Durga Mani vs State of U.P.

N.K. Mehrotra, J.—This is a criminal appeal u/s 374(2) of the Code of Criminal Procedure against the judgment and order dated 28.10.1993, passed by the Sessions Judge, Gonda in Sessions Trial No. 97 of 1991 convicting the Appellant u/s 376, I.P.C. read with Section 511, I.P.C. and sentencing him to undergo two year''s rigorous imprisonment.

On the listed date of hearing, nobody appeared from the side of the accused-Appellant to argue the appeal. Initially, the appeal was filed by a learned advocate who has been elevated to the Bench. Although, not required but even then in the interest of justice, a notice was sent by the Registry to the Appellant to engage another counsel ; despite service of the notice, the accused-Appellant has not bothered to appear and engage the counsel for arguing the appeal.

Since this appeal was filed in May, 1993 and the incident relates to the month of June, 1990 and there was sufficient notice to the Appellant''s counsel, it was considered proper in the interest of justice to hear and dispose of the appeal on merit after following the decision of the Supreme Court in Bani Singh and ohters Vs. State of U.P., . It was held by the Supreme Court that:

It is the duty of the Appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385-386 of the Code. The law does not enjoin that the Court shall adjourn the case if both the Appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial court.

In this case, it was not found a fit case to grant indulgence when the appeal was filed in the year 1989 and since then, it is pending and there is sufficient notice to the learned Counsel for the Appellant, therefore, I heard the learned Additional Government Advocate, perused the record and made scrutiny of the evidence on record myself.

The prosecution story as set out in the F.I.R. is that on 13.6.1990 at about 5.00 p.m. when the complainant''s nine years old daughter Km. Punam had gone to the pond on the eastern side of the village in order to graze her she-buffalow, the accused Durga Mani, who was sitting at a nearby place under his mango tree to keep watch over the mango crop, called the minor girl on the pretext of offering her mango and after seducing her by giving her mango, he attempted to commit rape upon her by pulling her underwear down. The shrieks of the girl attracted witnesses Mathura Prasad along with Bhagwati Prasad and Rakesh Kumar, maternal uncle and son of the complainant to the place of the occurrence. They rushed at the spot, witnessed the incident and tried to apprehend the accused who, however, fled away from the spot.

The complainant thereafter, lodged a written report on the same day at about 7.00 p.m. on the basis of which a case u/s 376/511, I.P.C. was registered at the police station Dhaneypur, district Gonda.

The investigation of the case was entrusted to S.I. Sri Harihar Nath Awasthi who after completing the investigation submitted the charge-sheet against the accused.

Prosecutrix Km. Punam was medically examined on 14.6.1990 at 1.30 p.m., by lady Dr. (Smt.) Ranjana Singh in District Women Hospital, Gonda. According to the medical report of the lady Dr. (Smt.) Ranjana Singh, the hymen was intact, the vagina did not admit even the tip of finger, no bleeding, no laceration over the private parts and no discharge at present. For determination of the age of the prosecutrix, a reference was made to the Senior Radiologist, District Hospital, Gonda and after receipt of vaginal smear report and X-ray report along with X-ray plate, from the District Hospital, Gonda, she prepared supplementary report wherein she opined that the age of the prosecutrix was about nine years at the time of her medical examination.

In the Court of Sessions, the accused was charged under Sections 376/511, I.P.C. who pleaded not guilty and claimed to be tried.

In support of its case, the prosecution examined complainant Kamini Prasad, P.W. 1, Km. Punam, P.W. 2 and Bhagwati Prasad, P.W. 3 as witnesses of fact whereas, lady Dr. (Smt.) Ranjana Singh, P.W. 4, Head Constable Krishna Kumar Singh, P.W. 5 and S.I. Harihar Nath Awasthi, the Investigating Officer of the case, have been examined as formal witnesses.

P.W. 1 complainant Kamini Prasad is the father of the prosecutrix. He is not an eye-witness. He has proved the age of the prosecutrix. He has also proved the written report. He has stated that the report was lodged on the basis of information received from his daughter Km. Punam, his son Rakesh and maternal uncle Bhagwati Prasad. There is prompt F.I.R. narrating the true version given by Km. Punam to her father.

P.W. 2 Km. Punam is the prosecutrix. There is no reason to disbelieve her statement. She is an innocent child witness. She has given the entire statement to prove the charge u/s 376/511, I.P.C. The learned trial court has discussed the evidence of Km. Punam in detail.

The statement of Km. Punam is corroborated by another eye-witness P.W. 3 Bhagwati Prasad who is the real maternal uncle of Kamini Prasad. Thus, the statements of these two witnesses namely ; Km. Punam, the prosecutrix (P.W. 2) and Bhagwati Prasad (P.W. 3), an eye-witness are sufficient to hold accused guilty u/s 376/511, I.P.C.

The theory of defence that the accused has been falsely implicated at the instance of the complainant because prior to the alleged occurrence, he had slapped the complainant''s son Rakesh Kumar and others on finding the mango fruits belonging to his trees being plucked by them. In my opinion, this theory cannot be accepted that a person will make a false story of outraging the modesty of his minor girl merely in a revenge of slap given by the accused to his son. After seeing the evidence on record and the impugned judgment of the learned Sessions Judge, I am convinced that the findings recorded by the learned Sessions Judge are in accordance with the evidence on record and there is nothing to disbelieve the prosecution story as narrated by Km. Punam and an eye-witness Bhagwati Prasad. Therefore, the appeal has no force.

In result, the appeal is dismissed. The impugned judgment dated 28.10.1993 of conviction and sentence u/s 376 read with Section 511, I.P.C. against accused-Appellant Durga Mani is hereby confirmed.

Let a copy of this judgment be sent to the Chief Judicial Magistrate concerned within seven days for immediate compliance and report within one month.