IN THS HIGH COURT OF JQDICATURE AT JABALPUR,MP. Crimlnal Appeal No. \^-^ /97. APPELLAJ^TT. (IN JAIL)» s Manlja^ Ram S/o< Budhram Uraon^ age 25 years^ R/o. Vill- Chidapara, PS- Sifcapur Distt-Sarguja^MP^ c^<4r' j: ^^r ^.^'6 ^^7 RESPONDENT, -Vs- $ State of M»P< through PS- Sitapur Distt-^arguja^MP^ CRIMINAL APPEAL U/S. 374(2) OF' THE CODE OF CRIMINAL PROCEDURE-1973. CRIMINAL APPEftL NOo 1818/97 Manijar Ram -Vs- State J U D GM E NT By Hon8ble Shri R^S^Garg Jo The appellant belng aggrieved by the judgment dated 84,8^1997 passed in Sessions Trial NOo 95/97 by the learned Sessions Judge^ Ambikapur convicting the appellant under Section 376 (2)(h) and sentenca.ng him to undergo Rigorous Imprisonment for 10 years^ has filed fchis appeal^ 2) The prosecution case in brief is that on 5•2^1997 the mother of the prosecutrix had gone to some relation^ i.n the evenlng the aecused went to the house of the prosecutrix and asked her to accompany himso that both of them could go'and call the mother of the prosecutrix^ The prosecutrix weat with the accused to some distance biit on way the accused caught hold of her hair^ dragged her towards the fieldj, thereafter he fell her on the grounda denu^dsfher and thereafter the accused comnitted rape upon her<. The accused thereafter brought the girl to the village and required one Iliyas to go and enquire about the mother of tfcie prosecutrix^ The proseeutrix thereaffeer went to her uncle8s plaee where she informed , of the entire incident to her aunt^ Thereafter ^he HV2|feb€ri£<J© 4 informed to her parents and the first Information report was lodged at the police station Sitapuro Tfae girl was sent for her medica^l examiBation^ The doctor ga-re positive report about. fche seseual assault^ The clothes of the girl were seized and were sent for ^ ^. - 2 - chemical analysis<» The state^ents o£ the prosecutrix and witnesses were reoorded and on completion of fche prosecution investigation the challan wa^g filed<» f^<^ j OuWd The accused having denied COTsmission of^offence^put to trlal.<, 3) Learned trial Couzt after recording the evidence and hearing the parties convicted and te. sentenced the accused as referred^ above o 4) Learned coimsel for the appellant submits that from the statementB of the docfeor it would elearly appear that the girl was about l6 years of age and the facts would also show that she was consenting party hence the appellant eould not be held guilty of the cbarge» ©athe other hand learned counsel for fhe State referring to the sfeatementjBsof the girl so also the docmaent Ex»P/4<<; sabmits that the girl was below 12 years o£ age at the tirae of ccnimission of offene@Ah©^@fo^ethe qiiestion of c^nsent does a^<ce. .; . . - . A^<^ca&t not alpguBdr and in vieM of the 'ms^iS^ reporfc^T and the conduet of the pros ecutrix, the appellant was rightly pimished^ 5) P»W«1Anlfca In her stataaents has elearly stated that the acciised Manijar came to her house and required.her to go wlth him to call her mother. she treating the appellant as her brother went with him to some distanee but after sometime the accissed ponneed upon her, caught her hair, dragged her to some distance^ fell her on fehe ground and commit^ed rape upon her, She Glearly sfeafeed that when the accused committed rape upon her she starfeed weaping^ She has also testifled that the aeeused brought her baek to the village aad after reaching the village she narrafced ^"ttae incid.ent t©the relat^ons r^ - 3 - . . • -k.U^_ parentso Frafn tefete/®ae®AifiAac^ statements it ^ clearly appearsthat she made serious allegation against the appellant^ Doctor who had examined the girl opined thafc the glrl was about 14 years of age and suffered sexual assaulte From the report of the doctor it clearly appear^that the girl suffered tw© tears in her hymen and she x^as bleeding ©n touchc, 6) The prosecutlon has relied upon Ex<.P/4a<; to say that the girl was belcw 12 years of age at the time o£ incident^ In support o£ their contention they have examined Beeransai who had brought the admission register to prove the age <L.V\(A^-^^C.^- of the girl^ Qn the face of this ctgmfee^^LcQs? that the girl waa o& l^ years 9 the opinion o£ t foe doctor that the girl was of i4 years cannot be accepted^ The trial Court While recording the stateHients of the girl has estimated her to be of 11 years^ In the opinion of this Court the trial Court was not unjustifted in holding that the girl was below 12 years of age^ The trial Court was also justlfied in h©lding the aec^sed guilty, 7) At this stage Smt.^ Tiwari^ learned counsel for the appellant sulanits that the sentenee awarded to the aceused be reduced to the perlod already undergone^ 8) ^fter hearing the parties on the question of sentence I am unable to eoncede to the requesfe made by the learnedcounsel for the appellant* The law provides for minlmzim 10 years jail sentence in case where the prosecutrix is below 12 years of agco Bven otherwise the accused has not brought any mitigating - 4 - circumstances on tbe record for reduction of the sentence. On the other hand it appears that the giri was treating the aecused as her brother and was having absolute confidence cm. N3®-^ If the person who was taken to be brother by the prose©utrix commitssuch an offence then the conduct of the accused leaves no room for exercising any lenienc^f^ I find no reason to Infeerfere^ The appeal deaerves t© toe and is acoordingly dismissedo Sd/- R.S. Garg Judge Z^oU^^ZUVl. Thakur< .{..,