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Madhya Pradesh High Court · body

2008 DIGILAW 390 (MP)

BABU @ BABARIYA v. STATE OF M. P.

2008-03-10

S.L.KOCHAR

body2008
Judgment S.L.Kochar, J. ( 1. ) The appellant has filed this appeal, challenging his conviction U/Ss.376, 506 - B of the IPC and sentence to undergo RI for 10 years with fine of Rs.3000/ - ; in default of payment of fine six months additional SI and one year RI with fine of Rs.500/ - , in default of payment of fine one month S.I, passed by learned Addl. Sessions Judge, Sardarpur in ST No. 40/2006, judgment dated 28/9/2006. However, the substantive sentences have been directed to run concurrently. ( 2. ) Briefly stated the prosecution case as unfolded before the trial Court is that on 12/10/2005 in the evening prosecutrix aged 11 years was returning back with her she - goats towards her house along with Radha (PW.2). When they reached near a culvert, the appellant reached there and driven her goats because of which prosecutrix also rushed behind her she - goats. The friend of prosecutrix Radhabai (PW.2) also followed her. Appellant with bad intention caught the hand of the prosecutrix and thrown her on the ground. He kissed her cheek and also pressed her breast, thereafter committed sexual intercourse twice in some interval. The prosecutrix raised cry upon which appellant threatened her to break out her teeth and also shown knife and threatened to kill her because of which she kept mum. The appellant, after committing bad act, fled away. Radhabai (PW.2) was also threatened by the appellant because of which she was standing at some distance. After the incident, both went to the house and prosecutrix disclosed about the incident to her mother and after arrival of her father also reported the matter to him. Because of night hours and non availability of transportation facility matter was reported on the next day i.e. 13/10/2005 at 10.05 a.m. The distance of the police station was five kilo meter. The police had registered the Crime No. 136/ 2005 U/S. 376 read with 506 - 11 of the IPC. Prosecutrix was medically examined by Dr. Anita Dahana (PW.7) who issued her MLC (Medical Legal Certificate) (Ex.P.7). Dr. Nitin Joshi (PW. 12) medically examined the appellant and found him fit for commission for sexual intercourse. His medical report is Ex.P. 12. Doctor also prepared slides of the semen vide Ex.P. 15. The seized articles were sent for chemical examination and report of the chemical examiner is Ex.P. 16. Dr. Nitin Joshi (PW. 12) medically examined the appellant and found him fit for commission for sexual intercourse. His medical report is Ex.P. 12. Doctor also prepared slides of the semen vide Ex.P. 15. The seized articles were sent for chemical examination and report of the chemical examiner is Ex.P. 16. On completion of investigation, appellant was charge sheeted for the above mentioned offences. ( 3. ) The appellant refuted the charges, therefore, put to trial. The learned trial Court, after examining the prosecution witnesses, recording of accused statement - and hearing both the parties, convicted the appellant as indicated herein above. ( 4. ) The learned counsel for appellant has submitted only argument that even if the complete prosecution case is accepted, offence at the most would fall Ml S.354 of the IPC, assault or criminal force to woman with intend to outrage her modesty. ( 5. ) On the other hand, the learned counsel for State has supported the impugned judgment and finding arrived at by the trial Court. ( 6. ) Having heard the learned counsel for parties and after perusing the entire record of the trial Court, this Court is of the opinion that offence against the appellant would be made out U/S.376 read with 511 of the IPC, attempt to commit rape. ( 7. ) There is no dispute that prosecutrix was a minor girl aged about 11 years. According to the statement of the prosecutrix, she was caught, thereafter thrown on the ground by the appellant and appellant committed sexual intercourse twice with her The incident was witnessed by eye witness Radhabai (PW.2), a minor girl aged nine years. She partially supported the prosecution case. According to this witness, appellant caught the prosecutrix and took her. She was threatened by the appellant for causing injury by knife, therefore, she did not follow him. After some time prosecutrix returned back. She was in