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1993 DIGILAW 392 (MP)

ABHAY KUMAR v. STATE OF MADHYA PRADESH

1993-08-11

D.M.DHARMADHIKARI

body1993
D. M. DHARMADHIKARI, J. ( 1 ) THE two appellants in this case have been convicted under Section 376 of the I. P. C. and sentenced to three years rigorous imprisonment. Notices have also been issued to them, why their sentence be not enhanced as the minimum prescribed sentence under Section 376 I. P. C. is seven years. ( 2 ) THE prosecutrix Poonam (P. W. 1) aged 18 years is a married woman. According to her version in the witness box, on 6. 10. 1990 at about 7. 00 in the evening when she had gone to a field for easing herself, the two accused persons committed rape on her against her wish. According to the medical opinion of lady doctor Lalita Gupta (P. W. 4), there were no marks of any injury on the person of the prosecutrix and since she was accustomed to sexual intercourse, no definite opinion could be formed whether any rape was committed on her. The learned trial Judge placing reliance on the testimony of the prosecutrix, which is corroborated to some extent, by the other witnesses concerning the connected circumstances, held the accused guilty of the offence and punished them with sentences mentioned above. ( 3 ) THE learned counsel appearing for the accused persons assails the conviction on two grounds. It is urged that there is no evidence on record in proof of commission of rape. It is next urged that the circumstances and the statement of the prosecutrix go to prove that she was a consenting party, if at all and intercourse had taken place between her and the accused. On the question of notices for enhancement of sentence, the learned counsel for the accused submits that since the accused persons are first offenders and of young age, less than minimum prescribed sentence could be imposed by the learned Sessions Judge. ( 4 ) I have been in details, taken through the statement of prosecutrix Poonam (P. W. 1) and 1 find no reason to discredit her testimony. She has very clearly stated that when the accused persons caught hold of her, she had raised a cry and offered some resistance, but the two accused persons forced her to sexual intercourse. ( 4 ) I have been in details, taken through the statement of prosecutrix Poonam (P. W. 1) and 1 find no reason to discredit her testimony. She has very clearly stated that when the accused persons caught hold of her, she had raised a cry and offered some resistance, but the two accused persons forced her to sexual intercourse. The argument advanced on behalf of the accused cannot be accepted that although there was enmity between the family members of the accused and these of the prosecutrix, there had developed some intimacy between them. There is no foundation in evidence to come to such a finding as is sought to be urged on behalf of the accused. ( 5 ) THE contention advanced on behalf of the accused that there is no evidence of rape is also without any merit. Since the prosecutrix was a married lady, the lady doctor could give no definite opinion about commission of forcible scxual intercourse, but the testimony of the prosecutrix inspires confidence that she was subjected to sexual intercourse as she was over powered by two accused persons. There is no circumstance to suggest that she would falsely implicate the two accused persons. ( 6 ) THE conviction of the accused persons, therefore, deserves to be maintained. So far as the notices of enhancement of sentence are concerned, it is true that the learned Sessions Judge has not recorded any reason for imposing less than seven years sentence. In this appeal, however, it is open to me to consider any special reasons for imposing a lesser sentence than the minimum prescribed. At the time of the commission of the crime, the two accused persons were very young. It is also not disputed that they are rust offenders. The incident is also of October, 1990 and the accused were never released on bail. For the above special reasons I do not think this to be a fit case to enhance the sentence imposed by the learned Sessions Judge. ( 7 ) CONSEQUENTLY, the appeal fails and is hereby, dismissed by maintaining the conviction and sentence imposed by the learned Sessions Judge. Appeal dismissed. .