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2007 Supreme(All) 2056
[2007(9) ADJ 168 (DB)]
ALLAHABAD HIGH COURT
BEFORE : IMTIYAZ MURTAZA AND A.K. ROOPANWAL, JJ.
BACHCHA ........Appellant (In Jail)
Versus
STATE OF U.P. ......Opposite Party
(Criminal Appeal No. 2696 of 2006, decided on 3rd August, 2007)
Counsel :
Vijay Bahadur Shivhare for the Appellant; M.S. Yadav, A.G.A. for the Opposite Party.
Headnote:(A) (Indian) Penal Code, 1860—Sections 375, 376, 354, 306, 366 and 511—Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989—Section 3(2)(5)—Criminal Procedure Code, 1973—Section 222—Rape—Attempt to rape—Outrage of modesty of a minor girl—Kidnapping—False implication of appellant—Ground of enmity is not palatable—Prosecution story regarding time, place and manner of occurrence is fully proved—Also proved that prosecutrix cried on which all went to house of appellant—Proved that appellant had enticed away prosecutrix in his house—Undressed her and himself and sat on her body—However, element of penetration is main ingredient for offence of rape—Not proved—Conviction under SC/ST Act—Wholly unwarranted—Provision does not prescribe a substantive sentence—Passing a separate order of conviction and sentence under Section 3(2) (v) of SC/ST Act cannot be said to be legal—In present case appellant had enticed away victim to his house—With intention of committing illicit intercourse—Offence committed by appellant would definitely fall within ambit of Section 366 of IPC—Essence of a woman’s modesty is her sex—Proved from record that accused not only took victim to his house—Also used criminal force against her intending that he will thereby outrage her modesty—All ingredients of Section 354 of IPC made out against appellant—Conviction awarded set aside—However, appellant convicted under Sections 366 and 354 of IPC. [Pars 36, 37, 38, 42, 51, 56 and 57]
(B) Criminal trial—Interested witness—Appreciation of Evidence—Relationship of witnesses cannot be a ground to discard them—But, while assessing their evidence Court must be at guard. [Paras 22 and 23]
(C) (Indian) Penal Code, 1860—Section 511—"Attempt to commit rape"—Connotation of—No evidence to show that appellant at all tried to penetrate his male organ into vagina of girl—Hence, appellant could not be held guilty for attempt to commit rape. [Para 34]
Hon’ble A.K. Roopanwal, J.—The present appellant faced trial in S.T. No. 205/1996 for having allegedly committed rape on the girl of tender age whose name need not be indicated and she can be described as the victim or prosecutrix. The Special Judge, S.C./S.T. Act, Hamirpur found the appellant guilty of offences punishable under Sections 376 read with Section 511, I.P.C. and Section 3 (2) (v) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as the S.C./S.T. Act). He was sentenced to 10 years R.I. under Section 376/511, I.P.C. and a fine of Rs. 2,500/- and life imprisonment under Section 3 (2) (v) of S.C./S.T. Act alongwith fine of Rs. 2,500/-. All the imprisonments were made to run concurrently.
2. The prosecution version in a nutshell is that on 16.6.1996 at about 4.00 p.m. the prosecutrix was playing with his brother Jai Narain in front of her house. The appellant came there and enticed her away to his house and closed the door. After sometime the cries of the girl were heard by Jai Narain who told this fact to the complainant who alongwith Bhagwan Das, Khem Chand and Pramod reached at the house of the appellant. As the door was closed, they all made entry from the roof and apprehended the appellant red handed committing rape with the prosecutrix. It was 4.30 p.m. The prosecutrix was all naked and was bleeding through her vagina.
3. The complainant got the report of the incident written from Pancham Singh and gave it at the police station Jalalpur, District Hamirpur, alongwith the appellant. On the basis of this report chik FIR was written by Constable Agnu Ram on 16.6.1996 at 9.50 p.m. He made the entry of the case at the same time in the relevant G.D.
4. The investigation of the case was taken up by the then CO., Rath, Shri Hari Prakash Sharma. He recorded the statements of the complainant, prosecutrix, witnesses Bhagwan Das, Khemchand, Pramod, Jai Narain, Devendra and Babu. He inspected the place of occurrence and prepared the site plan. He also recorded the statements of villagers Natthu, Sitaram, Nandi and others. He also recorded the statement of the Doctor, who had examined the prosecutrix. After concluding the investigation, the I.O. submitted the charge-sheet.
5. The appellant was charged under Section 376, I.P.C. and under Section 3(2)(v), S.C./S.T. Act by the Sessions Court who tried the matter. The appellant denied from the charges and claimed for his trial.
6. The prosecution in order to prove the charges examined P.W. 1 complainant Shiv Charan, P.W. 2, the prosecutrix, P.W. 3, Doctor Mrigendra Rajput, P.W. 4, Jai Narain and P.W. 5, CO. Police Hari Prakash Sharma.
7. The appellant was examined under Section 313, Cr.P.C. in which he totally denied from the prosecution case and said that the prosecution is completely false. In his defence he examined D.W. 1 Chandra Bhan.
8. P.W. 1, the complainant of the case in his statement supported the prosecution version as disclosed in the written report which was proved by him as Ex. Ka-1.
9. P.W. 2, the prosecutrix stated that it was about 4.00 p.m. when the occurrence took place. She was playing with glass balls at her door. Babu and Jai Narain were also playing with her. Appellant came there and took her away in his house. Nobody was present in the house. The appellant made her naked and also undressed himself. Thereafter he laid her down on the ground and came over her. She cried which were heard by her brother. He called her father who came with some other persons. The appellant ran away.
10. P.W. 3, Dr. Mrigendra Rajput stated that on 17.6.1996 he was working as Gynaecologist at Government Hospital, Rath. On this date at 9.45 a.m. he examined the prosecutrix. No external injury was found either on her person or her private parts. The hymen was not torn nor there was any sign of injury on it. The vagina was not admitting even a single finger. Vaginal swab was taken and was sent for pathological examination. The docto