deadly condition and also weeping. They went along with their goats and she - goats slowly towards their house. ( 8. ) The version of the prosecutrix is also corroborated by her father Kanji (PW.3) who was disclosed about the incident and name of the appellant by the prosecutrix. ( 9. ) Not only this, the version of the prosecutrix is also corroborated by Dr. Smt. Anita Dahana who medically examined her on 13/10/2005. ( 8. ) The version of the prosecutrix is also corroborated by her father Kanji (PW.3) who was disclosed about the incident and name of the appellant by the prosecutrix. ( 9. ) Not only this, the version of the prosecutrix is also corroborated by Dr. Smt. Anita Dahana who medically examined her on 13/10/2005. According to medical report, her age was between 10 - 11 years. There was no development of breast, axillary hairs were not present. Pubic hair were present slightly. She did not find any external injury on her person. On examination of private part, hymen membrane was not torned but there was redness and mark of rubbing were present below the hymen membrane as well as presence of pressure injury. In the opinion of this Doctor, the act of attempt to commit rape was committed with the prosecutrix and there was no full penetration. She proved her medical report (Ex.P.7). In cross examination, nothing substantial has come to discard the testimony of Dr. Anita. ( 10. ) In the FSL report, Article - A petticoat and Article - C pubic hair, were not containing semen and human spermatozoa. Both were present on underwear and slides of the semen of the appellant. It has come in the statement of the prosecutrix that at the time of commission of rape with her, her petticoat was kept beside the place of incident. Dr. Nitin Joshi (PW.12) proved the medical report (Ex. P. 12) of the appellant and also stated in Court that appellant was capable of performing sexual intercourse. He has also prepared slides of his semen. ( 11. ) In view of the statement of prosecutrix (PW.l), eye witness Radhabai (PW.2), statement of father Kanji (PW.3), medical evidence as mentioned herein above, this Court is of the view that appellant is liable for conviction for commission of attempt to commit rape with the prosecutrix punishable U/S.376 (f) read with 511 of the IPC, since the prosecutrix was under 12 years of age at the time of incident. Offence U/S.376(f) of the IPC shall be punished with minimum 10 years jail sentence but same may extend for life and fine is also prescribed and according to proviso, Court may for adequate and special reasons, may impose less than 10 year jail sentence. In the instant case, there are no special reasons. Offence U/S.376(f) of the IPC shall be punished with minimum 10 years jail sentence but same may extend for life and fine is also prescribed and according to proviso, Court may for adequate and special reasons, may impose less than 10 year jail sentence. In the instant case, there are no special reasons. Appellant was 30 years of age at the time of incident and must be a married person. Sentence for attempt to commit rape is prescribed U/S.511 of the IPC in Chapter XXIII of the IPC i.e. the offence is punishable with life imprisonment or imprisonment not exceeding half of the longest term provided for the offence or fine or both. For the offence attempt to commit rape (376 (f)) punishment extend for longest term of life imprisonment and half of this would be 10 years as per provision U/S.57 of the IPC regarding fractions of terms of punishment which says that in calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for 20 years. ( 12. ) In the result, appellant is acquitted from the charge of commission of rape with the prosecutrix, instead thereof he is convicted U/S.376(f) read with 511 of the IPC sentenced to RI for 10 years and fine of Rs.3,000/ - , in default of payment of fine he shall suffer additional RI for one year. His conviction and sentence U/S.506 - 11 of the IPC are hereby affirmed. Both the sentences shall run concurrently. Out of realisation of fine amount, Rs.3,000/ - be paid as compensation to the prosecutrix, the daughter of Kanji (PW.3) as per provision U/S.357, sub - section (1) of the Cr.P.C. Office is directed to send copy of this judgment along with the record to the trial Court. ( 13. ) The appeal fails and is accordingly dismissed on the terms indicated herein above. Appeal dismissed.