KAPTAN SINGH Vs. STATE OF M P

JUDGEMENT

(1.) THIS appeal is directed by the appellant against the judgment of conviction and sentence dated 2. 3. 2002 passed by VI Additional Sessions judge, Gwalior (M. P.) in Sessions Trial No. 243/2001, whereby the appellant has been convicted under Section 366 of IPC and sentenced to undergo rigorous imprisonment for five years with a fine of Rs. 2,000 and under Section 376 of IPC, sentenced to undergo rigorous imprisonment for seven years with a fine of Rs. 3,000 with default stipulations.

(2.) ACCORDING to the prosecution, the facts of the case are that a report Ex. P1 was lodged by the complainant Ramkali (PW1), mother of the prosecutrix (PW2) at police station Padav that after taking food at about 9 in the night while she got slept her daughter was reading near her. When she woke up in the night she found that her daughter was not in the house. She enquired from lakhan, Ramesh and. Deepak, who were, also residing in the same locality. When she was searching her daughter, her daughter came out from the house of the appellant. On seeing her by the locality, her daughter disclosed that the appellant had assured to marry her and on this pretext gave a Pudia for mixing in the food for which her mother got slept and she was taken by the appellant to his house and committed sexual intercourse with her. After lodging the report, she was sent for medical examination. After completion of investigation, challan was filed before the Court from where the case was committed to the Court of Session. The learned Sessions Court acquitted the appellant of the charge under Section 363 of IPC but convicted under Sections 366 and 376 of IPC and sentenced him accordingly as stated above.

(3.) DURING the course of arguments, counsel for the appellant challenged the conviction on the ground that the incident took place in the intervening night of. 12-13 april, 2001 at about 9. 00 p. m.-3 a. m. but the report was lodged at 13. 4. 2001 at about 1. 45 p. m. The distance of the police station from the place of occurrence is only 1 kilometer. The relatives of the complainant was present in the house. Therefore, the explanation given by the complainant is not satisfactory. Further, regarding the age of the prosecutrix no documentary evidence has been adduced by the prosecution. As per first Information Report, the age of the prosecutrix was shown to be 14 years but in ossification test, her age was found above 16 and below 19 years. The report is Ex. P. 3. Therefore, it is not conclusively established that the age of the prosecutrix is below 18 years on the date of occurrence. Further, it is also submitted that the way the incident took place; the prosecutrix went to the house of the appellant who was also residing in the same locality and they know to each other, it appears that she was a consenting party. Therefore, the learned trial Court has committed an error in convicting the appellant under Section 366 and 376 of IPC.