POONAM CHAND Vs. STATE OF MP

JUDGEMENT

(1.) Being aggrieved by the judgment dated 28/2/2009 passed by Addl. Sessions Judge, Bagli, Dist. Dewas in S.T.No. 221/2008, whereby appellant was convicted for the offence punishable under section 376 (1) IPC for a period of seven years with fine of Rs. 500/-, present appeal has been filed.

(2.) In short case of the prosecution was that on 20.5.2008 at about 11.30 p.m. when complainant/prosecutrix Reshambai was sleeping in yard of her house (Tapri) at that time somebody caught her legs. It was alleged upon identifying, the prosecutrix found that it was the appellant Poonamchand. Upon asking what he is doing appellant shut her mouth by poring the saree and raped her. It was alleged that upon her resistence and shouting appellant ran away. It was alleged that Mukesh also saw the appellant when he was running. It was also alleged that because of non-availability of the transport the FIR could not be lodged immediately after the incident, hence there was delay. Upor complaint the case was registered. After investigation charge sheet was filed against the appellant and after framing of charges and also recording of the evidence appellant was convicted as stated above, against which present appeal has been filed.

(3.) Learned counsel for the appellant argued at length and submits that appellant has convicted illegally while appellant has not committed any offence. Learned counsel further submits that the learned Court below committed error in not properly appreciating the evidence, which resulted incorrect judgment and is liable to be set aside in this appeal. It is submitted that the learned Court below committed error in not considering material omission and contradictions appearing in the testimony of the prosecution witnesses. Learned couonsel further submits that appellant was 30 years of age while the prosecutrix was aged 40 years at the time of alleged incident. It is submitted that case of the prosecution was not supported by medical evidence. No FSL report was filed by the prosecution. It is submitted that Rekhabai is the daughter of the prosecutrix, who was examined as PW-7 and, who has also alleged to be the eye witness, which is impossible. It is submitted that the prosecutrix is also having the another daughter Laxmibai, who was examined as DW-1, who has stated on oath that appellant was falsely implicated. On the aforesaid grounds it is prayed that appeal filed by the appellant deserves to be allowed and the impugned judgment be set aside.