleeding from her vagina and perennial tear was present. She was given treatment and remained admitted in the hospital till 19.11.1996.
4. On 16.11.1996, P.W. 5, Dr. Renu Roy examined Puneeta in the hospital and prepared her medical report (Ext. Ka-4). Her axillary and pubic hair were neither found developed nor there was any development of her breast. Though, there was no external injury present on her body but a perennial tear with small laceration in its healing phase was noticed. There was tenderness in her vagina, which admitted the tip of little finger with difficulty. Dr. Renu Roy also prepared the slide of her vaginal smear for pathological test and referred her for ossification test in order to determine her approximate age. The C.M.O. Dr. Ram Chandra, P.W. 4 on the basis of x-ray examination conducted upon Km. Puneeta gave his report about her age (Ext. Ka-3) and in his estimation Km. Puneeta was found.only 11 years of age.
5. The case after its registration at the police station was investigated. The investigation was first taken up by P.W. 8, Sub-Inspector-Vijay Pal Singh, who recorded the statement of the accused at the police station itself where he had been taken after his arrest on the spot by the witnesses and the complainant. The next day i.e. 13.11.1996 P.W. 8 recorded the statements of the complainant and other witnesses and went to the place of occurrence, prepared the site plan (Ext. Ka-10) and took blood stained panty (material ext.-1) of the prosecutrix in his possession and got it sealed before the witnesses after preparing its memo (Ext. Ka-2). The later part of the investigation was taken over by the Circle Officer, Vansh Lochan Pandey, who after concluding it submitted charge sheet (Ext. Ka-11) in this case.
6. The appellant accused did not submit to the charges and pleaded not guilty to the same. He has stated in his statement recorded under Section 313 Cr.P.C. that he had been falsely implicated in this case on account of enmity. He has however, admitted that the prosecutrix belongs to the community of 'Chamar', a scheduled caste
7. The prosecution in this case has examined P.W. 1, Smt. Samundra Devi, P.W. 2 - Visram, the complainant, P.W. 3 - Km. Puneeta, the prosecutrix, P.W. 4 - Dy. C.M.O. Dr. Ram Chandra, then acting as C.M.O., Basti, P.W. 5 - Dr. Renu Roy, P.W. 6 - Dr. Seema Chaudhary, P.W. 7 - Constable Shesh Narain Tewari and P.W. 8 Vijay Pal Singh, who had initially taken over the investigation of the case. P.Ws.1 to 3 are the witnesses of fact whereas the remaining are formal witnesses corroborating the facts necessary to prove the prosecution allegations made against the appellant.
8. The prosecution has also proved documents Ext. Ka-1 to Ka-11, which include written report of the occurrence, chik F.I.R., medical reports of Km. Puneeta, site plan, extracts of general diary etc.
9. The defence in this case has neither examined any witness nor has filed and proved any document.
10. Learned Trial Judge in the present case, after having heard the learned Counsel for the parties and on considering the entire material available on record, found that the charge punishable under Section 376 I.P.C. was proved to the hilt against the appellant and accordingly he recorded conviction of the accused for the said offence and sentenced him to ton years rigorous imprisonment. The trial Court however, did not find the appellant guilty for the charges under Sections 3(i)(xii) and 3(2)(v) S.C. and ST. (Prevention of Atrocities) Act and he was acquitted for the same.
11. The appellant accused had all through remained in the lock up during his trial and is still inside the jail as has not been granted bail in this appeal also. Therefore, he has preferred this appeal from jail.
12. I have heard Sri Pankaj Shukla, Amicus Curiae appointed in this case to represent the appellant, learned A.G.A. and have gone through the paper book and also the original record received from the trial Court.
13. The learned Amicus Curiae appearing for the appellant has tried to demonstrate certain shortcomings in the evidence of the prosecution and has submitted that the statement of Km. Puneeta, the prosecutrix is not such on which the Court can repose confidence for recording conviction of the accused. She is a minor girl with little understanding and the trial Court while examining her before it, has not properly tested her capability to understand the sanctity of oath administered before the Court for giving evidence. It is also submitted by the learned Amicus Curiae that she, on account of being a minor girl, has not been able to understand the exact implication of what she was stating in the Court while giving her evidence.
