KHUBA Vs. STATE OF MP.

JUDGEMENT

(1.) THE appellant/accused has filed the appeal under section 374 of the Code of Criminal Procedure against the judgment and order dated 28.6.2000 in Sessions Trial No. 324/1999 passed by learned Third Additional Sessions Judge, Ujjain, of his conviction and sentence under section 376 sub-section (2) (f) of the IPC for the rigorous imprisonment of 10 years and fine of Rs. 1,000/- and in default of payment of fine, further simple imprisonment for the period of 4 months. The prosecution case is that on 9.9.1999 at about 12.00 a.m. in the Village Kalukhedi when prosecutrix Maya (PW 2) aged about 11 years was in her house, the accused came to her house and took her on the pretext that he will provide her food in his house. That Maya (PW 2) along with Dharmendra aged 5 years were taken by the accused on the well of the Sarpanch and she was asked to take out underwear and thereafter the accused has comitted sexual intercourse with her. That the accused threatened her that in case the incident was informed by her to her parents, the knife will be thrust in her body. That in the night, father of the prosecutrix came to the house and the incident was disclosed by her to her parents and the FIR (Ex. P/2) was recorded on 10.9.1999 at Police Station Ghatia.

(2.) THE prosecutrix Maya was medically examined by Dr. Achala Maharaja (PW 5) and it was found that she was having the injury on her private part. The school register of the prosecutrix, was seized and Dr. A.K. Pal (PW 8) has taken the X-ray of the prosecutrix and in his ossification report (Ex. P/14) he has opined that the age of Maya was more than 8 years and less than 13 years. After the investigation, the charge- sheet was filed before the Judicial Magistrate, First Class on 17.11.1999. The appellant accused has abjured the guilt and he has denied the statements of the prosecution witnesses and pleaded false implication due to the enmity. The learned trial Court after examining 8 prosecution witnesses and 4 witnesses in defence has held that the age of the prosecutrix was below 12 years and sexual intercourse was committed with her and as such appellant accused was convicted and sentenced as stated above. The learned counsel for the appellant has alleged that the learned trial Court has erred in holding that the age of the prosecutrix was below 12 years. The Court has also erred in holding that the accused has committed sexual intercourse with her and as such the appellant accused should be acquitted. It is also submitted that the appellant accused is a young boy of 20 years and sentence of 10 years is harsh and disproportionate and it should be reduced.

(3.) THE learned counsel for the defence has failed to point out any infirmity in the statement of prosecutrix Maya (PW 2) to create doubt in the veracity of the statement. Consequently, the statements of prosecutrix Maya (PW 2) are blameless and trustworthy and in view of the corroboration of her statement from prompt FIR and medical examination, it is proved beyond reasonable doubt that the accused has committed rape with Maya (PW 2). The learned trial Court has rightly held the accused guilt for the offence of rape of Maya punishable under section 376 of the IPC.