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Madhya Pradesh High Court · body

2005 DIGILAW 230 (MP)

Khuba v. State of M. P.

2005-02-11

A.K.AWASTHY

body2005
JUDGMENT The appellant/accused has filed the appeal under section 374 of the Cock of Criminal Procedure against the judgment and order dated 28.6.2000 in Sessions Trial No. 324/1999 passed by learned Third Additional Sessions Judge, Ujjain, of his conviction and sentence under Section 376 sub-section (2)(f) of the IPC for the rigorous imprisonment of 10 years and fine of Rs. 1.000/- and in default of payment of tine further simple imprisonment for the period of 4 months. The prosecution case is that on 9.9.1999 at about 12.00 a.m. in the village Kalukhedi when prosecutrix Maya (PW 2) aged about 11 years was In her house the accused came to her house and took her on the pretext that he will provide her food in his house. That Maya (PW 2) along with Dharmendra aged 5 years were taken by the accused on the well of the Sarpanch and she was asked to take out underwear and thereafter the accused has committed sexual intercourse with her. That the accused threatened her that in case the incident was informed by her to her parents the knife will be thrust in her body. That in the night father of the prosecutrix came to the house and the incident was disclosed by her to her parents and the FIR (Ex. PC) was recorded on 10.9.1999 at Police Station Ghatia. The prosecutrix Maya was medically examined by Dr. Achala Maharaja (PW 5) and it was found that she was having the injury on her private part. The school register of the prosecutrix was seized and Dr. A.K. Pal (PW 8) has taken the X-ray of the prosecutrix and in his ossification report (Ex. P/14) he has opined that the age of Maya was more than 8 years and less than 13 years. After the investigation, the chargesheet was filed before the Judicial Magistrate, First Class on 17.11.1999. The appellant accused has abjured the guilt and he has denied the statements of the prosecution witnesses and pleaded false implication due to the enmity. The learned trial Court after examining 8 prosecution witnesses and 4 witnesses in defence has held that the age of the prosecutrix was below 12 years and sexual intercourse was committed with her and as such appellant accused was convicted and sentenced as stated above. The learned trial Court after examining 8 prosecution witnesses and 4 witnesses in defence has held that the age of the prosecutrix was below 12 years and sexual intercourse was committed with her and as such appellant accused was convicted and sentenced as stated above. The learned counsel for the appellant has alleged that the learned trial Court has erred in holding that the age of the prosecutrix was below 12 years. The Court has also erred in holding that the accused has committed sexual intercourse with her and as such the appellant accused should be acquitted. It is also submitted that the appellant accused is a young boy of 20 years and sentence of 10 years is harsh and disproportionate and it should be reduced. Prosecutrix Maya (PW 2) has stated that her age at the time of incident was 8 years. Govind (PW 3), who is Assistant Teacher in Primary School, Kalukhedi, has produced the admission register of prosecutrix Maya and in the copy of the admission register (Ex. P/3) the date of birth of the prosecutrix is mentioned 8.7.1986. Suganbai (PW 4), who is the mother of the prosecutrix, has stated' that the age of prosecutrix Maya was 10 years. After the ossification test, Dr. A.K. Pal (PW 8) has given the report (Ex. P/14) and opined that the age of the prosecutrix was more than 8 years and below 13 years. In view of the school certificate (Ex. P/3), in which the date of birth is mentioned 8.7.1986, it is held that the age of the prosecutrix on the date of incident i.e. 9.9.1999 was not-below 12 years and prosecution has failed to prove by cogent evidence that the age of the prosecutrix at the time of offence was below 12 years. Her age was between 12 to 13 years at the time of the incident. No doubt sexual offence is dehumanizing act and it is unlawful encroachment into right to privacy and sanctity to the women. It is observed in case of Vimal Suresh Kamble v. Chaluverapinake Apal S.P. AIR 2003 SC 818 = 2003 Cri.LJ 910 it is true that the conviction of an accused on the basis of the testimony of the prosecutrix alone is permissible, but that is in a case where the evidence of the prosecutrix inspires confidence and appears to be natural and truthful. Maya (PW 2) has stated that the accused took her from her house in the field of Sarpanch and there the accused took out her undergarments and committed the sexual intercourse with her. Dr. Achala Maharaja (PW 5) has examined the prosecutrix on the next day i.e. 10.9.1999 and she has found that the blood was oozing from her private part and the hymen was found damaged. Dr. Achala Maharaja (PW 5) has stated that the prosecutrix was not habitual of sexual intercourse and in view of ruptured hymen, she was raped. The prosecutrix has no reason to falsely implicate the accused. The FIR (Ex. P/2) was lodged without any delay and there is not a single contradiction in the statement of the prosecutrix and in the story narrated by her in FIR (Ex. P/2). In such prompt FIR there is hardly any chance of concoction the false case. The learned counsel for the defence has failed to point out any infirmity in the statement of prosecutrix Maya (PW 2) to create doubt in the veracity of the statement. Consequently, the statements of prosecutrix Maya (PW 2) are blameless and trustworthy and in view of the corroboration of her' statement from prompt FIR and medical examination, it is proved beyond reasonable doubt that the accused has committed rape with Maya (PW 2). The learned trial Court has rightly held the accused guilt for the offence of rape of Maya punishable under section 376 of the IPC. The accused is a young boy of 20 years and he is the first offender and as such the sentence of 10 years is harsh and 'it should be reduced. The age of the prosecutrix is not proved less than 12 years. Consequently the minimum sentence prescribed under section 376 of the IPC of 7 years will be sufficient and it will meet the ends of justice. The sentence of 10 years is reduced to only 7 years. Consequently; the appeal is allowed only on the point of sentence and sentence of RI for 10 years is reduced to only RI for 7 (seven) years. The fine of Rs. 1,000/- is hereby maintained. The appellant accused is convicted under section 376 of the IPC and sentenced to undergo RI for 7 years and fine of Rs. 1,000/- and in default of payment of fine, further SI for 4 months. The fine of Rs. 1,000/- is hereby maintained. The appellant accused is convicted under section 376 of the IPC and sentenced to undergo RI for 7 years and fine of Rs. 1,000/- and in default of payment of fine, further SI for 4 months. The period of detention of the appellant in custody be remitted in his sentence.