14. As regards the statement of Km. Puneeta (P.W. 3), a perusal of the same shows that she might be a girl of tender age of about 12 years at the time of her examination as a witness, but the account of incident which she has given cannot be said to be a faulty exercise of the Court. She after having understood the questions put by the respective parties during the course of her examination before the Court, has given her replies and the details of the incident as narrated by her and as reproduced shows that the evidence of P.W. 3 is quite natural and trustworthy. This witness, before her examination-in-chief commenced, was tested for her capability to understand the sanctity of oath and few questions put to her have been replied in a manner showing her full understanding about the implication of oath administered to her. She has clearly stated that in case she deposes something which is untrue after taking the oath, it is considered to be bad. Obviously, the girl aged about 12 years on the date of her examination before the Court does understand the sanctity of oath and her statement as reproduced during the trial, appears to be quite natural and trustworthy. She has given a positive evidence of the fact that on the date of incident while she was going to see her mother in a sugarcane field, she was intercepted by the accused appellant near the standing sugarcane field of Manohar and she was dragged in the field where she was raped after taking off her panty by the accused appellant on the spot. She has also narrated in details the stages as to how the accused committed this barbarous act. Km. Puneeta has vehemently denied the suggestion of defence about having any prior enmity with the accused. Otherwise also there is nothing in her cross examination as even to indicate about there being any previous enmity between the parties which might occasion to falsely implicate the accused in this case.
15. The evidence of this witness further gets fully substantiated by the evidence of Smt. Samundara (P.W. 1), who was the person having immediately arrived at the place of incident after the alarm was raised by Km. Puneeta. This P.W. 1, Smt. Samundara has also given a vivid description of the whole scene about the alleged commission of rape upon Km Puneeta by the accused. The learned Amicus Curiae while making his submissions for the accused has referred to the evidence of P.W. 1 appearing in the cross examination where she stated that she had taken less than half an hour in reaching the place of incident after hearing the alarm. On the strength of this statement he has tried to demolish the credibility of this witness on the ground that she is a person who had not actually seen the incident as on her own admission she arrived at the place of incident after about half an hour. On the basis of this one sentence appearing in the evidence of P.W. 1, her whole testimony cannot be rejected by this Court. The defence does not get any strength only on such ashtray statement appearing in the evidence of a witness. Smt. Samundara, P.W. 1 is an illiterate lady and this fact has to be kept in mind by the Court while appreciating her evidence. The assessment of timing given by such illiterate witnesses obviously, cannot be said to be a precised ground for placing or not to place reliance upon their evidence. In fact, the duration of half an hour or two minutes or five minutes are something which is hardly distinguishable by an illiterate lady of village background like Smt. Samundara (P.W. 1). Therefore, if at one place she had stated that she took less than half an hour in reaching the place of incident, that will not go out rightly to reject the other parts of her statements in which she claims to have seen the incident of commission of rape by the accused appellant against the prosecutrix. P.W. 1 is also a witness for the fact of the accused trying to run away from the scene after having sensed the arrival of the witnesses on the spot. The statement of P.W. 1, thus, also appears to be very natural and very consistent to the narration of the incident as given by the prosecutrix in her evidence before the Court. It has also been tried to be summarised by the learned Amicus Curiae that Smt. Samundara, P.W. 1 is a witness closely related to the prosecutrix. Whether or not a witness is related to the prosecutrix or the complainant is not always material in such cases, more specially when the person accused of the offence is one against whom the witness does not possess any animus whatsoever to implicate him or her falsely in the case. This P.W. 1 is also a witness who does not possess any enmity from before with the accused. She gives a natural narration of the whole story and the way she has described the scene of crime her statement cannot be brushed aside, simply because she is a relative of the prosecutrix. So is also the statement of P.W. 2, Visram, the complainant, who happens to be the uncle of the prosecutrix. He is also not inimical to the accused from before and he is a witness of fact of having noticed the accused trying to run away from the spot. The very act of the accused trying to run away from the spot and his immediate arrest after a little chase is a very important circumstance in this case which goes to substantiate the whole statement of the prosecutrix about the commission of rape committed against her by the accused. This P.W. 2 had arrived at the scene after having heard the alarm raised by Km. Puneeta, the prosecutrix and P.W. 1 Smt. Samundara. He arrived at the spot along with two other witnesses Pardeshi and Bhagwan Das, who have not been examined in the case. The non examination of these two other witnesses is also not material in the present facts and circumstances and the argument of the learned Counsel in this context for finding fault in the evidence of prosecution does not appear to hold any substance. This witness is also one who had seen the blood oozing out from the vagina of the prosecutrix after the alleged commission of rape against her. He is also a witness of fact of the arrest of the accused at a little distance from the scene of occurrence. He is also a person, who after getting the report of the incident scribed by a third person, had gone to the police station for lodging it in the company of other people namely Pardeshi, Bhagwan Das, Lalai Ram and had also taken the accused under arrest to the police station. The statement of the prosecutrix gets full substantiation and support in the evidence of P.W. 2 also. This evidence of P.W. 2 on proper scrutiny has not been found to be untrue in any respect except one or other exaggeration appearing therein and which is very natural also to occur in the evidence given by such illiterate people of village background.
