JUDGMENT

1. This criminal appeal under section 374 of Cr.P.C. 1973 is preferred being aggrieved by judgment dated 30.1.1999 in S.C. No.198/1998 by 13 Additional Sessions Judge, Indore whereby the appellant/accused has been convicted under section 376 read with Section 511 of IPC and has been sentenced for 5 years R.I. within fine of Rs.1000/- with default stipulation of 3 months R.I.

2. Facts in brief are that there was a marriage celebration at Kabutarkhana, Indore in neighborhood of child/victim (PW-1). The victim and her mother (PW-2) were also present to participate in the marriage ceremony organized in the intervening night of 7 and 8.2.1998. During the marriage function, the victim got missed and resident of Kabutarkhana, Mustak Ali (PW-5) rushed towards the place from where the noise of crying and weeping was coming. Modh. Siddiqui (PW-4) and Mohd. Nasir (PW-6) have also followed Mustak Ali. At about 12:30:AM in the intervening night, they found that a sound is coming from the Gumti situated near wooden tall of Mohd. Nasir and Jafar and the gate of the said Gumti was partially closed and the appellant/accused was lying on the victim, the appellant was undressed and the child was also without cloths, the appellant was indulge in sexual act, the child/victim was crying due to pain. The appellant/accused tried to free from the spot and he was caught by them, they took the appellant at Police Station Pandhrinath, Indore immediately alongwith the victim/child. At 00:45AM in the morning of 8.2.1998, the report Ex.P/4 was lodged by Mustak Ali (PW-5).

3. The appellant/accused was taken into custody vide Ex.P/6. Both were medically examined. Materials were collected for examination. Spot map was prepared. Statements of the witnesses were recorded. During investigation, birth certificate of the victim was taken on record and after the investigation, final report was submitted under section 376(2)(f) of IPC.

4. Charges were framed under section 376(2)(f) of IPC. The appellant/accused abjured guilt and claimed for trial.

5. To bring home the guilt, the prosecution has examined the Victim PW-1, her mother (PW-2), father of the victim (PW-3), Mustak Ali who lodged the FIR (PW-5), Mohd. Siddiqui (PW-4), Mohd. Nasir (PW-6) who alongwith Mustak Ali have apprehended the appellant/accused from the place of incident, Dr. Kailash Surgeon, MY Hospital, Indore (PW-7), Investigating Officer Bhartendu Salunke PW-8, Medical Officer Dr. Jagdish Chandra Gupta (PW-9), Sub-Inspector Shivpal Singh Chouhan PW-10 and Dr. Pratibha Lal PW-11.

6. In examination under section 311 of Cr.P.C.,1973, all the facts and circumstances against the accused/appellant either denied or ignorance was expressed pleading innocence. His defense is that the marriage of PW-1/victim's sister was fixed with him, but thereafter, she was married with some other person. He went to see the marriage function and was robbed in this case falsely. The appellant/accused examined his mother Haseena as (DW-1) and neighbor Seria as DW-2.

7. Appreciating the evidence, the learned trial Court found proved that the victim/PW-1 was aged about 06 years and also found proved that the appellant/accused was present in the marriage ceremony and he caught hold the victim and undressed her, he also removed his cloths, laid on the child/victim, tried to enter his genital part in the vagina of victim/PW-1 and the act of the appellant falls within the definition of "attempt to rape" and acquitted from the charges under section 376(2)(f) of IPC and convicting the accused/appellant as mentioned in para No.1, above.

8. Challenging the conviction as well as sentence, this appeal has been preferred.

9. No one represented the appellant/accused. Vide order dated 4.9.2024, Amicus Currie has been appointed by this Court from the list of Penal Advocates to represent the appellant. With the assistance of Amicus Currie, the appellant/accused was heard finally.

10. Date of birth of the victim/PW-1 has been found proved on