NEHRU ALIAS JAWAHAR Vs. STATE OF CHHATISGARH

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of a learned Single Judge of the Madhya Pradesh High Court upholding the conviction of the appellant for offence punishable under Section 376 of the Indian Penal Code, 1860 (in short the 'IPC'). But the sentence of seven years as was imposed by the trial court i.e. the Court of Session Judge, Rajnandgaon was reduced to five years and fine of Rs.20,000/- was imposed under Section 357(1) of the Code of Criminal Procedure, 1973 (in short the 'Cr.P.C.'). It was held that in case the fine is not paid within the stipulated time, custodial sentence of seven years as imposed by the trial court shall be maintained.

(2.) According to prosecution in the morning of 10th June, 1988 the accused had taken the advantage of the helplessness of the victim and committed rape on her. First Information Report was lodged around 11 a.m., and she was sent for medical examination. The accused after his arrest on 12th June, 1988 was sent for medical examination. Certain articles were also sent for chemical examination. After completion of the investigation, charge sheet was filed and the accused pleaded innocence and false implication. The prosecution in order to establish the accusations examined several witnesses including the prosecutrix who was examined PW2 and the doctor, who examined PW 7. The investigating officer was examined as PW 9. PW 8 was the sub-inspector posted in the Rajnandgaon police station. Before the trial court the prosecutrix stated the age of the victim to be 14 years. Since the accused was taking the plea of consent, the prosecution rely on clause six of Section 375, I.P.C. to contend that consent was of no consequence as she was below 16 years of age. In any event, there was no evidence of any consent. The trial court found the age of the victim to be around 16 years. But it came to the conclusion that there was no consent as claimed by the accused. Accordingly the conviction was recorded and the sentence of seven years imprisonment was imposed alongwith fine of Rs. 100/-. As noted above the High Court in the appeal filed by the appellant maintained the conviction and sentence of five years and enhanced the fine to Rs.20,000/-. It was indicated that in case the fine was paid the same was to be given to the victim and in case it was not paid, the sentence imposed by the trial court was to be maintained.

(3.) In support of the appeal learned counsel for the appellant submitted that there are certain suspicious circumstances; firstly admittedly the FIR was lodged at 11 p.m. but strangely the doctor claimed that she examined the victim at 9.15 a.m. Secondly the victim in her cross examination had clearly stated that her consent was there.