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2015 DIGILAW 795 (MP)

State of M. P. v. Rakesh Choudhari

2015-08-04

G.S.SOLANKI, SHANTANU KEMKAR

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JUDGMENT Solanki, J. -- 1. This petition registered under suo motu revisional jurisdiction of High Court, arose out of Judgment dated 30.10.1999 passed by the learned VII Additional Sessions Judge, Jabalpur, District Jabalpur in S.T. No.368/1998 whereby respondent has been convicted under sections 366A and 376/511 of the IPC and sentenced to undergo RI for 4 years and fine of Rs.1,000/- and RI for 5 years and fine of Rs. 1000/-, with default stipulations. 2. Facts, in short, giving rise to this petition are that on 22.5.1998 at 3-4 noon respondent had took away minor prosecutrix on a bicycle and thereafter attempted to commit rape on her. Bernard (PW7), mother of the prosecutrix, has lodged the report Ex.P-8 at Police Station Ranjhi, Jabalpur. Minor prosecutrix was sent for medical examination. Dr. Smt. Pushpa Pandey (PW3) and Dr. Reeta Shukla (PW5) examined her and opined that someone has molested her. After investigation, accused/respondent was arrested. He was medically examined by Dr. P.K. Sharma (PW4) and found competent to perform intercourse. 3. After due investigation, the accused/respondent has been charge sheeted under sections 366A and 376/511 of IPC. 4. On trial, trial Judge had convicted the applicant for the aforesaid offences and awarded sentence as mentioned hereinabove. 5. During hearing of appeal against conviction, this Court has suo motu directed to register this revision petition. Hence this petition. 6. Learned counsel appearing on behalf of the applicant/State submitted that trial Court committed illegality in recording punishment in lesser offence under section 376 read with section 511 of IPC against the respondent. He further submitted that respondent had committed the offence under section 376(2)(f) of IPC, therefore, prays for awarding adequate punishment to the respondent. 7. On the other hand, learned counsel appearing on behalf of the respondent submitted that respondent was prosecuted under sections 366A and 376/511 of IPC and was tried for the aforesaid offence and the trial Court has rightly convicted the respondent for the aforesaid offence. He further submitted that respondent has already suffered the jail sentence awarded to him, therefore, prays for dismissal of this revision petition. 8. We have heard the learned counsel for the parties, perused the impugned judgment along with the evidence recorded by the trial Court. 9. He further submitted that respondent has already suffered the jail sentence awarded to him, therefore, prays for dismissal of this revision petition. 8. We have heard the learned counsel for the parties, perused the impugned judgment along with the evidence recorded by the trial Court. 9. It is admitted on record that respondent was prosecuted under sections 366A and 376/511 of IPC and after trial he was convicted for the aforesaid offence and has already suffered the jail sentence awarded to him by the trial Court. Further prosecutrix, being a minor, has not been examined before the trial Court. As per prosecution, minor prosecutrix has narrated the story of incident to her mother Bernard (PW7), but her mother Bernard (PW7) herself has not supported the prosecution case and categorically stated that her daughter had not told her in regard to the fact that someone has committed wrong with her. Though George Johns (PW1), uncle of the prosecutrix, tried to state in his examination-in-chief that his niece (minor prosecutrix) has told her mother Bernard (PW7) that applicant has outraged her modesty and done something but this fact does not find place in his police statement Ex.D-1 recorded under section 161 of CrPC and mother Bernard (PW7) has not supported him hence, it appears that George Johns (PW1) has made material improvement in his statement before the trial Court. The same is not believable. 10. On scanning the aforesaid evidence on record, we are of the view that there is no substantive evidence on record in regard to the fact that applicant had committed rape on the prosecutrix. Further it is not supported by the medical evidence because Dr. Reeta Shukla (PW5) categorically stated that prosecutrix was only molested. In these circumstances, trial Court had rightly come to the conclusion that applicant has only attempted to commit rape on prosecutrix. Thus, trial Court has not committed any illegality in recording conviction under sections 366A and 376/511 of IPC. No case is made out for interference in regard to conviction and sentence recorded by the trial Court. 11. The revision petition is liable to dismiss and is hereby dismissed. .......................