RAJA ALIAS SATIYAPAL Vs. STATE OF M P

JUDGEMENT

(1.) The appellant, having been found guilty of offence punishable under section 354, P.P.C. and sentenced to two yearsT R.I., by judgment dated 26/9/1984, passed by Shri D.P. Pandey, Sessions Judge, Durg in Sessions Trial No. 81 of 1984, has preferred this appeal from jail challenging his aforesaid conviction and sentence.

(2.) The appellant was put on trial for attempting to commit rape on Kumari Lalsa, a minor girl of about 5 years, on 19-4-1984, punishable under section. 376/511, I.P.C. It is alleged that Kumari Lalsa was the minor daughter of Chandradevsingh, the neighbour of the appellant. On the date of incident, Chandradevsingh had gone out of his house to sell fruits. The appellant persuaded Kumari Lalsa to come into his house by promising to give her some ice-cream. The appellant was admittedly engaged in selling ice-cream. When the girl went into the house, the appellant closed the door, took off his own underwear and also her underwear and made the girl to lie on his belly and started rubbing his penis on the vagina of the girl. The girl felt pain and started crying, on which she was allowed to go out. Kumari Lalsa went weeping to her mother and told her what the appellant had done with her. Her father Chandradevsingh was informed about the incident when he returned home in the evening. The report was lodged thereafter. Kumari Lalsa was sent for medical examination of Dr. (Mrs) Dipti Prakash (P.W. 1) and was examined by her next day at about 11.30 A.M. The lady doctor found no injury of any type on the private part of the person of Kumari Lalsa. After investigation, the appellant was put on trial as aforesaid.

(3.) During the trial, Kumari Lalsa was examined as P.W. 4. The learned Judge found her to be of about 5 years of age and unable to understand anything. Inspite of it, she told the Court in the beginning that the appellant was her neighbour and sells ice-cream. She also told that she used to call him Bhaiya. Thereafter, she, however, stopped speaking and, hence, her evidence could not be recorded. The learned Judge, therefore, found that there was no eye-witness of the incident. According to the learned Judge, the prosecution can be based on circumstantial evidence also. The learned Judge found that there were at least four circumstances which point to the guilt of the appellant, viz., (i) appellantTs effort to call girl inside his house on promise to give her ice-cream, (ii) Kumari Lalsas coming out of his house weeping; (iii) statement of Kumari Lalsa to her mother Gayatri (P.W. 5), father Chandradevsingh (P.W. 3) and Bhola Khan (P.W. 7); and (iv) admission of the appellant before Chandradevsingh (P.W. 3), Bhola Khan (P.W. 7) and Anandi Shah (P.W. 10). Relying however on the evidence of Dr. (Mrs) Prakash (P.W. 1), the learned Judge did not find and attempt on his part to commit rape, but found that he had undressed himself and put the girl on his belly and was rubbing his genital organ on the vagina of the girl. That is how the appellant has been found guilty of offence punishable under section 354, I.P.C.