16. Thus, from the above it appears that the evidence given by P.W. 1 and P.W. 2 go to support all the facts and circumstances as appearing in the evidence of the prosecutrix (P.W. 3) and the trial Court does not appear to have committed any error in the appreciation of the same.
17. It is a case of rape committed on a tender aged girl of about 11 years of age in which she had received substantial injuries on her private part. The injuries get fully corroborated in the medical examination report and her bed-head ticket (Exts. Ka-4 and Ka-6) which documents have been proved by P.W. 4, Dr Ram Chandra, P.W. 5 Lady Dr. Renu Roy and P.W. 6 lady Dr. Seema Chaudhary who have proved her age and the injuries as well as her mental and physical conditions at and after her admission to the hospital on 12.11.1996. Km. Puneeta had a perennial tear which was found bleeding at the time of her admission to the hospital as observed in her bed-head ticket (Ext. Ka-6). The fact about the presence of perennial tear has been further confirmed by P.W. 5 Dr. Renu Roy while preparing her medical report in, Ext. Ka-4. This perennial tear had however, stopped bleeding when she examined her after four days of the incident on 16.11.1996. This tender aged girl who did not have any secondary sexual character had been subjected to such barbarous act of the accused for satisfaction of his sexual lust and this act is more than obvious from these medical reports and her bed head tickets etc. prepared by the aforesaid two Doctors. The argument of the learned Amicus Curiae that the panty of the prosecutrix which is said to be bloodstained was not sent for serological text for confirmation of such presence of blood on it, will hardly have any significant adverse effect to make on the prosecution case in face of such overwhelming medical evidence demonstrating to the fact of commission of rape upon the prosecutrix and consequent injuries sustained by her in such incident.
18. The Investigating Officer, S.I. Vijai Pal Singh (P.W. 8) has also given corroborative evidence in the case about the place of incident etc. and in the cross-examination this fact has' come that while Inspecting the exact spot he found that inside the sugar cane field the place Where the rape was said to have been committed, the grass on the ground was scrapped and trampled. He has prepared the site-plan of the place of occurrence (Ext. Ka-10) depicting all these details therein. The place where the accused was arrested by the witnesses is shown in the site-plan at a distance of about 100 paces from the place of incident. The F.I.R. (Ext. Ka-8) also depicts to the fact that it has been promptly lodged at the police station located at a distance of about 13 k.m. from the place of incident. In that way the F.I.R. Is prompt.
19. Therefore, in the light of such overwhelming evidence as described above, the trial Court appears to have rightly found the charge of commission of rape under Section 376 I.P.C. as proved to the hilt and there is nothing on record on the basis of which the judgment impugned as recorded by the trial Court requires to be interfered with in this appeal.
20. As regards the quantum of punishment awarded in the present case to the appellant, it also appears to be quite reasonable. The, accused was perfectly an adult person of 25 years of age on the date of the incident when he committed this heinous offence in a barbarous manner subjecting a tender aged girl of about 11 years to forcible rape in order to quench his sexual thirst. The act was so much cruel and inhuman that the prosecutrix had to be remained admitted for several days in the hospital for treatment. It is an admitted fact that the minor girl belonged to a 'Dalit' Class and the accused being a member of Non-Dalit Class had all the guts and courage to down grade and humiliate the prosecutrix in such a cruel manner. He obviously does not deserve any sympathy by the Court in so far as it relates to the award of punishment in the present case. Therefore, if the trial Court has awarded him punishment of rigorous imprisonment of ten years it could not be said to be unreasonable and does not require to be reduced to any lower punishment.
21. In the result, the appeal having no force is hereby dismissed.
22. Let a certified copy of this judgment be immediately transmitted to the trial Court concerned along with original record by the office for all follow up action required in the case.
23. A certified copy of this judgment be also sent to the Superintendent Jail concerned where the appellant has been lodged after his conviction.