ABDUL SALAM Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) Sessions Judge, Rewa in S. T. No. 185/89 vide impugned judgment dated 17-7-91 recording conviction of appellant under Section 376 of the I.P.C. sentenced him to undergo R.I. for a. period of 5 years. Being aggrieved, appellant has preferred this appeal under Section 374(2), Cr.P.C.

(2.) Prosecutrix (PW/2) per post sent a letter dated 14-4-89 (Ex. P/l) to the Police stating inter alia that while she was working at the residence of Abdullah (PW/3) she came in contact with the appellant and remained indulged in sexual intercourse since February 1988. As a result in the month of November-December she conceived a pregnancy. Appellant developed intimacy on assurance of marriage, however, the pregnancy being disclosed appellant suggested for an abortion. Prosecutrix (PW/2) declined to abort and a week before 20-5-89 delivered a female child. On the basis of letter (Ex. P/l) the police on its own recorded FIR (Ex. P/E) on 19-5-89 and sent the prosecutrix (PW/ 2) for medical examination. Dr. Smt. S.B, Nema (PW/9) on examination found the prosecutrix (PW/2) being habitual of sexual intercourse. Accordingly report (Ex. P/4) was recorded and the prosecutrix (PW/2) was referred to ossification test for confirmation of age. Dr. S.K. Pathak (PW/7) on the basis of X-ray examination recorded report (Ex. P/3) to the effect that prosecutrix was aged about 18 years. Completing the investigation appellant was charge-sheeted. Appellant abjured the guilt and contended that Abdullah (PW/3) himself is a man of doubtful character. On account of enmity Abdullah (PW3) had instigated the prosecutrix (PW/2) to falsely allege that she was conceived as a result of sexual intercourse by the appellant. The Court below relying upon the state- ment of prosecutrix (PW/2) held that appellant allured her with a promise to marry as such she submitted herself to the act of sexual intercourse. As a result she conceived the pregnancy and on being asked to marry appellant resiled from the promise. On facts and in the circumstance the Court below in ST No. 185/89 vide impugned judgment recording conviction of appellant under Section 376 of the IPC sentenced him to undergo RI for the period said above.

(3.) Prosecutrix PW/2 states that she was aged about 15 years at the time when she indulged into sexual relationship with the appellant. Her father Rajjab Khan PW/4 has stated herself to be aged about 14 years. However, there is nothing In the statement of (PW/1) Kuttan, the mother to state the age of her daughter the prosecutrix (PW/2). Abdullah PW/3, Rajjab Khan PW/4 in their statements (Ex. P/l and D/2) before the Police have stated that the prosecutrix (PW/ 2) on the date of incident was aged about 17 years. PW/9 Dr. Smt. S.B. Nema has stated that as per physical appearance the age of the prosexutrix (PW/2) was 17 years. However, for confirmation of age she was referred to ossification test. PW/7 Dr. S.K. Pathak has stated that X-rays of forearm-wrist and iliac crest of the prosecutrix (PW/2) have been taken. On the basis of examination of X-rays aforesaid she was found to be aged about 18 years. PW/7 Dr. S.K. Pathak has categorically stated that there may be further difference of two years on either side. Taking evidence on record it has been proved that In the month of February-1988 the prosecutrix was in fact aged about 18 years.