NITIN Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS appeal has been filed under Section 374(2) of the Cr.P.C. by appellant Nitin @ Ranu being aggrieved by judgment dated 26.04.2010 passed by Special Judge (Prevention of Atrocities) Act, Indore in Special Case No. 30/2008 convicting the accused for offence under Section 366 of the IPC and sentenced to undergo rigorous imprisonment for five years with fine of Rs. 1,000/ -, in case of failure to pay the fine he was to undergo an additional sentence of one month RI. He was also convicted for offence under Section 376(1) of the IPC and sentenced to undergo rigorous imprisonment for seven years with fine of Rs. 25,000/ -, in case of failure to pay the fine he was to undergo an additional sentence of six months RI.

(2.) He was also convicted for offence under Section 325 of the IPC and sentenced to undergo rigorous imprisonment for one year with fine of Rs. 1,000/ -, in case of failure to pay the fine he was to undergo an additional sentence of one month RI. Brief facts of the prosecution case are that the prosecutrix Asha (P.W.4) alleged to be 13 years old and resident of village Roshanai, P.S. Moghat, Distt. Khandwa was residing at Tilak Nagar Main Road near the house of Banaji Bale with her parents at the time of incident and was carrying out domestic work of cleaning the utensils and sweeping the houses of several people. On the date of the incident i.e., 18.03.2008 the prosecutrix after completing her work in the Patrakar Colony was returning home at 5 pm when she reached the main gate of the colony accused Ranu Yadav, resident of Tilak Nagar, rashly came upon by his motorcycle and brandishing his knife forcibly sat her on motorcycle and asked her not to shout and took her to the house No. 301, Swarna Plaza, Scheme No. 114 Part -2 Indore. There he gave her some water which was laced with some medicine and she fell unconscious. The accused raped her for 2 days continuously and the prosecutrix was later recovered on 20.03.2008 lying unconscious on the road and she stated that she did not know how she reached on the spot. Two police persons constable Asharam P.W.9 and constable Shailendra left her in her house by motor car. When she returned home she found that she had been physically abused. She had lost her teeth and she had pain in her body and she had received injuries. After meeting her parents she was taken to the Shakuntala hospital for treatment. She narrated the incident on 22.03.08 to her family members and mother Tarabai P.W.2. Her father Premkumar P.W.1 took her to the police station Palasia to file the FIR Ex.P/8. On recording the FIR she was sent for medical examination to M.Y. Hospital at Indore. Dr. Monika Verma P.W.5 examined her on 22.03.08 at 10.45 PM in the night and noted the injuries. On her report the offence was registered by Police Station Palasia, Indore vide Crime No. 321/08 and P.W.14 Imirin Shah Asst. Police Superintendent noted the incident and prepared the spot map by visiting the place at Scheme No. 114 and recovered the articles like bedding and the bed covers etc vide seizure memo Ex.P/4 and the accused was arrested. After completion of investigation the accused was duly charged and committed to his trial. The trial Court on considering the evidence acquitted the accused from offence under Section 363 of the IPC but convicted him for all the other offences as herein above indicated and hence the present appeal.

(3.) WHEREAS Anarbai P.W.10 the maternal aunt has categorically stated that she did not know the name of the accused Ranu Yadav and it was told to her by the prosecutrix. Whereas the prosecutrix has categorically stated that she did not know the accused and the name had been informed to her by Anarbai. Thus the identity of the accused has also not been established according to the provisions of law. Counsel stated that it was a case of clear acquittal and that it was now more than 4 and 1/2 years since the appellant was in custody and he prayed for setting aside the conviction. So also Counsel pointed out more importantly that the incident had occurred on 18.03.2008, the FIR has been lodged on 22.03.08 and the delay has not been explained. The prosecutrix has also on gaining consciousness at the time of recovery told the constable P.W.9 Asharam that she had been involved in an accident and that is why she was lying unconscious on the road. Moreover even if the prosecution allegations are considered, it was consistently and firmly established in the Trial Court that the prosecutrix was more than 18 years of age by the report of the radiologist Dr. Vinod Pillai P.W.8 and it was in this regard the Trial Court had acquitted the accused from offence under Section 363 of the IPC then the statement of the prosecutrix ought not to have been relied on by the trial Court and even according to the Dr. Monika Verma P.W.5 it appeared to be a case of consensual sex, then under these circumstances Counsel prayed that the conviction be set aside. In the alternate Counsel has also prayed that since the appellant has almost undergone 4 1/2 years of the custodial sentence the sentence may be reduced to the period already undergone. He relied on Raju v. State of Karnataka ( : 1994 CRI.L.J. 248), Devalla Raghavulu v. State of A.P. ( : 2005 CRI.L.J. 1041), Ranjeet Lohra v. The State of Bihar ( : 2002 CRI.L.J. 329) & Baida Ram and another Vs. State of Bihar ( : 2004 CRI.L.J. 1923) to bolster his submissions.