SANTOSH KUMAR Vs. STATE OF M P

JUDGEMENT

(1.) Santosh Kumar has preferred this appeal, by special leave, against the judgment and order dated 13.12.2004 of Madhya Pradesh High Court, by which the appeal filed by him was dismissed and the judgment and order dated 23.10.1989 of Sessions Judge, Raisen, convicting him under Section 376(2)(g) IPC and imposing the sentence of 10 years RI and a fine of Rs.500/- and in default to undergo six months RI was affirmed.

(2.) The case of the prosecution, in brief, is that the prosecutrix Halki Bai, who was resident of village Modakpur had been deserted by her husband and in order to maintain herself she was doing some work as labour. She came by a bus to Silvani in search of work in the night of 20.5.1985. After she had boarded the bus the conductor Munim Mishra enquired where she was going and when she informed him that she was going to Silvani in search of some work, he did not ask for money for issuing to her a ticket. The bus reached Silvani at about 10.00 p.m. and when she was trying to get down, Munim Mishra told her that she may sleep in the bus itself rather than going anywhere in the night and in the morning he would arrange some work for her. Halki Bai then slept on the rear seat of the bus. At about midnight, when all the shops at the bus-stand had closed, the driver of the bus, viz. Santosh Kumar (appellant) pressed her breasts and started removing her dhoti which she was wearing. When she tried to raise an alarm, Munim Mishra caught hold of her hands and also gagged her and then the appellant Santosh Kumar ravished her. Thereafter, Santosh Kumar caught hold of her hands and Munim Mishra ravished her. Hearing her alarm, three constables who were on patrol duty and some others came near the bus, but both the accused managed to run away. The policemen brought Halki Bai to P.S. Silvani, where she lodged the FIR of the incident at 1.00 a.m. on 21.5.1985. Halki Bai was sent for medical examination where PW.3 Dr. Z. Fezi examined her at 2.00 a.m. and prepared a medical examination report which is Ex. P-8. After completion of the investigation, charge sheet was submitted against both the accused viz. Santosh Kumar (appellant) and Munim Mishra.

(3.) The learned Sessions Judge framed charge under Section 376 IPC against both the accused, who pleaded not guilty and claimed to be tried. In order to establish its case, the prosecution examined 10 witnesses and filed some documentary evidence. The appellant and co-accused Munim Mishra in their statements under Section 313 Cr.P.C. denied the prosecution case and examined two witnesses in their defence. The learned Sessions Judge believed the case of the prosecution and convicted and sentenced both the accused as stated earlier. The appeal preferred by the accused was dismissed by the High Court by the judgment and order dated 13.12.2004.