RAMKUMAR AND ANOTHER Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THIS appeal has been preferred against the judgment and order dated 26.2.1998 passed by Additional Sessions Judge Jashpur Nagar in Sessions Trial No. 26/1998 convicting the accused/appellants for the offence punishable under Sections 366 and 376(2)(g) IPC and sentencing each of them to undergo RI for five years and pay fine of Rs. 500/ - u/s 366 and R1 for ten years with fine of Rs. 500/ - u/s 376(2)(g) IPC, plus default stipulations. Facts of the case in brief are that on 15.11.1997 FIR Ex. P -1 was lodged by the prosecutrix (PW -1) aged about 16 years at the relevant time alleging that on 14.11.1997 at about 10 p.m. she along with her uncle Changluram, brother Anandram, Jaisingh and Dhanmati had gone to enjoy fair held in some other village. Allegedly, while returning to her village in the company of those persons, Jaisingh and Anandram again got back to fair to purchase certain articles and when she along with her uncle Changluram and friend Dhanmati was sitting on a rock waiting those two persons to get back from the fair, three persons came there from fair side and started asking certain obscene questions from them on which her uncle told them that they were waiting for their colleagues who had gone to the fair for purchasing certain article Thereafter, two boys slapped her uncle Changluram who then left their company out of fear and at the same time those very boys dragged her towards the jungle and in spite of protest being made by her, they did not leave her. Both the boys then threw her on the ground and committed forcible sexual intercourse with her one after the other on account of which she was feeling pain in her private part. It is further alleged that after commission of offence, the accused/appellants had threatened her of dire consequences if she disclosed the incident to anyone. Subsequently, the prosecutrix returned home and disclosed the entire incident to her sister -in -law and then after arrival of her parents she informed about the same to her mother also. It is further alleged that the prosecutrix then accompanied her mother towards the fair side and on the way in a betel shop both the accused/appellants were standing who were identified by her and then the report was lodged. Based on this report, offence under Section 376 /34 IPC was registered against the appellants. Prosecutrix was medically examined on 18.11.1997 by Dr. (Smt.) J. Minj (PW -10) and after completion of investigation, charge -sheet was filed on 12.12.1997 for the offence under Section 376(2)(g) IPC. Court below however framed the charge against them under Sections 363, 366 read with 34 and 376(2)(g) IPC.

(2.) IN support of its case the prosecution has examined 15 witnesses. Statements of the accused/appellants were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charge levelled against them and pleaded their innocence and false implication in the case.

(3.) HEARD counsel for the parties and perused the material available on record.