BANSILAL Vs. STATE OF M P

JUDGEMENT

(1.) This appeal is directed against the judgment and order of conviction and sentence passed by the learned Second Additional Sessions Judge. Neemuch in Sessions Trial No. 101/94 dated 29-12-1995 whereby he was pleased to convict the appellant of the offences under Sections 363. 376 and 377 of the Indian Penal Code and sentenced him to undergo R.I. for 3 years and fine of Rs. 500/- in default 2 months R.I. for offence under Section 363 I.P.C. 10 years R.I. arid fine of Rs. 1,000/- in default 4 months R.I. for offence under Section 376 I.P.C. and 5 years R.I. and fine of Rs. 500/- in default 2 months R.I. for offence under Section 377 I.P.C. directing all sentence to run concurrently.

(2.) The facts giving rise to this appeal in brief are that on the report of one Bhanwarlal (P.W. 2) at police station Neemuch offencesT under the aforesaid provisions were registered against the accused. It is alleged that in the intervening night of 2nd and 3rd May. 1994 the accused/appellant kidnapped a minor girl Durgabai (P.W. 1) who was aged between 8 and 11 and took her on a cycle towards Hawai Patto (air strip) Neemuch by deceiving her on the pretext that she is being taken to her Mausi maternal aunt's' place. He asked her to get down on the earth and committed sexual intercourse with her. He also had an unnatural intercourse with her by putting his male organ in the mouth as also in the rectaum of the girl and thus committed the aforesaid offences. The prosecutrix was sent to the hospital for medical examination and PW 5 Dr. Smt. Shaktibala Sharma examined her injuries and the private parts and opined that the girl was raped. Dr. Smt. Pramila Rathore PW 7 medically examined the girl and found that the girl was raped as also subjected, to unnatural intercourse.

(3.) On appreciating the evidence of Durgabai PW/1. Dr. Smt. Shaktibala Sharma PW /5. Dr. Smt. Pramila Rathore PW /7 and the documents reports the trial Court found that the appellant had committed the aforesaid offences and convicted him. The learned counsel for the appellant Shri Khan argued that the lower Court was not justified in coming to the conclusion that it has reached. He argued that there is a material contradiction in the story of Dr. Rathore and Smt. Shaktibala whereas Dr. Smt. Rathore has said that Dr. Smt. Shaktibala has referred the girl to her. Dr. Shaktibala, does not say so. The learned counsel argued that this creates a doubt whether the girl was examined as contended by the prosecution. The learned counsel argued that looking to the evidence of the doctors the lower Court could not have accepted that there was a penetration in the private part of the girl as her vaginal examination does not support the conclusion. He argued that there were only abrasions on the private part of the girl which are possible by some injuries on the cycle as according to the prosecution story the girl was token on cycle by the accused. He argued that once the story of sexual intercourse is doubtful the whole prosecution case must fail to the ground and at worst the case could have been held proved that of unnatural offences and nothing mere for which the sentence passed by the learned sessions judgeT is too harsh and much above the permissible limits.