IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA ON THE 15th OF FEBRUARY, 2024 CRIMINAL APPEAL No. 1324 of 1999 BETWEEN:-

BALU S/O DARIYAVSINGH AGED ABOUT 17 YEARS, OCCUPATION LABOUR R/O VILLAGE POLAYKALLA DISTRICT SHAJAPUR (MADHYA PRADESH)

.....APPELLANT (SHRI AKHIL GODHA - ADVOCATE ON BEHALF OF SHRI S.S. SHIVHARE-

ADVOCATE)

AND THE STATE OF M.P. THROUGH POLICE STATION AVATIPUR BADODIYA(MADHYA PRADESH)

.....RESPONDENT (SHRI TARUN PAGARE- PUBLIC PROSECUTOR)

This appeal coming on for orders this day, the court passed the following:

ORDER

The present appeal is filed under section 374 of Cr.P.C being aggrieved by the order dated 05.10.1999 passed by Special Judge, Shajapur in Special Criminal Case No.43/1999 convicting the appellant under section 376 of IPC and sentencing him for 7 years RI.

The prosecution case is that the prosecutrix alongwith PW/2, who is 7 years old had gone to field alongwith goats for grazing the goats, the accused came at the spot and caught hold her and removed her garments on the point of knife. When she resisted she got injury on finger of right hand. When PW/2 who was accompanying the prosecutrix resisted. She was also beaten by the Signature Not Verified Signed by: SOURABH accused. She came back home and narrated the incident to her parents and a report was lodged.

The prosecutrix was sent for medical examination and PW/4 Dr.R.B Jabri examined the prosecutrix. She stated that there was injury on ring finger and scratches, though she did not find any injury on the private part. She stated that no definite opinion can be given about rape.

Her seized garments were sent to FSL and the FSL report is Exb.P/11.

As per the FSL report, semen were found on under garments of the prosecutrix. The accused was also examined by PW/9 Dr.Kapil Sahaye whose report is Exb.P/13. He found that the accused to be competent for intercourse.

Learned counsel for the appellant submits that the trial court has erred while convicting the appellant on the basis of testimony of child witness PW/1 and PW/2. It is further argued that the testimony of prosecutrix does not corroborate with medical and other evidence and therefore, the testimony of the prosecutrix PW/1 and PW/2 child witness were not trustworthy.

In support of his submission, he has placed reliance on the judgment passed in the case of Badriprasad Vs. State of MP reported in 1983(2) crimes 105, Bharat Vs State of MP reported in 1992 (3) crimes 384, Sadhray Vs. State of MP reported in 1995 (2) crimes 106, State of Andra Pradesh vs. Lankapalli Venkateshwarlu reported in 2000 AIR (SC) 3555, Dilip and Anor Vs. State of MP reported in 2001 (9) SCC 452, Nandlal Yadav Vs State of MP reported in 2002 (2) MPLJ 376 and Yerumalla Vs. State of Andra Pradesh reported in 2006 (9) SCC 713.

Learned counsel for the respondent/state supports the order of conviction and sentence.

Signature Not Verified Signed by: SOURABH The judgments relied upon by the learned counsel for the appellant would not render any assistance to the facts of the present case.

In the case of Bharat (supra), the testimony of prosecutrix was disbelieved on the ground that she stated that she had received injuries even on her back and private parts. However, her testimony was not corroborated with the medical evidence. No marks of injury was present on her body. She was found to be habitual to sexually intercourse and there was old healed teared hymen. The prosecutrix was a major lady. In the present case, the testimony of minor prosecutrix aged about 13-14 years PW/1 is well corroborated with medical evidence and FSL report.

The case of Yerumalla (supra) was being considered against the acquittal and the court held that the trial court has disbelieved the testimony of prosecutrix aged about 8 years on the ground that her testimony was not corroborated by the medical evidence, which has been held fatal. Thus, the said judgment would not render any assistance in the facts of the preset case.