SUSHIL KUMAR Vs. STATE OF HARYANA

JUDGEMENT

(1.) APPELLANT Sushil Kumar has come up in appeal against his conviction under Section 376 of the Indian Penal Code recorded by the Additional Sessions Judge, Kurukshetra, vide his order dated 3rd September, 1982. He has been sentenced to three years rigorous imprisonment and a fine of Rs. 1000/ -; in default, rigorous imprisonment for six months.

(2.) THE prosecutrix in this case is Puja Devi DW6 aged about 6 -1/2 years. According to Dr. Ranjna Kumari P -W1 who medically examined her on 10th July, 1981, at 7.10 p.m., the hymen of the prosecutrix was intact. It admitted the tip of little finger with difficulty. No other injury except at a bruise on a labia minor was found. The doctor also opined that the bruise could be caused without penetration adding that it could be caused by dust or even by rubbing against a piece of cloth.

(3.) MR . K.K. Aggarwal, learned counsel for the appellant has not challenged the conviction of the appellant but he contends, that from the medical evidence and the evidence of Puja Devi prosecutrix and her mother Pushpa Rani no case under Section 376 of the Indian Penal Code is made out. He submits that only a case under Section 376 read with Section 511 of the Indian Penal Code is made out. The learned counsel has taken me through the statement of Puja Devi wherein she has stated that the appellant inserted his penis into her vagina. However, she was confronted with her statement before the police where she did not state so. Her mother, Pushpa Rani PW -3, also stated that the appellant attempted to commit rape on the prosecutrix. The challan was earlier submitted under Section 376 read with Section 511 of the Indian Penal Code and the commitment to the Court of Session was also under Section 376 read with Section 511 of the Indian Penal Code. In view of the evidence referred to above, it cannot be said with certainty that an offence under Section 376 of the Indian Penal Code is made out. I think that it would not be safe to allow the conviction under Section 376 of the Indian Penal Code to stay. However, the appellant has to be convicted under Section 376 read with Section 511 of the Indian Penal Code. Mr. Aggarwal, learned counsel for the appellant, has further brought to my notice that the appellant is young boy of 19 years of age and he is a student of BA Part I. His prayer is that it is a fit case where the provisions of Section 360 of the Code of Criminal Procedure should be pressed into service. He has placed reliance on a judgment of Bombay High Court reported as Shanker Tukaram v. State of Maharashtra, 1977 Crl.L.J. 476 whereby in similar circumstances the appellant was granted probation in a case under Section 376 read with Section 511 of the Indian Penal Code. I consequently suspend the sentence of the appellant and order that he be released on probation on his executing to the satisfaction of the trial Court a bond in the sum of Rs. 2000/ - with one surety in the like amount to keep the peace and be of good behaviour for a period of two years and to appear to receive the sentence when called upon to do so in the meantime. However, the appellant shall pay Rs. 5000/ - as compensation to the mother of the prosecutrix. The fine, if already paid by the appellant, shall be adjusted towards the amount of compensation to be paid by him. In case the compensation is not paid within three months, the appellant shall upon to serve rigorous imprisonment for two years under Section 376 read with Section 511 of the Indian Penal Code.