Mahendra Kumar vs The State Of M.P.
2022 Latest Caselaw 7831 MP

                                                                         1
                                                   IN THE HIGH COURT OF MADHYA PRADESH
                                                                AT JABALPUR
                                                                        BEFORE
                                                            HON'BLE SMT. JUSTICE ANJULI PALO
                                                                ON THE 15th OF JUNE, 2022

                                                        CRIMINAL APPEAL No. 1750 of 1998

                                                Between:-
                                                MAHENDRA KUMAR, S/O RAMSWAROOP
                                                BAGRI, AGED ABOUT 18 YEARS, OCCUPATION-
                                                CULTIVATOR, R/O VILLAGE KHIRBATOLA, P.S.
                                                DEVNDRAGARH, DISTRICT PANNA, (MADHYA
                                                PRADESH)

                                                                                                      .....APPELLANT
                                                (BY SHRI VIJAY NAIK WITH MR.ANAND NAYAK, ADVOCATES )

                                                AND

                                                STATE OF MADHYA PRADESH

                                                                                                    .....RESPONDENT
                                                (BY SHRI ARVIND SINGH, GOVERNMENT ADVOCATE )
                                           This appeal coming on final hearing this day, th e court passed the
                                     following:
                                                                       JUDGMENT

This criminal appeal has been filed by the appellant against impugned judgment dated 21.7.1998 passed by the Sessions Judge, Panna in Sessions

Trial No.102/1997 whereby he has been convicted for offences under sections 376 read with 511 of the Indian Penal Code and sentenced to undergo R.I. for 5 years and fine Rs.500/-, with default stipulations.

2. The prosecution case, in brief, is that on 07.10.1997 at about 10 hours the prosecutrix and her cousin-Sunita had gone for cattle grazing to the

Signature Not Verified SAN field of Phurtala. The appellant was also there. He asked Sunita to take her cattle

Digitally signed by RAJESH MAMTANI Date: 2022.06.16 17:58:10 IST back. When she refused, appellant gave her two slaps. Sunita started crying and

moved from there. Then appellant attempted to commit rape with the prosecutrix. When prosecutrix shouted, then Sunita came back. Thereafter, appellant left her and fled away from the spot. Both the girls came to the house and conveyed the entire incident to their parents. The prosecutrix lodged report (Exhibit-P/10) against the appellant. The Police sent the prosecutrix for medical examination and started investigation. After completion of investigation charge- sheet has been filed against the appellant for offences under sections 376 r/w 511 of IPC before the concerned Court.

3 . After conducting trial, the trial Court found the testimony of the prosecutrix, Sunita and mother of prosecutrix to be trustworthy. Leeladevi

(PW.1) proved the age of the prosecutrix. The date of birth of the prosecutrix is 10.7.1988. According to her, she gave certificate (Exhibit-P/1). Her statement has not been challenged by the appellant because the date of incident was 07.10.1997 and prosecutrix was aged about 09 years. Dr.Sharad Dwivedi (PW.2) conducted ossification test and found her between 14-15 years of age. His testimony has also gone un-rebutted and not challenged by the appellant. Dr.(Smt.)Pushpa Dwivedi (PW.3) found the age of prosecutrix around 12 years. She found that sexual characters of the prosecutrix were not developed. Her testimony was also unchallenged. Therefore, trial Court has rightly held that on the date of incident the prosecutrix was minor.

4. The prosecutrix stated before the Court according to the F.I.R. She stated that appellant thrown her on the field and took out her undergarments. He also removed his own clothes and laid upon her and thereafter tried to commit the sexual intercourse. The prosecutrix forcefully kicked him away. The Signature Not Verified SAN

appellant in specific words stated that until he would commit sexual intercourse Digitally signed by RAJESH MAMTANI Date: 2022.06.16 17:58:10 IST

with the prosecutrix, he will not leave her. Bala Bagari came to the spot. Then

Sunita also reached there and saw him in objectionable position with the prosecutrix. From her testimony it is clearly established that because the prosecutrix resisted and Sunita came at the spot, the appellant could not complete the sexual intercourse with the prosecutrix. Learned trial Court did not find any material contradictions or omissions in their statements. Both the girls informed the entire incident to the mother of prosecutrix, namely, Tijiya who also corroborated the prosecution case. Investigation has been carried out by R.K.Malviya (PW.4). Spot map was prepared by Shripat (PW.5), which shows that incident took place on the field, as stated by the prosecutrix. PW.11-Saheb Lal also conducted investigation and recorded statements of the witnesses under section 161 of Cr.P.C.

5. This Court also does not find any material contradiction and omission between the Court statements of the witnesses and Police statement recorded under section 161 Cr.P.C. There is no delay in lodging the FIR. Even otherwise, there is nothing on record which indicates that appellant has been falsely implicated in the case. The defence witness, namely, Rajju Lal Sahu also stated that at the time of incident the prosecutrix was present in the field where incident took place and appellant was also present. He also stated that prosecutrix was complaining that appellant only slapped on her cheeks. She has stated nothing against the appellant regarding his act. But, he is hear say

witness. Thus, the prosecution story has been partly corroborated by the defence witness himself. In the opinion of this Court, learned trial Court has rightly convicted the appellant under sections 376 and 511 of the Indian Penal

Signature Not Verified SAN Code.

Digitally signed by RAJESH MAMTANI

5. Learned counsel for the appellant has also challenged the sentence Date: 2022.06.16 17:58:10 IST

part of the impugned judgment. He placed reliance on the decision in the case of Jarnail Singh Vs. State of Punjab, (1998) 8 SCC 629, wherein the Apex Court has held that girl was minor and boy was of 17 years of age. The prosecutrix was consenting party in view of the fact that it was one time act and also the young age of the appellant, sentence of imprisonment reduced to the period already undergone with a fine of Rs.12,000/- to be paid to the prosecutrix as compensation.

6. Learned counsel for the appellant requested that incident had taken place in the year 1997 and the old act was amended. In the light of law laid down in the case of State of Haryana Vs. Prem Chand, (1997) 7 SCC 756 the benefit of probation be granted in favour of the appellant. The facts of the aforesaid case are different than the case at hand. The appellant is in custody since 21.7.1998. His sentence has been suspended and he was released by this Court on bail on 14.10.1998. The appellant was arrested on 05.11.1997. So earlier he was in judicial custody only upto 13.11.1997. In the facts and circumstances of the case, this Court is not inclined to grant benefit of probation to the appellant.

7. Considering the over all facts and circumstances of the case and appreciating the oral and documentary evidence available on record, this court finds that there is no merit in the appeal. In the result, the same stands dismissed.

(SMT. ANJULI PALO) Signature Not Verified JUDGE SAN RM

Digitally signed by RAJESH MAMTANI Date: 2022.06.16 17:58:10 IST