ORDER

This Criminal Appeal has been filed against the judgment of conviction and sentence passed in ST No. 98/2006, State of M.P. vs. Babulal by the Sessions Court, Sehore.

By the judgment dated 11.01.2007 the trial Court has acquitted the appellant /accused from the charge of Section 376 (2) (f) read with Sections 511 and 506 Part II of IPC but has convicted him under Section 354 of IPC and sentenced him for one year imprisonment.

Although this appeal has been filed against the judgment of conviction and sentence but the learned counsel does not press the appeal against conviction he is only pressing this appeal against sentence.

Learned counsel for the State does not oppose the prayer.

Although appeal against conviction is not pressed but in the interest of justice factum of conviction is also seen and after going through the record and evidence of the prosecution witness, conviction is well justified.

Heard the argument of both the learned counsel for parties.

Perused the record.

As per prosecution story the prosecutrix and accused are relatives. On 29.04.2006 when the mother of prosecutrix was not at home and gone out for work, but when she returned home the minor prosecutrix made complaint about the offence committed by the accused, who tried to penetrate his penis in her private part and tried to commit rape by gagging her mouth and after the incident, when she shouted then he ran away.

The trial Court after evidence has passed the sentence of conviction and sentenced the accused as above.

Relative of the prosecutrix P.W. 1 Ramkali Bai has supported the prosecution case. P.W. 3 Dr. Manju Saxena is a lady doctor who has not given any medical opinion regarding injury regarding attempt to commit rape.

P.W. 4 Kanta Bai mother of prosecutrix has been examined. In para 5 of cross-examination this witness has denied that there is any enmity. She has also admitted that she gave an application in police station twice because the first report was not lodged by the police officer. She has deposed that she did not see any injury mark on her daughter but there was semen on clothes. She further agreed that accused used to stay at her home (residence of the witness) and used to eat their food there. Minor prosecutrix has been examined as P.W. 6. In answer to question No. 18 this witness has agreed that the day on which the incident took place, the accused had a quarrel with parents of prosecutrix (father and mother of the witness). Report of FSL is Ex. P-11 which is negative and it says that no semen was found on the Salwar of prosecutrix.

The defence of the accused is that due to enmity of land he has been falsely implicated. Due to enmity he has left his village and living at Bhopal and he had gone to the village to have a talk regarding the disputed land.

Therefore, considering all facts as above and no previous criminal record and a prayer of undergone with increasing of fine and with the consent of learned counsel for the State in which the accused has remained in judicial custody for four days, the appeal is partly allowed and the sentence of one year RI is set aside and accused/appellant is convicted under Section 354 of IPC with an imprisonment of four days and a fine of Rs. 10,000/- to be deposited within 30 days from the receiving of certified copy of this order.

Out of the fine of Rs.10,000/-, Rs.9,000/- shall be paid as compensation to minor prosecutrix through her mother and the minor may have become major and may have been married.

Let the trial Court ensure that compensation is paid to the mother as directed above.

Accordingly, appeal stands disposed of.

(AVANINDRA KUMAR SINGH) JUDGE vkv /-