RAJKUMAR AND ANOTHER Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This appeal arises out of the judgment of conviction and order of sentence dated 25.1.2001 passed by the Special Judge, Jashpurnagar in Special Case No. 12/2000 convicting the accused/appellants under Sections 363/34, 366/34, 376 of the Indian Penal Code (for short "the IPC") and Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short "the Act of 1989") sentencing each of them to undergo RI for 4 years & fine of Rs.1,000/-; RI for 4 years & fine of Rs.1,000/-; RI for 4 years & fine of Rs.1.000/-and RI for 6 months with default stipulations respectively.

(2.) As per prosecution case, on 14.2.2000 FIR (Ex.P-3) was lodged by Ramprasad (PW-4), father of prosecutrix, alleging in it that on 13.2.2000 at about 8.00 p.m. when he and his wife returned from Bageecha weekly market, the prosecutrix (PW-1) was not found in the house and during the course of search, Patibai (PW-2) informed that accused/appellant No.1 had taken the prosecutrix with him on the pretext of marrying her. Thereafter he searched the prosecutrix in the village but could not trace her whereabouts. Based on this report the offence under Sections 363 & 366 of IPC read with Section 3 (1) (xii) of the Act of 1989 was registered against accused/appellant No.1. Further case of the prosecution is that on 14.2.2000 the prosecutrix returned home and her case diary statement on 15.2.2000 wherein she has alleged that on 13.2.2000 the accused/appellants came to her house, enquired about her parents and finding her all alone in the house, forcible took her to the house of appellant No.2 and kept her in the loft and in the night accused/appellant No.1 committed sexual intercourse with her. She has further stated that on coming to know about lodgement of report, the accused/appellants immediately set her free. The prosecutrix was medically examined by Dr. Vinodini Bakhia (PW-8) on 15.2.2000 vide Ex.P-8 who opined that no definite opinion regarding rape can be given as the prosecutrix is habitual to sexual intercourse. Accused/appellant No.1 was also medically examined vide Ex.P-7 by Dr. Christ Dular Bakhla (PW-7) and he opined that he is capable of performing sexual intercourse.

(3.) After completion of investigation, charge sheet was filed against the accused/appellants for the offence punishable under Sections 376, 363, 366 & 368 of the IPC & Section 3 (1) (x) & (xii) of the Act of 1989, however, the Court below framed charges under Sections 363, 366 r/w 34 & 376 of the IPC and Section 3 (1) (xii) of the Act of 1989 against them.