Criminal Appeal No. 2387 of 1997 · Madhya Pradesh High Court · 2022

(BY SHRI D.K.PAROHA, GOVERNMENT ADVOCATE) --------------------------------------------------------------------------------- Reserved on : 28.03.2022 Delivered on : 12.05.2022 -------------------------------------------------------------------------------- .....RESPONDENT This appeal coming on final hearing this day, the court passed the following: JUDGMENT This appeal has been filed by the appellant being aggrieved by the impugned judgment dated 15.10.1997 passed by the Sessions Judge, Sidhi i n Sessions Trial No.112/1995 whereby he has been convicted for an offence under section 376 of the Indian Penal Code and sentenced to undergo R.I. for 7 years with fine of Rs.1000/- with default stipulations.

2. As per prosecution case, there is allegation against the appellant 2 that around 08 months prior to 31.5.1995, and thereafter on number of times he committed rape with the minor prosecutrix and therefore, she conceived. At the time of lodging of an FIR, the prosecutrix was having pregnancy of about 08 months. After coming to know about such fact by parents of the prosecutrix, an FIR has been lodged against the appellant. Thereafter, charge-sheet has been filed and appellant was tried. 3 . The trial Court placed reliance on the testimony of the prosecutrix (PW.1) as also on her family members and by the impugned judgment convicted and sentenced the appellant as mentioned hereinabove. 4 . Learned counsel for the appellant challenged the aforesaid judgment on the ground that appellant is innocent and has been falsely implicated in the crime in question because brother of the prosecutrix had outraged the modesty of appellant's aunt. Just to save brother of the prosecutrix, present report has been lodged against the appellant. The prosecution has not produced any school certificate of the prosecutrix. Therefore, the appellant be acquitted of the charges levelled against him.

5. The first question raised by the learned counsel for the appellant before this Court is that the age of prosecutrix has not been properly proved by the prosecution. No record from the school has been produced by the prosecution, though the prosecutrix stated that she studied in Class-I. No x-ray or ossification test of the prosecutrix was conducted. Therefore, appellant is entitled to be benefitted in this regard. 6 . The prosecutrix (PW.1) herself stated that at the time of commission of offence she was aged about 13 years. The mother of 3 prosecutrix, namely, Gujartua (PW.2) also stated that prosecutrix was of 14 years. Doctor-Ms.Kalpana Ravi [PW.4] opined that the prosecutrix was a ge d between 13-15 years because her sexual characters were in developing stage. She also found that since prosecutrix was having pregnancy of about 6-7 months, therefore, her x-ray examination was not conducted. The trial Court itself observed that her estimated age was between 14-15 years, which is based according to opinion of Dr.Kalpana (PW.4). 7 . Thus, after considering her body features, particularly that her sexual characters were in developing stage, this Court comes to the conclusion that prosecutrix was below 16 years of age at the time of incident.

8. The prosecutrix stated in detail in support of FIR (Exhibit-P/1) and against the appellant. She stated that, in absence of her parents and family members at home, when she went into 'Kothe' to bring wooden stick ('lakdi' ) and dung cakes ('kande'), the appellant was already present there. Then he forcibly committed sexual intercourse with her and left her after only about 1-2 hours. She also stated that he threatened her not to disclose the incident to anyone otherwise he will kill her. Due to fear of appellant, the prosecutrix kept mum. Thereafter, the appellant forcibly committed rape with her in intervals of 15-15 days. Resultantly, she conceived. She did not inform this aspect to her parents, but she communicated the same to sister of the appellant, who intimated to her family members. In presence of her parents, the family members of appellant took the prosecutrix to Doctor for 4 abortion. The prosecutrix clearly stated that child belonged to the appellant. It was not challenged by the appellant in her cross-examination. Some suggestions were given to the prosecutrix that appellant resided near her house and he used to frequently visited her house. She did not inform to anyone about the incident because she was the consenting party. But, in examination-in-chief itself the prosecutrix clearly stated that, she was under the fear of the appellant. She was immature and 13-14 years old girl. She was not aware about the consequences of the act of the appellant. 9 . Even the Doctor (PW.4) suggested that there was possibility that appellant would have committed sexual intercourse forcibly with the prosecutrix. She found that old tear in hymen was present. She also found slight tenderness during her pelvic examination. She also found that prosecutrix was not habitual to sexual intercourse. But, she was pregnant. 1 0 . This fact was also supported by her mother-Gujartua (PW.2). She stated that the prosecutrix further stated in presence of mother and aunty of appellant that child belongs to the appellant. Thereafter, the doctor examiner her.

11. Learned counsel for the appellant has placed reliance on the decision in the case of Sunil Vs. State of Haryana, (2010) 1 SCC 742, in which, the secondary sexual character of the prosecutrix were well developed and accused & prosecutrix were in love relationship. Therefore, the benefit of doubt was given to the accused therein. The facts of instant case are different. It is apparently clear that the prosecutrix was below 16 year of age. Her sexual characters were in developing stage, therefore, the 5 principle laid down in the case of Sunil (supra) are not applicable in the case. Similarly, the case of State of Madhya Pradesh Vs. Munna, (2016) 1 SCC 696 is also not applicable in this case because the present one is not the case of consensual intercourse. 1 2 . After aforesaid discussion this Court comes to the conclusion that appellant has rightly convicted under section 376 of the Indian Penal Code. In the result, the appeal being devoid of merit, stands dismissed. RM (SMT. ANJULI PALO) JUDGE Signature Not Verified Signature Not Verified SAN SAN