MANOJ KUMAR Vs. STATE OF M P

JUDGEMENT

(1.) These appeals are directed against the judgment of covnviction and order of sentence dated 1st of December 1999 passed in S.T. No. 119/1998 by the Second Addl. Sessions Judge, Raigarh, whereby the said Court convicted the appellants u/s 376/34 I.P.C. and sentenced them to undergo R.I. for 10 years and to pay a fine of Rs. 5000/-, in default of payment of fine to further undergo R.1. for one year.

(2.) The brief facts are that the appellants and the prosecutrix namely Motiwati (P.W.5) are residents of village Malda. On 04.2.1998, some Drama show was going on in the village. The show continued till late night. At about 3 a.m., the prosecutrix and her friend namely Ku. Arti were returning to their house after the show was over. Arti's house was first at point on the way, therefore, she went to her house. The allegations are that when the prosecutrix reached in front of the doors of her house and was calling her mother, the appellant Manoj came over there and forcibly dragged the prosecutrix to a nearby open field of one Rajaram. He undressed himself and thereafter, he put off the underwear of the prosecutrix and committed sexual intercourse against her. Further allegations are that when he was committing sexual intercourse, two other appellants, Vipin and Dethari came over there and warned them that the brother-in- law (Jija) of the prosecutrix is coming towards them, on which, appellant-Manoj and prosecutrix both took another way and the prosecutrix was left by this appellant at her house from the said way. On 05.2.1998, the prosecutrix disclosed the story to her grand mother Parvati (P.W.9) and she also disclosed story to her mother as also father namely Damodar (P.W.4), who narrated the story to Patel of the village Sidar Singh. Sidar Singh said that he will ask the accused persons, but when nothing was done, then the prosecutrix along with her father Damodar (P.W.4), brother Hemant and brother-in-law (Jija) Shivnath (P.W.7) went to the Police station on 7.2.1998 and a report Ex.P.2 was lodged. The prosecutrix was sent for medical examination where she was examined by Dr. Arti Nande (P.W.13) who also advised for X-Ray for ascertaining the age of the prosecutrix. Dr. M.D. Joshi (P.W.12) has conducted the Ossification test of the prosecutrix and has given his report Ex.P. 10, in which she was found to be in between 15-16 years. Though a Photostat copy of school certificate was also seized in this case, but the same was not proved on record. On this evidence, the charge sheet was filed and after conclusion of the trial, the accused persons were convicted as aforementioned.

(3.) The learned Sessions Judge recorded the finding that the prosecutrix was below 16 years of age on the date of incident and she was subjected to forcible sexual intercourse by appellant Manoj and two other appellants had also assisted him in the manner as they had informed him, during the course of sexual intercourse, that brother-in-law (Jija) of the prosecutrix is coming towards them.