SHIV GOVIND Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) Shiv Govind, the appellant, has obtained Special leave to Appeal against only that part of the Judgment and Order of the High Court of Madhya Pradesh by which his sentence of one year's Rigorous Imprisonment, passed by the Additional Sessions Judge, Indore, upon a conviction under Section 366, Indian Penal Code, was enhanced to seven years' Rigorous Imprisonment and a fine of Rupees 100/-, and, in default of payment of fine, to three months' further rigorous imprisonment. The appellant, aged about 20 years at the time of the alleged offence of 9th of August, 1969, was the youngest of the three persons who were jointly charged and tried for offences punishable under Sections 366 and 354, I. P. C.

(2.) The prosecution case was:Kumari Seema, a girl below 18 years of age, was offered a lift on his bicycle by the accused, Kamal Singh, aged 30 years, while she was returning to her home from her School on 9th August 1969. The girl hesitated. But, as she reposed confidence in Kamal Singh, whom she looked upon as her uncle, she accepted the offer. Kamal Singh took Kumari Seema on his bicycle to the Regal Cinema where she part-took of some refreshment ordered by Kamal Singh. Meanwhile, the appellant Shiv Govind and the accused Punam, aged 26, arrived in a car. Kamal Singh asked Kumari Seema to go with the two younger men in their car. Seema refused. Then, Kamal Singh asked her to go on his bicycle to Yashwant Talkies. She complied with this request. At this Cinema, Kamal Singh deposited his cycle at the Cycle Stand. The appellant Shiv Govind and his companion Punam had followed in their car. The three men succeeded in persuading Seema, despite her initial refusal, to sit in the car and to go for a short pleasure trip in it on the definite assurance that she will soon be reached home. After the girl had sat in the car she was driven to a place called Mandow, a number of miles away from Indore, and was made to alight at a tourist's bungalow. There two rooms were engaged by the accused. Kamal Singh occupied one of the two rooms and the girl was closeted in the other room with the appellant and his companion Punam, who were both drunk. One of the two youngmen caught hold of the hands of the girl while the other tried to undress her with the object of raping her. Kumari Seema, at this point, feigned sudden indisposition so that the two young men had to bring her out into the gallery for fresh air. She managed to escape while the accused went inside to fetch some water for her. She rushed into the house of one Babulal Kamdar and complained to him about the incident, This led to a communication of information of the offences to the Police which went to the tourist's bungalow and arrested the three accused who were brought the Police Station Nalcha where a First Information Report was lodged.

(3.) The Trial Court had examined the evidence given in support of the case stated above. This included medical evidence on the question of the age of the girl, because, while the prosecution alleged that she was below 16 years of age, the accused pleaded that she was above 18 years of age. Evidently, the case of the accused was that Kumari Seema was a consenting party to whatever took place. Although the girl was attending a School, the entry of her age in the School Register was not disclosed. Despite some discrepancies in the evidence relating to the age of the girl, the trial Court came to the conclusion that it was between 16 to 19years. It relied mainly on expert evidence of Doctors who had used the ossification test