MAHENDER KUMAR Vs. STATE

JUDGEMENT

(1.) The appellant by the impugned judgment dated 22nd January, 2008 was convicted under Section 376/511 of the Indian Penal Code, 1860 (IPC for short) and by the order of sentence dated 24th January, 2008 was sentenced to undergo rigorous imprisonment for a period of five years and fine of Rs.5,000/-. In default of payment of fine, the appellant was to undergo a simple imprisonment for a period of three months. The appellant was given benefit of Section 428 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code, for short).

(2.) Learned counsel appearing for the appellant submitted that there are contradictions between the statement of the prosecutrix recorded under Section 164 of the Code dated 7th March, 2006 Exhibit PW-1/A and the statement of the prosecutrix before the trial court. She submits that the appellant had called the police and, therefore, the prosecution story deserves to be rejected. She states that the FIR was registered after a delay of few hours and submits that the mother of the prosecutrix in her statement under Section 161 of the Code, Exhibit PW-2/A, had only alleged that the appellant had given beating to her daughter and no allegation of sexual assault, etc. was made.

(3.) The prosecutrix was examined as PW-1. She was aged about 7/8 years at the time of the offence. Learned Additional Sessions Judge took due precautions and care to make her at ease before recording her testimony and in ensuring that she was not under any influence or tutored. The prosecutrix was asked simple and relevant questions by the court but was cross examined. She recognized the appellant, who was present in the court and stated that the appellant on the concerned date had given money to other children, who were playing there and had sent them to market to buy toffees, etc. He caught hold of the hand of the prosecutrix and told her that when he signals, the prosecutrix should come to him and he would give her money to buy toffees, chocolates etc. The appellant dragged her inside his room and switched off the lights and closed the door. She was made to lie on the cot. The appellant took off his clothes including his underwear and then he took off her frock and her underwear. The appellant warned the prosecutrix not to tell this to anyone, or else her mother would beat him up and in turn he would beat up the prosecutrix. She has stated that the appellant put his finger inside her from where she urinates. She felt pain and cried out loudly. The appellant put his hand on her mouth, but in the meanwhile, on hearing noise, the children who were outside came and started knocking at the door. The appellant opened the door after wearing his clothes and also made the prosecutrix to wear her clothes. This took time. By this time two-three women had also gathered. Before opening the door the appellant gave a Rupee note to the prosecutrix. The prosecutrix went to her room and started crying. When her elder brother Suraj came to know about the said incident, he gave a beating to the accused. At that time, the mother of the prosecutrix was not in the house and as she had gone to work. The mother of the prosecutrix was informed by Suraj and she came back. The mother also gave beating to the accused. The prosecutrix become unconscious was taken to the hospital and was medically examined.