SUKHDEO Vs. STATE OF M P

JUDGEMENT

(1.) THE appellant/accused has preferred this appeal being aggrieved by the judgment dated 19.9.1996 passed by IInd Additional Sessions Judge, Katni in Sessions Trial No.380/92, convicting him under Section 376 of I.P.C. for RI seven years with fine of Rs. 1000/- and in default of depositing the same, further six months RI has been awarded.

(2.) THE facts giving rise to this appeal in short are that, on dated 15.3. 1992, at about 11.30, the prosecutrix Rubban Bhumia (PW-1) D/o Girwar Singh, aged about 15 years, lodged the First Information Report at Police out-post Salaiya, Police Station Rithi, District Katni, contending that she along with her younger sister residing with the parents at village Chargawan. Her father being Railway employee is working at Sagar, while she along with her mother is cultivating their agricultural field of the village. Before one year, she alone went to the field in connection of harvesting the crop where the appellant came and asked her to perform the intercourse with her. She refused, on which, by giving the criminal threat to burry her in the field, after throwing her on the floor, committed bad act on her. Due to fear of the life from the appellant, she did not narrate such incident to anyone. Subsequent to this in next for 5- 6 days, whenever she went to the field, on seeing her alone there, the appellant repeated such act on such occasions. Besides this, whenever she visited the Forest for bringing the firewood, there also on various occasions under criminal threat, appellant committed such act with her. But due to fear of the appellant such incident was also not mentioned to anyone. On some occasion, appellant told her that if anything is happened with her then, he will make arrangement for her treatment or, in any case, he will keep her as his wife. The appellant was used to say her that if his aforesaid act is stated by her to anyone then, he will kill her. On a day the mother of the posecutrix after seeing her pregnant asked the name of person from whom she became pregnant ? On which, she apprised her mother with the entire act of the appellant. Thereafter, she accompanied with her father came to Police out-post and lodged the aforesaid report. After registering the offence of Section 376 of IPC against the appellant, she was sent to hospital where after medical examination her M.L.C. report was prepared and to ascertain her age, the Ossification test was also carried out, in which her age was found between 15-17 years. On completion of the investigation, the appellant was charge-sheeted for the abovementioned offence.

(3.) ON the other hand, responding the aforesaid arguments Shri Rakesh Kesherwani, learned Panel Lawyer by justifying the impugned conviction and sentence of the appellant said that such approach of the trial Court being based on proper appreciation of the evidence, do not require any interference at this stage either for holding the age of the prosecutrix below 16 years or to hold that it was a case of consent. In continuation he said that, looking to the testimony of the prosecutrix even on holding her age more than 16 years, the impugned case could not be treated to be a case of consent because under the assurance of the marriage, the alleged act were committed by the appellant with her, so, in such premises, the impugned appeal being devoid of any merit, deserves to be dismissed and prayed for the same.