DEVIPRASAD Vs. STATE OF M P

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 17.10.1998 passed by Additional Sessions Judge Durg, in Sessions Trial No. 205/1998 convicting the accused/appellant under Section 376(2)(g) IPC and sentencing him to undergo rigorous imprisonment for ten years with fine of Rs. 2000/-, plus default stipulations. Facts of the-case in brief are that on 10.4.1998 FIR Ex. P-1 was lodged by prosecutrix (PW-1) aged about 13 years alleging that on that day at about 10.30 p.m. she along with her brother Omprakash had gone to the house of the accused/appellant for watching TV. As her brother expressed the desire of sleeping, she came to her house and after dropping him back when she was again going to the house of the accused/appellant, on the way the accused/appellant caught hold of her and co-accused Hiramani shutting her mouth by one of his hands dragged her to the nearby courtyard of Ramkumar, made her lie down on the ground and then first co-accused Hiramani committed forcible sexual intercourse with her and then the accused/appellant also took his turn. While doing this act, both the accused persons had pressed her breasts and that on account of the sexual intercourse she was feeling acute pain and her private part was bleeding. She has alleged that accused persons had even threatened her of death in case she disclosed the incident to anyone. Based on this report, offences under Sections 376, 450/34 IPC were registered against the accused/appellant and co-accused Hiramani. Prosecutrix was medically examined by Dr. (Smt.) M. Pandey (PW-8) who gave her report Ex. P-17 stating that there was bleeding in and around the recent torn hymen, one finger entered vagina with difficulty and that for determination of age she was referred to radiologist. After completion of investigation, charge sheet was filed by the police on 25.4.1998 against the accused/appellant herein and the co-accused for the offences punishable under sections 376(2) (g) and 450/34 IPC. However, the Court, below framed the charge under Section 376(2) (g) IPC only.

(2.) So as to hold the accused persons guilty, prosecution has examined 08 witnesses in support of its case. Statements of the accused persons 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.) After hearing the parties, the trial Court has convicted and sentenced the accused/appellant as mentioned above in paragraph No. 1 of this judgment.