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2003 DIGILAW 702 (MP)

Kailash Chandra v. State of M. P.

2003-05-09

S.K.SETH

body2003
JUDGMENT Being aggrieved by the judgment passed by the 2nd Additional Sessions Judge, Ratlam in S.T. No.166/92, the appellant has filed this appeal to challenge his conviction under S. 354 of the IPC for which he has been sentenced to undergo one year R.I. Prosecution case in brief was that on 6.4.1992 the appellant, who was working in the shop of the father of the prosecutrix, induced her to accompany him to an empty room where he sexually assaulted her. At the time of the incident, the age of the prosecutrix was 3 years. When the prosecutrix informed her father Arun Agrawal, he immediately lodged the FIR ExP.1 on the same day. As a result, the investigating machinery swung into the action and after completion of the investigation, filed challan against the appellant. At trial, appellant abjured his guilt and submitted that he has been falsely implicated due to enmity. Shri Jaisingh, senior counsel alongwith Shri Vikas Yadav appearing for appellant, submitted that no offence under S. 354 of the IPC is even made out on the facts and circumstances of the case. According to him, it is clear from the evidence on record that the appellant has been falsely implicated and the whole prosecution case revolves around the narration of the facts as disclosed by (PW6). No reliance can be placed on the testimony of the prosecutrix (PW 6) who is a child witness and once the evidence of (PW 6) is discarded, the whole prosecution story crumbles down like a house of cards. Per contra Shri Salim, appearing for the State, submitted that though the State may not have preferred an appeal against the acquittal for an offence punishable under S. 376 IPC but from the evidence available on the record it is clear that an offence punishable under S. 354 IPC is definitely made out and the trial Court rightly convicted the appellant for having committed that offence. Shri Salim submits that prosecutrix is an innocent child of tender age and specially when it is not disputed that the appellant was working in the shop of father of prosecutrix and was familiar with the prosecutrix, he abused the confidence and the trust of the family by taking undue advantage of his familiarity. Shri Salim further submits that no interference is warranted with the conviction and sentence of the appellant. Shri Salim further submits that no interference is warranted with the conviction and sentence of the appellant. I have heard the learned counsel for the parties at length and perused the record. From the evidence on record it is dear that appellant is well known to the prosecutrix. He took advantage of her innocence and tender age and tried to satisfy his Just. From the medical evidence it is established that prosecutrix had swelling on her private part. Unfortunately, despite dear opinion of the lady Dr. Sharma, PW 10, investigating officer failed to get the prosecutrix examined by a gynecologist to prove whether appellant sexually assaulted the prosecutrix. In absence of such evidence, trial had no option but acquit the appellant from the charge of the said offence. In opinion of this Court, the testimony of (PW-6) is duly corroborated by other evidence that appellant is guilty of the offence punishable under section 354 of the IPC. No child of 3 years can be tutored to describe the details in graphic manner as was done in this case by (PW 6) unless she actually suffered entire sequences of events. In the opinion of this Court evidence of (PW 6) by itself is sufficient to hold the appellant guilty of offence punishable under section 354 of the IPC. Learned trial Court has rightly convicted the appellant for an offence punishable under S. 354 IPC. Since the State has again chosen not to file any appeal for enhancement of sentence, I maintain the conviction and sentence of the appellant as awarded by the trial Court and found no substance or merit in the appeal. The appeal is accordingly dismissed. The appellant has remained on bail during the pendency of the appeal, therefore, his bail bonds are cancelled and the appellant is directed to surrender before the CJM Ratlam on or before 20.5.2003, failing which, concerned CJM shall take all necessary steps to secure the presence of appellant to carry out custodial sentence awarded to the appellant by the trial Court. Office is directed to remit the record of the trial Court forthwith. In case the appellant fails to appear before the CJM, Ratlam on 20.5.2003 the concerned CJM shall issue a non-bailable warrant to secure the presence of the appellant and shall take proper steps for custodial sentence of the appellants.