Judgment:
N.K. Mody, J.
1. Being aggrieved by the judgment dated 27-1-2009 passed by XV ASJ, 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 the 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 parents but later-on, 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 convicted 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 the 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) 4 SCC 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 deserves to be set aside.
4. In alternative it is submitted that appellant is a young man and is in jail w.e.f. 10-7-2008 and has completed the jail sentence of more than one year. It is submitted that looking to the nature of offence and the fact that appellant has already served substantive part of jail sentence, the same may be reduced to the period already undergone and the amount of fine may reasonably be enhanced.
5. Learned Counsel for respondent/State submits that after due appreciation of evidence, learned Court below has found the offence proved against the appellant, which requires no interference. It is submitted that the appeal filed by the appellant be dismissed.
6. From perusal of record, it is evident that to prove the case prosecution has filed the documents (Exh. P-1 to P-16) and has also examined Durga (P.W. 1), Mamta (P.W. 2), Baloo (P.W. 3), Kamlabai (P.W. 4), Kavita (P.W. 5), Mohanlal Solanki (P.W. 6), Pushpa Chouhan (P.W. 7), Lalchand Tiwari (P.W. 8), Shrinivas Sharma (P.W. 9), Dr. Sudhi Shalwar (P.W. 10), Prahlad (P.W. 11), C.S. Rathore (P.W. 12), Sapna (P.W. 13), Dr. Jyoti (P.W. 14) and Dr. H.K. Dwivedi (P.W. 15).
7. Durga (P.W. 1) who was aged 10 years at the relevant time has narrated how she was raped by the appellants. Prosecutrix was examined by Dr. Jyoti (P.W. 14) who is a Gynaecologist and posted at the relevant time at M.Y. Hospital, Indore has proved the medical report (Exh. P-16). Dr. Jyoti (P.W. 14) has stated that the hymen of the prosecutrix was intact and there is no external injury on private part of the prosecutrix. However, she has stated that there was swelling on the surrounding of opening of vagina. In the medico legal injury report (Exh. P-16) it was pointed by Dr. Jyoti (P.W. 14) that no definite opinion can be given without medical Biochemical examination.
8. After taking into consideration all the facts and circumstances of the case and also the fact that the story narrated by the prosecutrix has not been supported by the medical evidence, sufficient evidence is on record that an attempt was made by the appellant to outrage the modesty of prosecutrix/Durga. In the facts and circumstances of the case, this Court is of the opinion that no offence is made out against the appellant under Section 376, IPC but sufficient evidence is on record on the basis of which it can be held that the appellant has committed an offence punishable under Section 354, IPC.
9. In the result, appeal is partly allowed. The findings of conviction under Section 376 of IPC is hereby set-aside and the appellant is convicted under Section 354 of IPC and so far as the jail sentence awarded to the appellant is concerned the same is reduced to the period already undergone subject to depositing compensation of Rs. 25,000/-, which shall be payable to victim/Durga and the same shall be deposited under the guardianship of her mother in a long term FDR which shall be encashable at the time of her marriage, for which Counsel for the State also agrees, in default the appellant shall suffer jail sentence awarded by the learned Court below.
10. With the aforesaid observations, appeal stands disposed of. C.C. as per rules.