AMBARAM Vs. STATE OF M P

JUDGEMENT

(1.) This appeal is preferred by the appellant/accused under Section 374 of the Cr.P.C being aggrieved by the judgment dated 16.8.96 passed by Addl. Sessions Judge and Special Judge (constituted under the Schedule Caste and Schedule Tribe Prevention of Atrocities Act 1989 in short 'the Act'), Mandleshwar in S.T.No.5/96 convicting and sentencing the appellant for the offence under section 376 read with section 511 of the IPC with a direction to undergo for RI 5 years.

(2.) The facts giving rise to this appeal in short are that on dated 1.10.95 at about 10 O' Clock the prosecutrix Ku Rekha lodged the FIR at Police Station Karhi district Khargone contending that on 30.9.95 , she went to Bavari Forest of village Wani to get her cattle graze. Nani daughter of Bhagirathi and Chhitar s/o Nani also went there along with their cattle for the same purpose. At about 6 O' clock in the evening, the appellant Ambaram met her in such forest. He caught hold and threw her on the ground, on which, she tried to shout but the accused closed her mouth by his palm saying that if she will shout, he will kill her. Thereafter, he removed her Ghagra ( lower garment) and after removing his own trouser entered his penis into her vagina contrary to her wish. After committing such act, he asked not to tell this incident to anyone otherwise he will kill her. She cried and also narrated the incident to the aforesaid Nani and Chhitar. On returning to home, she narrated the incident to Sarni Bai, her mother and Chhagan, her father. Due to fear, the report was not lodged on the date of the incident and the same was lodged on the next morning. On the basis of aforesaid fact, the offence of section 376,323 of the IPC and section 3(i)(xi) of the Act was registered against the appellant. The prosecutrix was sent to hospital where her MLC report was prepared in which, her age 11 years was mentioned by the concerning doctor, as was mentioned in the FIR. In subsequent investigation, the clothes of the prosecutrix were seized. The slides prepared by the doctor was seized. The appellant was also medically examined by the doctor. His clothes and concerning slides prepared by the doctor were sent to FSL. The interrogatory statements of the witnesses were recorded. In the ossification test of the prosecutrix, her age was found to be below 16 years. On completion of the investigation, the appellant was charge sheeted for the above mentioned offence.

(3.) After committing the case to the Sessions Court, on evaluation of the charge sheet, the charge of section 376 of the IPC and section 3(1)(xi) of the Act was framed against the appellant. He abjured the guilt, on which, the trial was held. On appreciation, after holding guilty to the appellant under section 376 read with section 511 of the IPC, he was punished with the sentence as mentioned above while he was acquitted from the charge of section 3(1)(xi) of the Act. The age of the prosecutrix was held in between 11 to 12 years. Being aggrieved by the aforesaid conviction and sentence, the appellant has come to this court with this appeal.