DETHARI Vs. STATE OF M.P

JUDGEMENT

(1.) THESE appeals are directed against the judgment of conviction 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 under Section 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.I. for one year.

(2.) THE brief facts are that the Appellants and the prosecutor 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 prosecutor 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 prosecutor reached in front of the doors of her house and was calling her mother, the Appellant Manoj came over there and forcibly dragged the prosecutor to a nearby open field of one Rajaram. He undressed himself and thereafter, he put off the underwear of the prosecutor 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 prosecutor is coming towards them, on which, Appellant- Manoj and prosecutor both took another way and the prosecutor was left by this Appellant at her house from the said way. On 05.2.1998, the prosecutor 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 prosecutor 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 prosecutor 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 prosecutor. Dr. M.D. Joshi (P.W. 12) has conducted the Ossification test of the prosecutor 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.) LEARNED Counsel for the Appellant Manoj argued that the prosecution has failed to prove that the prosecutor was below 16 years of age on the date of incident. He also argued that in the facts and circumstances of the case, the matter appears to be one of consent between the prosecutor and this Appellant. About the other two Appellants, learned respective counsel argued that there is absolutely no evidence against them and they have been convicted only on the evidence that they had warned the prosecutor and Manoj that her brother-in-law (Jija) is coming towards the field where they were performing sexual intercourse.