VIKRAM SINGH Vs. STATE OF M P

JUDGEMENT

(1.) In this criminal appeal under Section 374 of the Code of Criminal Procedure, 1973 the convict seeks to challenge the impugned judgment and order on sentence of the trial Court dated 18 th February, 1997 in Sessions Trial No.101/1996, whereby he has been convicted for the offence under Section 376 of IPC and has been sentenced to undergo rigorous imprisonment for 10 years.

(2.) Briefly stated the facts of the prosecution case against the appellant are that he was accused of committing rape with his own minor cousin sister then aged around 8 years in an incident that took place in his house in village Savasipura, District Rajgarh (Biora). The crime was reported to the police by the prosecutrix's brother (PW-1) Gajrajsingh on 11 th May, 1996. Ex.P/1 is the first information report. The prosecutrix was got medically examined and the appellant was also got medically examined for ascertaining his potency. Ex.P/4 is the medical report (MLC) of the prosecutrix and Ex.P/5 is the medical report (MLC) of the appellant. As per MLC of the prosecutrix (Ex.P/4), her hymen was found torn (old and healed) and it was observed that little finger could pass her vagina with difficulty. As per MLC of the appellant Ex.P/5, he was found capable of sexual intercourse. After completion of investigation, challan was filed against the appellant and he was charged under Section 376 of IPC for which he was tried and had faced trial. Total 11 witnesses were examined by the prosecution, out of whom (PW-1) Gajraj Singh (brother of the prosecutrix), (PW-2) prosecutrix, (PW-3) Daulibai (mother), (PW-4) Ramnarayan (father), (PW-6) Dr. Suhasini Sathe and (PW-7) Dr. Dinesh Gupta are the material witnesses of the prosecution.

(3.) The prosecutrix was a minor girl of around 8 years of age at the time she was allegedly raped by the appellant. She in her statement as PW-2 has given a narration as to how she was raped on the date of incident by the appellant who is her first cousin. The testimony of the prosecutrix is corroborated by the testimony of her brother and parents who were examined by the prosecution as PW1, PW-3 and PW-4. All three of them have testified that the prosecutrix came weeping to her house on the date of incident and had told them about the rape committed with her by the appellant. Testimony of all these witnesses is a part of res gestae and is admissible under Section 6 of the Evidence Act, 1872. PW-6 Dr. Suhasini Sathe has proved the MLC of the prosecutrix as Ex.P/4 and she in her statement has stated that at the time of medical examination of the prosecutrix she had found that secondary sexual characters were not developed and she also did not notice any pubic hair on her private part. PW-6 Dr. Suhasini Sathe also deposed that the hymen of the prosecutrix was found torn at the time of her medical examination but it was old and healed. This testimony of PW-6 Dr. Suhasini Sathe reflects upon the fact that the prosecutrix was a minor girl of less than 10 years of age at the time of crime and also the fact that sexual intercourse had taken place with her. The observation of Dr. Suhasini Sathe (PW-6) that hymen was old torn and healed appears to be on account of the fact that the medical examination of the prosecutrix was got done after 5 days of the incident and these 5 days were sufficient for healing up of the torn hymen. There does not appear to be any reason to disbelieve the testimony of the prosecutrix who was a child witness before the Court. This Court does not find any merit in the argument of counsel for the appellant that since there was delay of 5 days in lodging of the FIR, the conviction of the appellant needs to be set aside. The offence of rape against the appellant is proved by clinching evidence on record.