DAKALU Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) Fir (Ex. P-2) lodged by the minor prosecutrix (PW-2) on 28/8/1995 alleges that in the noon time on 24/8/1995 when she was taking rest in her house after taking lunch, the accused/appellant who was residing in the neighborhood had come there by jumping over the boundary wall and insisted for sexual intercourse. When the prosecutrix did not fall prey to the say of the accused/appellant, he took out the knife and putting her under the threat of life gagged her mouth with the piece of cloth, threw her down and committed forcible sexual intercourse with her. According to the prosecutrix, at the relevant time she was all alone in her house. Out of fear she did not disclosed the incident to her parents for about 3 days and it is when her mother asked the reason of her sadness, she narrated the act of the accused/appellant to her who in turn informed the same to her husband (the father of the prosecutrix). Thereafter, on the basis of the said report, an offence under Sec. 376 IPC was registered against the accused/appellant, prosecutrix was got medically examined and after completion of investigation charge-sheet was filed against him under the said sec. followed by framing of charge accordingly. Medical examination report of the prosecutrix is Ex. P-4 and that of the radiologist is Ex. P-13. Class 4 mark-sheet of the prosecutrix was also seized under Ex. P-15 which mentions her date of birth as 3/6/1981.

(2.) On the basis of material produced by the prosecution including the evidence of the witnesses so examined, learned Court below vide judgment impugned dtd. 31/8/1999 passed in Sessions Trial No. 02/96 held the accused/appellant guilty under Sec. 376 IPC and imposed the sentence of 10 years RI coupled with 1000/- as fine, plus default stipulation.

(3.) Counsel for the accused/appellant submits that though the prosecution has not been able to prove that on the date of incident the prosecutrix was below 16 years of age, yet the accused/appellant has been convicted under Sec. 376 IPC which is bad in law. He further submits that if overall conduct of the prosecutrix is seen where she chose to remains silent for 3-4 days and did not inform the incident even to her parents itself makes it clear that she was consenting party. He further submits that even the medical evidence does not lay support to the case of the prosecution. Even the four days delay in lodgment of the report has not been satisfactorily explained by the prosecution.