SUKHRAM Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This criminal appeal has been filed under Section 374 of the Cr.P.C. against the judgment dated 22.12.2009 passed by Sessions Judge, Sagar in Sessions Trial No.402/2009, whereby the learned Sessions Judge found appellant guilty for the offences punishable under Sections 376 (2)(f), 366, 363 & of IPC and sentenced him to life imprisonment with fine of Rs.5000/-, ten years R.I. with fine of Rs.2000/- and seven years R.I. with fine of Rs.2000/- with default stipulation.

(2.) In brief the prosecution case is that on 11.03.2009 at 04:00 PM, when prosecutrix (name and identity of the prosecutrix imposed by law contained in section 228A of IPC is not disclosed) who was minor (below 12 years of age) was standing near her house situated in the village Dhana, applicant came to her and after giving inducement of payment took her to his house. At that time there was nobody in the house. Appellant after bolting the door of the room of his house undressed her and himself got undressed and committed rape with her due to which blood oozed out from her vagina. He wiped that blood from her panty. As prosecutrix shouted and wept, he left her and gave her a ten rupee note and asked her not to tell anything to anybody about the incident. Thereafter, prosecutrix (PW/1) went to her house and narrated the incident to her mother Premrani @ Tulsa Bai (PW/2). On that Premrani @ Tulsa Bai Bai (PW/2) went to appellant's house along with prosecutrix to reproach him. At that time, Pancham Chadar (PW/4), Manoj Sen (PW/5) and Roopesh Mishra also came there. Prosecutrix narrated the incident to them too and then prosecutrix's parents' took her to Police Station Naryawali, District Sagar where she lodged the report of the incident (Ex.P/1) which was written by Purushottam Kosti, Head Constable (PW/11) who registered Crime No.51/2009 for the offence punishable under Section 376 of IPC and investigated the matter. During investigation, he seized ten rupee note from the possession of prosecutrix which was given to her by the appellant and prepared seizure memo (Ex.P/2), sent prosecutrix for medical examination to District Hospital, Sagar along with application (Ex.P/12) where Dr. C.S. Stephen (PW/7) examined the prosecutrix and gave MLC report (Ex.P/7). She also prepared slide of vaginal swab of prosecutrix and seized her panty which was soaked with blood and sent these articles to police station Naryawali through Constable Govind in sealed packet. At the police station that packet was seized by the Purushottam Kosti who prepared seizure memo (Ex.P/14). Further investigation was conducted by Bharat Singh Thakur, Sub-Inspector (PW/11) and during investigation he went to the spot and prepared spot map (Ex.P/3) and also arrested appellant and prepared arrest memo (Ex.P/6) and on the information of appellant seized one blood soaked panty of the prosecutrix and prepared memorandum (Ex.P/4) and seizure memo (Ex.P/5). He also sent appellant to District Hospital Sagar for medical examination along with application (Ex.P/16) where Dr. A.K. Kastwar examined the appellant and gave report (Ex.P/10). He also seized his brief and sent it to P.S.Naryawali in sealed packet which was seized by Bharat Singh Thakur (PW/11) who prepared seizure memo (Ex.P/15). He also recorded the statements of prosecutrix (PW/1), Premrani @ Tulsa Bai (PW/2), Preetam (PW/3), Pancham (PW/4), Manoj (PW/5) and Roopesh Mishra. He also sent all the seized articles for chemical examination to FSL, Sagar along with the draft Ex.P/17. Dr. Jignesh Diwakar (PW/9) conducted ossification test of prosecutrix regarding estimating her age and gave report (Ex.P/11) to the effect that prosecutrix was below 12 years of age. After investigation police filed charge sheet against the appellant before Judicial Magistrate First Class Sagar, who committed the case to the Court of Sessions. On that S.T.No.402/2009 was registered which was tried by learned Sessions Judge Sagar and framed the charge against the appellant for the offences punishable under Sections 363, 366 (A), 376 (2)(f) of IPC. The appellant/accused abjured his guilt and took the defence that he is innocent and has falsely been implicated in the case. In this regard he also produced Jeewan Dhanak (DW/1) in his defence. However, after trial learned Sessions Judge found the appellant guilty for the offences punishable under Sections 363, 366 & 376(2)(H) of IPC and sentenced him as aforesaid. Being aggrieved from that judgment, appellant filed this Criminal Appeal.

(3.) Learned counsel for the appellant submitted that prosecution did not produce any reliable evidence regarding proving the age of the prosecutrix at the time of incident. Her mother Premrani @ Tulsa Bai (PW/2) did not depose anything regarding her age. From the statement of Premrani @ Tulsa Bai (PW/2) mother of the prosecutrix it appears that at the time of incident prosecutrix was studying in class fifth. But prosecution did not produce school entry register or any other document for proving her age. Learned trial court only on the basis of ossification test report held that the prosecutrix was below 12 years of age at the time of incident. While on the basis of ossification test, only approximate age can be stated, which has a difference of upto 2 years. Even in the ossification test report, it is mentioned that the age of the prosecutrix was between 9 to 12 years. It is submitted that giving the benefit of 2 years, the age of the prosecutrix comes to 14 years. Learned trial court without appreciating these facts wrongly found that at the time of incident the prosecutrix was below 12 years of age. So conviction of the appellant under Section 376 (2)(f) is not proper and bad in law. It is further submitted that regarding rape also there are many contradictions and omissions in the statements of prosecutrix and her parents. They all are of the same family and interested witnesses. According to prosecution story, appellant committed rape with the prosecutrix in his house at 04:00 PM. But appellant's house is situated in a populated locality. It is surprising that in the noon around 4 o'clock nobody saw the appellant and the prosecutrix going to the place of incident. Learned Trial Court without appreciating these facts wrongly found the appellant guilty for the aforesaid offence. Hence, counsel prayed that the impugned judgment be set aside and the appellant be acquitted of the said offences.