B.S. Verma, J.This appeal u/S. 374 Criminal Procedure Code (for short Cr.P.C.) has been preferred against the judgment and order dated 28-4-2010, passed by Additional District and Sessions Judge/4th F.T.C. Haridwar, in Sessions Trial No. 460 of 2007, State v. Lakshman, whereby the accused/appellant has been convicted u/S. 376/ 511 I.P.C. and sentenced to undergo five years R.I. and to pay a fine of Rs. 5,000/- and in default of payment of fine to further undergo S.I. for six months. The prosecution case, in brief is that, complainant Gopal handed over a written report Ext. Ka. 1 at Police Chauki Har-ki-Pauri Haridwar on 11-6-2007, mentioning therein that he is resident of District Chittorgarh, Rajasthan and he had come to Haridwar to flow the funeral bone of his father into Ganga river. His daughter Km. Khusboo aged about five years, had gone toilet in the Bathroom built under the Sanjay bridge and her mother Smt. Gitabai was standing outside the toilet. Hearing the cry of the baby she went inside the toilet and saw the accused running outside from the bathroom. Smt. Gitabai caught hold the accused. Thereafter the girl was taken out from the bathroom and she complaint of pain in her private part. The complainant had brought the accused with them at the police chauki. On the basis of written report, chick F.I.R. Ext. Ka. 5 was prepared and a case crime No. 313/2007 u/S. 376/ 511 I.P.C. was registered against the accused, carbon copy of the G.D. has been proved as Ext. Ka. 6.

2. The girl was medically examined by the doctor on the same day of incident, i.e. 11.6.2007 at C.R.W. Hospital, Haridwar and prepared medical report Ext. Ka. 5.

3. The investigation of the case was conducted by S.I. Kundan Singh Rana. He had visited the place of occurrence and prepared site-plan Ext. Ka. 2 and recorded statements of the witnesses. After completing the investigation he had submitted charge-sheet, Ext. Ka. 3 against the accused.

4. The C.J.M. Haridwar vide his order dated 17-12-2007 committed the case to the Court of Session.

5. The learned Addl. Sessions Judge/3rd F.T.C. framed charge u/S. 376/ 511 I.P.C. against the accused. The accused pleaded not guilty and claimed his trial.

6. The prosecution to prove its case got examined P.W. 1, Gopal complainant, P.W. 2, Smt. Geeta, mother of the girl, P.W. 3, Khusboo prosecutrix, P.W. 4, S.I. Kundan Singh Rana, I.O., P.W. 5, Dr. Chandra Prabha Singh and P.W. 6, 984 C.P. Kanta Prasad.

7. The accused in his statement u/S. 313, Cr.P.C. has denied the prosecution case and alleged that he is innocent and when he was running after coming out from bathroom the wife of complainant caught hold of him and he had not even touched the girl.

8. The learned Addl. Sessions Judge, after considering the evidence on record and hearing the counsel for the parties, found the accused guilty of attempt to commit rape upon the baby and convicted him u/S. 376/ 511, I.P.C. and sentenced him.

9. Feeling aggrieved, this appeal has been preferred by the accused/appellant.

10. I have heard learned counsel for the parties and perused the record.

11. P.W. 1, Gopal, has proved the written report, Ext. Ka. 1. This witness has stated on oath that he along with his wife Smt. Geeta, daughter Km. Khusboo, and some other relatives had come to Haridwar to flow the funeral bones of his deceased father into river Ganga. Near Har-ki-Pauri, Haridwar his daughter Km. Khusboo had gone to toilet in the toilet-room and his wife was standing outside the toilet-room. Suddenly she heard the cry of the baby and she went inside the toilet-room and accused Lakshaman ran away from there and they caught hold of the accused. The girl complained pain on her private part. Thereafter they went to the police chauki and handed over the written report as well as the accused there. This witness has been cross-examined at length but nothing incriminating has been elicited from it, which may render his statement as unworthy.

12. P.W. 2, Smt. Geeta, mother of the baby also deposed the whole incident and fully corroborated the statement made by P.W. 1, Gopal.

13. P.W. 3, Km. Khusboo is the girl child, upon whom the accused attempted to commit rape. The court has asked a number of questions from the baby and the court has observed that the child is so small that she cannot tell anything clear. She belongs to another State and her language is not understandable.

14. According to the complainant the baby was five years old and a teen-age girl like P.W. 3, Km. Khusboo was not expected to have narrated the misdeed which the accused was attempting upon her. However, from the statements of eye-witnesses P.W. 1 Gopal and P.W. 2, Smt. Geeta, it is amply proved that when the baby was inside the toilet-room, and she cried, P.W. 2, Smt. Geeta entered inside the toilet-room and then accused tried to firstly run away and he was caught by the parents of the baby red-handedly at the spot and then he was handed over to the police by them the same day. It has also come in the statement of P.W. 1, Gopal and P.W. 2, Smt. Geeta that when the baby had complained of pain on her private part, Smt. Geeta had seen swelling and redness on it. Thus, there was no occasion and reason for these witnesses to falsely implicate the accused, as the accused was caught red handedly and was handed over the police the same day.

15. P.W. 5, Dr. Chandra Prabha Singh had medically examined the baby the same day of incident, i.e. 11.6.2007 and the doctor had found swelling around the private part of baby, but no injury was found and there was no discharge and bleeding and baby did not co-operate in internal examination. The doctor had opined that attempt to commit rape upon the baby was made.

16. The learned Addl. Sessions Judge has observed that the victim who was sole eyewitness of the incident was incompetent witness and considered the circumstances. The trial court also took note of the fact that cry of the victim and arresting of the accused from the place of occurrence while escaping as part of the same transaction of the incident are admissible u/S. 6 of India Evidence Act and these are very important incriminating circumstances against the accused. Further the parents of the victim had seen the accused trying to run out from the toilet-room when the baby cried and he was caught red-handedly there.

17. In the above facts and circumstances of the case, I do not find any illegality and error in the impugned judgment and the same is liable to be affirmed.

18. The appeal lacks merit and is dismissed. The impugned judgment and order passed by the trial court is upheld.

19. Learned counsel appearing on behalf of the appellant has submitted that the accused/appellant has already undergone the sentence passed against him. Let the record be transmitted to the trial court to verify this fact whether the accused/appellant has already served the sentences passed against him or not.