SANTOSH Vs. STATE OF MP

JUDGEMENT

(1.) Being aggrieved by the judgement dated 27-1-2009 passed by XV AS J, Indore in S.T. No. 616/2008 whereby the appellant was convicted for the offence punishable under section 376/511 of IPC for a period of 4 years' imprisonment with fine of Rs. 500/-, the present appeal has been filed.

(2.) In short case of prosecution was that on 2-6-2008 the parents of prosecutrix/Durga went on job for earning their livelihood, at that time, prosecutrix/Durga, who was aged 10 years went to the house of Jaya for "playing. It was alleged that appellant who happens to be the father of Jaya asked the prosecutrix to sit down as he is providing something for eating. It was alleged that appellant sent his daughter Jaya to market for purchasing some articles. It was alleged that thereafter the appellant tried to rape the prosecutrix. Further case of the prosecution was that upon her shouting the appellant threatened the prosecutrix/Durga for dire consequences. It was alleged that appellant paid a sum of Rs. 10/- to the prosecutrix. It was alleged because of fear the prosecutrix did not inform the incident to her parent's but later on 4.6.2008 incident was stated by the prosecutrix to her parents. Upon this a complaint was lodged and case was registered at Crime No. 391/2008. After investigation the charge-sheet was filed. After framing of charges and recording of evidence, appellant was convicted as mentioned above against which the present appeal has been filed.

(3.) Learned Counsel for the appellant submits that appellant was convited illegally while appellant has not committed any offence. It is submitted 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 learned Court below committed error in not considering material omissions and contradictions appearing in the testimony of the prosecution witnesses. It is submitted that learned Court below committed error in convicting the appellant as offence was not made out under section 376, IPC. It is submitted that hymen of the prosecutrix was intact and the medical evidence is not supporting the case of prosecution. It is submitted that even if medical evidence adduced by the prosecution is accepted as true, then too, it can hardly be an offence under Section 354, IPC. For this contention reliance is placed on a decision in the matter of Aman Kumar v. State of Haryana, (2004) 4SCC 379, wherein, in a case where neither rape nor attempt to rape was established, Hon'ble Apex Court set aside the conviction under section 376 (2) (g), IPC and convicted the accused under section 354 read with section 34, IPC. It is submitted that in view of the aforesaid facts the appeal filed by the appellant deserves to be allowed and the judgment of conviction derserves to be set aside.