The Commnr., Trade Tax, U.P vs M/S.Malkhan S.Subhash Chandra

2 The case of the prosecution is that in the forenoon of 14.01.2006 while the Appellant was guarding her crops, a person aged about 20-22 years wearing a shirt with red stripes and black trouser came. He called the Appellant by making a signal, whereupon she started running. He ran after her, caught her and after removing her undergarments committed sexual intercourse. He also bit the lip of the Appellant. She shouted for help which attracted the attention of three persons, namely, PWs 2, 4 and 6 (the names of these witnesses are not being given as one of them is the brother of the Appellant and they shall hereafter be referred to by their designation in the trial). PW-4 i.e. the brother of the Appellant ran for catching that person but was unable to catch him and the person ran away.

3. The reporting in respect of the aforesaid incident was immediately made by the Appellant in Patharia Police Station and FIR Ext.P-1 was registered under Section 376 IPC. In the first information report itself the Appellant had stated the complexion of the man to be "sanwla", that he was wearing shirt with red stripes and that he was unable to speak. She further stated that she would be able to identify that man. The Appellant was immediately sent for medical examination. PW-7 Dr. Vibha Sindur did the medical examination and found following features:

12. Furthermore, the appellant had gone to the extent of stating in her first reporting that she would be in a position to identify the offender and had given particulars regarding his identity. The clothes worn by the offender were identified by her when called upon to do so. In the circumstances there was nothing wrong or exceptional in identification by her of the accused in court. We find her testimony completely trustworthy and reliable. Consequently we hold that the case against Respondent No.1 stands proved. Since the trial court had found the age of the Appellant to be 10-13 years of age, we take the age to be on the maximum scale i.e. 13 years. In our considered view, the High Court was not justified in dismissing the revision. No other view was possible and the case therefore warrants interference by this Court. We accordingly allow the appeal and convict Respondent No.1 for having committed the offence under Section 376(1) IPC and sentence him to undergo imprisonment for seven years and also impose a fine of Rs.5,000/- which in its entirety shall be made over to the Appellant. In the event such fine is not deposited, Respondent No.1 shall undergo further sentence of simple imprisonment for six months. We, however, confirm the acquittal of Respondent No.1 for the offence under Section 3(2)(V) of the Act. Respondent No.1 shall be taken into custody forthwith to undergo the sentence as aforesaid.

.............................J. (Pinaki Chandra Ghose) .............................J. (Uday Umesh Lalit) New Delhi, April 10, 2015 ITEM NO.1D COURT NO.13 SECTION IIA (Corrected) S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Criminal Appeal No(s). 1581/2009 Ms. S Appellant(s) VERSUS SUNIL KUMAR & ANR. Respondent(s) Date : 10/04/2015 This appeal was called on for pronouncement of judgment today.

Hon'ble Mr. Justice Uday Umesh Lalit pronounced the reportable judgment of the Bench comprising Hon'ble Mr. Justice Pinaki Chandra Ghose and His Lordship.

The appeal is allowed in terms of the signed reportable judgment as follows:-