DILIP Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) Mohan and Dilip, the two accused-appellants have been held guilty of an offence punishable under Section 376(2)(g) of Indian Penal Code and sentenced to rigorous imprisonment for 10 years and a fine of Rs. 2000/- each by Sessions Judge, Bilaspur of Madhya Pradesh. Their appeal has been dismissed by the High Court maintaining the conviction as also the sentence. This is an appeal by special leave.

(2.) The prosecutrix who was aged about 16 years on 5-3-1996, the date of the incident, had lost her parents and therefore was living with her maternal uncle and aunt. On 5-3-1996 the village people were busy, celebrating Holi festival. According to prosecution at about 2 p.m. the prosecutrix was alone in her house when the two accused approached her and enquired where was her maternal uncle. On being told that he had gone in the village and was not in the house, the accused Mohan lifted her and took her inside the room. The accused Dilip followed in and closed the door from inside. The two accused threw the prosecutrix on ground, lifted her frock, removed her underwear and forcibly committed sexual intercourse with her. When the accused Mohan was committing rape, accused Dilip was keeping her mouth shut. Thereafter, accused Dilip raped the prosecutrix and at that time the accused Mohan kept her mouth shut. The two accused left the prosecutrix in a semi-conscious state. On re-gaining her senses the prosecutrix took water and went to her maternal aunt PW3 and narrated her the incident. Her maternal uncle was away from the village and returned the next day. On 6-3-1996, at about 4 p.m., the prosecutrix accompanied by her maternal uncle went to the police station situated at a distance of about 3 kilometres and lodged FIR of the incident whereupon an offence under Sections 376/34 IPC was registered and investigation commenced.

(3.) On 7-3-1996 at 6.30 p.m. the prosecutrix was examined by Dr. (Mrs.) Jitpure. No marks of violence were found on any part of the body of the prosecutrix including her private parts. Her hymen was torn. Vagina admitted one finger easily. There were no tears present in the vagina. Dr. Jitpure opined that no definite opinion could be given about any recent sexual intercourse having taken place with the prosecutrix which could, if at all, be confirmed by chemical examination of vaginal smear slide which was prepared, sealed and handed over to the constable accompanying the prosecutrix. According to Dr. Jitpure, the prosecutrix appeared to be carrying pregnancy of about 6 weeks and for confirmation thereof she was referred to senior gynaecologist. During cross-examination, Dr. Jitpure stated that the hymen of the prosecutrix was old torn, may be of 6 to 7 months before. In her opinion the prosecutrix was used to sexual intercourse.