ASHOK KUMAR Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THIS appeal is directed against the impugned judgment and order dated 17.11.1998 passed by Fourth Additional Sessions Judge, Durg, in Sessions Trial No. 322 of 1995 convicting the accused/appellants for the offences punishable under Sections 376 (2) (g) and 440 IPC and sentencing each of them to undergo rigorous imprisonment for ten years and pay fine of Rs.5000 u/s 376 (2) (g) and rigorous imprisonment for five years and pay fine of Rs. 1000 u/s 440 plus default stipulations.

(2.) CASE of the prosecution in brief is that on 20.06.1995 at about 9.30 a.m. FIR Ex. P-11 was lodged by the prosecutrix (PW-5)- a married lady aged about 26 years alleging that on the previous night i.e. the intervening night of 19/20.06.1995 her husband had gone to some other village and she was sleeping along with her two daughters in her room. At about one O'clock in the night the accused/appellants entered into her room from the courtyard and accused Ashok gagged her mouth, took her nearby room and committed forcible sexual intercourse with her. Thereafter the co-accused Anil also committed rape upon her. She further alleged that when she switched on the light opening the door, the accused/appellants ran away form the spot saying that they would deal with her husband when he would return during the day. It has also been alleged that the prosecutrix could not raise any alarm as she was under fear. In the morning she informed about the incident to her maternal Aunt Jambai (PW-3) and the village Kotwar. Based on the above report lodged at the Police out post Anjora, F.I.R. Ex. P-17 was registered by P.S. Fulgoan, Durg and after investigation challan was filed on 28.07.1995.

(3.) COUNSEL for the appellants submits that the accused/appellants have been falsely implicated in this case because there was some dispute between the children of the accused Anil and the prosecutrix. She submits that a very improbable story has been put forth by the prosecution and the accused/appellants have been unnecessarily implicated in the present case. She further submits that the medical report of the prosecutrix does not support her case as no injury whatsoever has been found on her body including her private part. She further submits that in the case of gang rape there is every likelihood that some injury will be caused to the prosecutrix. She submits that the prosecutrix did not raise any alarm at the time of alleged incident though undoubtedly her two daughters were sleeping along with her and the incident had taken place in the dense locality where number of houses are situated.