SHUKRU RAM Vs. STATE OF H P

JUDGEMENT

(1.) Challenge herein is to the judgment dated 8.3.2013, passed by learned Additional Sessions Judge, Mandi, in Sessions Trial No.21 of 2012, convicting thereby the accused for the commission of offence, punishable under Section 376 read with Section 511 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for four years and to pay a fine of Rs.5000/-, as fine. The period of detention, undergone by the convict, was ordered to be set off as per provision contained under Section 428 of the Code of Criminal Procedure. Consequently, he has been lodged in jail and undergoing the sentence.

(2.) Appellant-accused has assailed the findings of conviction and sentence on several grounds before this Court in the present appeal, however, mainly that there being no cogent and reliable evidence available on record to show that the prosecutrix is minor below 16 years of age, the findings to the contrary recorded in the impugned judgment being erroneous are neither legally nor factually sustainable. Also that the evidence produced by the prosecution is highly contradictory and not worthy of credence. On the other hand, the enmity between the accused and the complainant party stands established on record and as such the accused has been falsely implicated in this case. Learned trial Court, however, has miserably failed to appreciate such material on record while recording the findings of conviction against him.

(3.) Shri Bhupender Ahuja, learned counsel, while taking this Court to the evidence of the prosecutrix, PW-2 Reetu and also the medical evidence having come on record, has vehemently argued that it is not at -all proved that the prosecutrix is minor below 16 years of age and the accused has made an attempt to assault her sexually. In the alternative, according to Mr. Ahuja, the present is a case, which at the most falls within the domain of Section 354 of the Indian Penal Code, viz. outraging the modesty of the prosecutrix. According to him, even if it is concluded that it is an offence of attempt to rape, in that event also for want of cogent and reliable evidence, establishing that prosecutrix was minor below 16 years of age, sentence imposed upon the accused, is contrary to the provisions of law.