- (1.)This appeal is filed by the State of Madhya Pradesh questioning the correctness of the judgment and order dated 14.07.2009 passed in Criminal Appeal No. 1541 of 1994 in allowing the appeal filed by the accused (Respondent herein) by setting aside the judgment of conviction and sentence of the Respondent Under Section 376 of the Indian Penal Code, hereinafter referred to as 'the Code'. However, the term of custodial sentence imposed for an offence Under Section 366 of the Code has been reduced from five years to three years by the High Court. The brief facts in nutshell are stated hereunder for the purpose of appreciating the rival legal contentions urged on behalf of the parties to find out as to whether this Court is required to interfere with the impugned judgment and order of setting aside the conviction and sentence for the offence Under Section 376 of the Code. The case of the prosecution is that on 03.01.1994, at about 5.30 P.M. when the victim-prosecutrix found that her mother had not returned from the office, the co-accused Badri gave a false promise to marry her and persuaded her to accompany him. She was taken to a garden where Badri has subjected her to sexual intercourse. On way back to home, the Appellant had also joined them in the transit and after a short discussion about the future plan, he and Badri took the prosecutrix in a minibus to railway station. Badri assured the prosecutrix that after making all necessary arrangements for the marriage he would come back to her next morning. The co-accused Badri persuaded the prosecutrix to go with the Respondent. However, he did not fulfill the promise. After obtaining custody of the prosecutrix from Badri, the Respondent first took her to his aunt's house that was located in Chandbarh and after introducing her as his sister-in-law, stayed there for the night. On the following day, he fraudulently induced the prosecutrix to accompany him from one place to another by misrepresenting her that Badri was expected to arrive there and in the night, she was taken to his house situated in village Hinotia where she was made to stay in the portion occupied by his tenant namely Vijay, husband of Usha (PW-12). During the night hours, the Respondent came to the room where the prosecutrix was sleeping and committed rape on her.
(2.)A case was registered against Badri and the Respondent for the offences punishable Under Section 366 and 376 read with Section 34 of the Code. The charge-sheet was filed in the case and the case was committed to the Sessions Court, i.e. IV Additional Sessions Judge, Bhopal, Madhya Pradesh and registered as Sessions Trial No. 213 of 1994. The trial was conducted and in all sixteen persons were examined as prosecution witnesses to prove the charges levelled against the accused. The trial court, on appreciation of the evidence on record held that the age of the prosecutrix was under 16 years. In support of the age of the prosecutrix , the prosecution has produced the documentary evidence of school transfer certificate (Exh. P-17) and copy of the same (P17-A) was placed on the record and the entry registered in the scholar register of Shri Ram Krishana School (Exh. P-16), which copy (Exh. P16-A) was on record, wherein the date of birth of prosecutrix has been recorded as 05.09.1982. Therefore, the proseuction asserted that the age of the prosecutrix was only 12 years at the time of committing offence of rape by the accused. In addition to the aforesaid documentary evidence, the prosecution has examined Dr. C.S. Jain (PW-5) to prove the injuries caused in the general organs of the prosecutrix and he has stated that the said injuries have been caused by the sexual intercourse. The trial court, after elaborately referring to the evidence of the prosecution witnesses, has recorded a finding of fact on the charges considering both oral and documentary evidence on record that the age of the prosecutrix is less than 16 years and, therefore, the question of her consent does not arise, as provided in VI Exception to proviso to Section 376. The trial court came to the aforesaid conclusion on facts and evidence on record and recorded the finding of fact on the said aspect of the matter, on the basis of evidence of the prosecutrix and other material evidence on record.
(3.)It has been argued by the learned Counsel for the Respondent that the evidence of the prosecutrix cannot be accepted as there is material contradiction in her statement.