JOHN Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) Since the aforementioned two appeals arise out of the same judgment and order dated 27-8-1996 passed by Additional Sessions Judge Durg, in Sessions Trial No. 281/1995 convicting the accused/ appellants under Section 376 (2) (g), IPC and sentencing each of them to undergo rigorous imprisonment for ten years and pay fine of Rs. 1000/-, in default of payment of fine to further undergo rigorous imprisonment for three months, they are disposed of by this common judgment.

(2.) Case of the prosecution in brief is that on 30-3-1994 FIR Ex. P-3 was lodged by the prosecutrix (PW 4-A) aged about 14 years at the relevant time alleging that on 29-3-1994 at about 8 p.m. when she was returning after answering the call of nature from behind the fences of one Jhaduram, accused / appellant Bhagat came there, caught hold of her hand, asked her to accompany him to a nearby barren field and on refusal by her, he slapped her twice and threatened to kill her in case she raised cries. Thereafter, it is alleged that he gagged her mouth with the handkerchief, lifted her away near the beshram shrubs, threw her down and after removing her salwar and underwear committed forcible sexual intercourse with her and when she tried to raise an alarm, he gave two-three slaps to her. It is further alleged that after the act was over, the accused/ appellant was leaving the spot with her underwear and salwar but when she started weeping, he put the same back and ran away. Thereafter, she went to her house and narrated the incident to her maternal aunt, one Jhaduram (PW-5) and Samari Bai (not examined) and then fell asleep. It is the further case of the prosecution that as father of the prosecutrix had gone to her sister's house, the report could not be lodged on the same day and it was lodged on the next day after he got back there from. Based on this FIR, offence u/S. 376, IPC was registered against accused/appellant Bhagat. On 31-3-1994, statement of the prosecutrix under Section 161, Cr. P. C. was recorded in which she has alleged that on the date of incident at about 8 p.m. she had gone to answer the call of nature, accused Palu, Kanahiya (juvenile), Radho and John were cleaning their teeth near a bore well and while getting back as soon as she reached near the said bore well, all four lifted her away near the beshram shrubs where she was subjected to forcible sexual intercourse first by Palu. then by accused Kanhaiya (juvenile), then by accused John and then by accused Radho and when she tried to raise alarm, all of them had threatened to kill her. It is alleged that her salwar and underwear were removed by accused John and rest three had held her. While leaving the spot after their act was over, all the four had threatened her to do away with in case she lodged a report naming them. It is alleged that in the incident, her bangles were also broken. She went on alleging that after the four accused i.e. Palu, Kanahiya (juvenile), Radho and John had left the place of occurrence and when she was going to her house, accused/appellant-Bhagat who was standing near the bore well, asked her to accompany him to the nearby barren field and on refusal by her he gave her two slaps, gagged her mouth with the handkerchief, took her near the beshram shrubs, threw her on the ground and after removing her underwear and salwar committed forcible sexual intercourse with her. When she started weeping, he gave her two-three slaps and started leaving the spot with her under-wear and salwar but when she started weeping he left the same and went away. It is alleged that in the incident her bangles were broken and she had sustained injuries on her cheeks and left wrist. It is alleged that when Jhaduram (PW-5) and one Kanti asked ac-cused Palu, Kanahiya (juvenile), Radho and John as to why they had ravished the prosecutrix, they begged pardon, and then after reaching home she fell asleep and on the next day when her father got back, she narrated the entire incident to him and then the report was lodged. Subsequently, on 5-4-1994 her statement under Section 164, Cr. P. C. was recorded in which it is alleged that on the date of incident at about 8 p.m. when she was returning after answering the call of nature, near a bore well accused-Bhagat met her and lifted her away. It is further alleged that on alarm being raised by her, he inserted a piece of cloth in her mouth and took her near beshram shrubs where accused Palu, Kanahiya (juvenile), Radho and John were already present. Then after being undressed by accused Bhagat she was subjected to forcible sexual intercourse by all of them one after another. It is alleged that first she was subjected to rape by accused John, then by accused Kanhaiya, then by accused Radho, then by accused Palu and then by accused Bhagat. After investigation, challan was filed by the police on 16-4-1994 for the offence under Section 376(2)(g), IPC against all the accused persons include juvenile Kanhaiya.

(3.) In order to establish the guilt of the accused /appellants the prosecution has examined 9 witnesses. Statements of the accused /appellants were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case.