VINOD PRASAD, J. - (1.) SOLITARY appellant Bachhu S/o Kishore, R/o Farah locality, committed rape upon a five years old infant girl child Omvati, on 6.6.1977 at about 8 p.m., in village and P.S. Farah, district Mathura, and consequently was tried for the said scurrilous offence by Ist Additional Sessions Judge, Mathura in S.T.No.11 of 1978, State v. Bachhu, and, since prosecution successfully anointed his guilt, therefore, was convicted and sentenced by the Learned Trial Judge for that abashed crime for five years rigorous imprisonment, vide judgment and order dated 26.11.1981, and hence challenge in this appeal, by the convicted appellant, is to his aforesaid conviction and sentence.
(2.) RECAPITULATING prosecution allegations, as was got stated in the First Information Report, Ex. Ka.1, by the informant Raman Lal (PW3), father of the victim, and later on testified by the fact witnesses during trial, were that informant's daughter, Omvati, (victim) was playing in front of her house on 6.6.1977 at 8 p.m., when the appellant, a barber by caste, on a false pretext to give her crushed ice, enticed her away, and then taking her in Boori Singh Jatav's pen, outraged her modesty. Adolescent shrieked, which attracted her mother Saraswati (P.W.4), Kishana (P.W.1), Ikram, Gopi Lal (P.W.2) and Surendra Pal towards rape scene, and in the flashed torch lights, they all witnessed carnal copulation being committed by the appellant, who, locating them, sprinted away from the spot. Victim narrated the incident to her mother Smt. Saraswati (P.W.4). At that time informant Raman Lal (P.W.3), victim's father, was not present at his house and after his return, after some time, he was narrated about the abash. Rankled by the faux pas, informant PW3 got crime FIR, Ext.Ka.1, scribed from Nathi Lal, and after measuring a distance of 1-1/2 furlong lodged it at PS.Farah, same day at 11 p.m. as crime No. 109 of 1977, under section 376 I.P.C. Head Moharrir Bishambhar Singh registered the crime, prepared chik report, Ext. Ka.3, and general diary, Ex. Ka.4. Investigation into the offence was conducted by S.I. Anwar Mohammad, PW6. I.O. seized and sealed victim's underwear (material Ext.1) and frock, and prepared it's recovery memo, Ext. Ka.5. Thereafter victim was sent for her medical examination. P.W.6, thereafter, inked statements of the witnesses and subsequent thereto conducted spot inspection and prepared site plan Ext.Ka. 6. I.O. had attempted to interrogate victim as well, but she was unable to speak. I.O. had also sent victim's underwear (Chaddi) for its chemical examination. Concluding investigation, PW6, had charge-sheeted the appellant on 27.6.1977, for an attempt to commit rape under section 376/511, I.P.C., vide Ex. Ka.8, on which basis case No. 879/DC of 77, State versus Bachchu, was registered in the Court of CJM, Mathura. Victim's medical examination was conducted on 7.6.1977 at 10.15 a.m. in Women's Hospital, Mathura by medical officer Dr. Durga Bai (P.W.5) who had found her height to be 90 cm, weight 10 kg, teeth 10/10 with space present in both the jaws on both the sides, hair absent, and breast not developed. On her internal examination doctor had noted following facts:- "one or two dry white spots present on underwear. Labia majora swollen, red and tender. Hymen present (intact).No mark of injury locally on any other part of body. Underwear preserved and handed over to police for examination." Doctor had referred her for x-ray for confirmation of victim's age. X-ray of the victim was done on 8.6.1977 and according to it's findings epiphysis of both epicondyle of humerous and head of radius and ulna process had not appeared. In wrist joint epiphysis of lower end of ulna had not appeared. Four carpai bones were present. According to X-ray report victim was 5 years of age.
(3.) LEARNED CJM, Mathura, summoned the appellant to face trial for the charge-sheeted crime, and since, the same was Session's triable, he committed the case to the Session's Court for trial 2.1.1978, where it was registered as S.T. No. 11 of 1978, State versus Bachchu. Ist Additional Sessions Judge, Mathura charged the appellant with offence under section 376/511, I.P.C. on 25.7.1980, which charge was abjured by the appellant, who claimed to be tried and hence to establish his guilt, trial procedure was under taken.;