MAHENDRA Vs. STATE OF U P

JUDGEMENT

(1.) THIS appeal is directed against a judgment and order dated 29-7-1985, passed by Additional Sessions Judge, Ghaziabad, convicting and sentencing appellant Mahendra Kumar son of Tirkha, resident of Vijai Nagar, district Ghaziabad, to five years' rigorous imprisonment under Section 376 IPC and to two years' rigorous imprisonment under Section 450 IPC.

(2.) ACCORDING to the prosecution Pusa and his blind son Dharampal were sleeping on the ground floor of their house Km.Sunita, aged about seven years, daughter of Dharampal, was sleeping on the roof of the house when at 11.30 a.m she cried a loud attracting Pusa, Than Singh, Dalchand and others. Appellant Mahendra Kumar is a close neigh hour. As they rushed to the roof of the house, they found that appellant Mahendra Kumar was committing rape on Km. Sunita who was trving to free herself. The appellant was arrested on the spot. Km Sunita was profusely bleeding. With the arrested appellant and Km. Sunita, Pusa rushed to police station Vijai Nagar to lodge a report. Ex Ka 2 is the written report lodged at 12.45 noon. Dr. Km Vishva Gupta examined Km. Sunita who was brought by a constable from police station Vijai Nagar at 12.45 p.m. She found that there was a lacerated wound at the perineum extending from the posterior fourchette to anterior margin of anus. The wound was stitched to control the bleeding. After X-ray, the age of the girl was found to be nine years. The vaginal smear report showed no evidence of sperms and the Doctor could not give a definite opinion about commission of rape. Mahendra Kumar appellant was also examined on 18-5-1984 at 1.45 p.m. and no definite opinion was given about commission of the offence. Alter completing the investigation, a charge-sheet was submitted against the appellant leading to bis trial.

(3.) AS regards the sentence, the Additional Sessions Judge has been harsh. It is proved from the evidence on record that the appellant was aged about 15 years at the time of the occurrence. The Additional Sessions Judge has also found that the age of the appellant was about 15 years when the report was lodged against him. His medical examination also supports this finding The age of the appellant being about 15 years, he is covered by U. P. Children Act, 1951. Section 27 of this Act provides : S. 27. Sentences that may not be passed on child. Notwithstanding anything to the contrary contained in any law, no Court shall sentence a child to death or transportation or imprisonment for any term or commit him to prison in default of payment of fine :