JUDGMENT
S.K. Kulshrestha, J.
1. Aggrieved by his conviction for offence under Section 376(2)(e) of the IPC and the sentence of imprisonment for life and fine of Rs. 500/- awarded thereunder by the learned Second Additional Sessions Judge, East Nimar Khandwa, vide judgment dated 30- 12-1998 passed in S.T. No. 211/98, the appellant has appealed to this Court against the said judgment.
2. The facts of the case lie in a narrow compass. It is alleged that on 24-8-1998 at about 10 o’clock, the prosecutrix had gone to work in the field and after spending an hour there she had gone to cull fuel wood in the jungle. While she was picking fuel wood, the accused approached and inquired from her as to whether she had seen his buffalo. On being told that she had not, the accused caught hold of her hand and stated that he wanted to have intercourse with her. The prosecutrix refused but the accused muffled her mouth. She tried to run away but fell down with the result she sustained injury on her knee. The accused thereafter picked her up and took her to a ‘Nalla’ where he committed sexual intercourse with her and intimidated that if she revealed it to anyone, he would kill her. In the incident her bangles were broken and blouse was torn. She came to the village and narrated the incident to her husband. With him, she went to Police Station Bheekangaon but she was informed that the place where the incident occurred was within the jurisdiction of Police Station Dhangaon. The prosecutrix therefore went to Dhangaon Police Station along with her husband, Village Kotwar and Sarpanch and lodged report on the basis whereof offence under Sections 376 and 506 of the IPC was registered. She was forwarded for medical examination. The spot map was prepared and after completion of investigation, the accused was prosecuted.
3. The accused, on being charged under Sections 376(2) and 506 Part II of the IPC, denied having committed any offence. The learned Additional Sessions Judge, however, found him guilty and convicted and sentenced him as stated hereinabove. It is against this conviction that the present appeal has been filed.
4. In order to prove its case, the prosecution examined six witnesses. In regard to the incident, the prosecutrix has been examined as P.W. 2. She has described as to how the accused had approached her while she was alone and caught hold of her and when she had extricated herself from the clutches of the accused and tried to run away she had fallen down and got injured. It is at this juncture that the accused once again caught hold of her and succeeded in sexually ravishing her. She has also deposed that she went to the field and, thereafter, to her house where she narrated the event to her husband and, thereafter, the matter was reported to the police. She has confirmed having lodged FIR Ex. P-4. P.W. 3 Chaitram corroborates the version of the prosecutrix. He has stated that his wife had come to the house and narrated the felony of the accused. The prosecutrix was sent for medical examination to P.W. 1 Dr. Smt. Meena Verma who found injury on her knee. The said injury also corroborated the version of the prosecutrix. Thus, the evidence of the prosecutrix as corroborated by the evidence of her husband Chaitram and the medical evidence leaves no manner of doubt that finding the prosecutrix alone, the accused advanced towards her and forcibly committed sexual intercourse with her without her consent and against her will.
5. The contention of the learned Senior Counsel, however, is that even if the prosecution case is believed, there is no evidence to suggest that accused at that time knew that she was pregnant and with this knowledge he committed sexual intercourse with her.
6. It has come in the evidence of Dr. Smt. Meena Verma that at the time of the examination of the prosecutrix she was carrying pregnancy of 14 to 16 weeks. Section 376(2)(e) of the IPC provides that whoever commits rape on a woman knowing her to be pregnant shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine. Learned Counsel contends, and rightly so that not only the prosecutrix should have been pregnant at the time of the commission of the offence, the offender should have knowledge about it and despite that knowledge he should have committed the offence and then only the said provision would be attracted.
7. We have examined the evidence. While it is true that the medical evidence clearly establishes that the prosecutrix was pregnant at the time the offence was committed by the accused, there is nothing to suggest that accused had knowledge that she was pregnant. Section 376(2)(e) contemplates commission of the offence on a woman knowing her to be pregnant. The prosecution has not been able to establish that accused had knowledge about the pregnancy of the prosecutrix. The case of the accused would, therefore, fall within Sub-section (1) of Section 376 of the IPC.
8. In the result, this appeal is partly allowed. The conviction of the appellant under Section 376(2)(e) of the IPC and the sentence awarded thereunder is set aside and he is, instead, found guilty under Section 376(1) of the IPC and sentenced to RI for seven years. If the accused has already undergone the sentence now awarded to him, he be released forthwith if not required in connection with any other matter.