STATE OF MADHYA PRADESH Vs. KALYAN SINGH

JUDGEMENT

(1.) State has filed this appeal under S. 377 of the Code of Criminal Procedure for enhancement of sentence being aggrieved by the judgment dated 22-6-1990 passed by IInd Additional District Judge to the Sessions Judge Vidisha in Sessions Trial No. 73/86, whereby the learned Judge convicted the respondent under S. 376, I. P. C. but sentenced him to undergone jail sentence, which was of five years and two months.

(2.) As per prosecution story on 23rd April, 1985, the complainant Moharsingh had gone to the village Kheroda alongwith his daughter (prosecutrix) aged about'5 years for marriage of Sirnam Singh s/o. Harinarayan. 'Barat' had gone to village Belot Chakk. At Belot Chakk, Sanman Singh (P. W. 4) informed Mohar Singh that prosecutrix is missing and Kalyan Singh is also missing. Thereafter complainant, Harinarayan, Khilan Singh and Lalaram went to search the prosecutrix and came back to village Kheronda. When prosecutrix was not traceable, report of missing was lodged at P. S. Tyonda, which is Ex. P/1. Even after report the family members were involved in searching the girl. Bhagwan Singh (P. W. 10) was coming back from village Ghatera on bullock cart after leaving his sister Guddibai. In the way Machla also joined him. When they both reached near village Rochhai they found the prosecutrix and Kalyan Singh both under a tree. Seeing them Kalyansingh tried to run away but he was caught on the spot. Prosecutrix was lying unconscious. Blood was oozing from her vagina. Her undergarments were stained with blood. Thereafter both were brought at village Shekhpur on a bullockcart and report was lodged. In the way one Chunnilal also accompanied them. The another report Ex. P/2 was lodged by Mohar Singh and matter was investigated. The prosecutrix was referred to medical examination at Govt. Hospital at Tyonda, thereafter to District Hospital Vidisha, where she was examined by lady doctor Manju Jain (P. W. 1) in presence of Dr. Kusum Garg (P. W. 2). On examination, it was found that she was aged 5 years. She was having 5 plus 5 milk teeth in the jaw. She was restless having temperature of 99 degree. She was unable to walk and stand. The bladder was full up to umbilical cord. On external examination dried blood was found over both the thighs. Yellowish discharge over both labia majora present. After separating labia, mid line tear over skin up to external anal sphincter. Swab taken from the discharge out side the vulva and vagina and dried blood from thighs. Swab was sealed and handed over to constable. Underwear and frock having spot were also sealed and handed over to constable. Hymen was found torn up to 3 to 9 o' clock position. Tenderness ++. Vagina is covered with sluff. Upper portion of the hymen was red, conjested and inflamed and lacerated. In the opinion of the doctor, patient, passed stool during the examination. In the opinion of the doctor rape was committed with the girl. She was referred to Dr. Kusum Garg, Gynaecologist for detailed examination and necessary action and information. Dr. Garg has also written her opinion. She also gave the same finding and it was found that she was subjected to rape.

(3.) The sealed packets were referred for chemical examination. Chemical examination report is Ex. P/11. As per this report on the underwear, frock and slides blood was found and the human sperm were also found on the undergarment of the prosecutrix and on the Dhoti (Pancha) of the accused. The accused was also examined by Dr. S. K. Khatri (P. W. 9) and he was found fully competent to intercourse. After the investigation charge sheet was filed and the respondent was tried. Prosecution examined as many as 11 witnesses and after considering the evidence of the prosecution witnesses, trial Court found the appellant guilty under Section 376, I. P. C. and convicted him. While hearing on the question of sentence, it was pointed out that after amendment in 1993 in the IPC, the minimum sentence of ten years is prescribed for committing rape with a girl below the age of 12 years but the trial Court considering the age of the respondent as 26 years held that due to his sexual desire he could not restrain himself and committed rape with a minor and immature girl and reduced the same upto undergone jail sentence, which was around five years and two months including the period of remission of one year, against which the State has filed this appeal.