KAPOOR Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 9-8-1990 delivered by the IIIrd Additional Sessions Judge, raipur in Sessions Trial No. 167/89, whereby the appellant was convicted under section 376 of the Indian Penal Code and sentenced to rigorous imprisonment for 7 years and also fine of Rs. 100/- and in default to undergo additional rigorous imprisonment for 1 months.

(2.) BRIEFLY stated the prosecution story is that on 14-4-1989 at about 7. 30 p. m. , the prosecutrix had gone to the Sherha field to attend the call of nature. The appellant came there and expressed desire to have sexual intercourse with her. The prosecutrix abused him, whereupon the appellant dragged her and laying her on the bund committed rape on her. On hearing shouts of the prosecutrix, p. W. 5, Bahruram, P. W. 3 and jhanaklal, P. W. 7, who were present at the nearby tank rushed to the spot and saw the appellant committing rape. Jhanaklal, P. W. 7 held the appellant by his hand and separated him from the prosecutrix. The appellant shouted for Domar Singh, D. W. 1, who came to the spot. The appellant ran away thereafter. F. I. R. was lodged by the prosecutrix at Police Station Mandir Hasaud at 2. 30 a. m. on 15-4-1989 vide Ex. P-6. On medical examination, Dr. Bhagirathi Joshi, p. W. 6 did not find any injury in the genitalia of the prosecutrix or externally on her body. The appellant, on being examined by dr. K. Shanker found that he was capable of performing sexual intercourse and smegma was absent on his glans penis. The chaddi worn by the appellant, the vaginal slide of the prosecutrix prepared by Dr. Bhagirathi Joshi and the petticoat of the prosecutrix, which were seized by the police, were sent for chemical analysis to the forensic Science Laboratory, Sagar, which opined vide Ex. P-14 that seminal stains or spermatozoa were not found on the above articles. After completion of investigation, the appellant was prosecuted under Section 376 of the Indian Penal Code.

(3.) THE appellant abjured the guilt. The prosecution examined as many as 11 witnesses. In his examination under Section 313 of the Code of Criminal Procedure, the appellant pleaded false implication and examined Domar Singh, D. W. 1 and Budharu, d. W. 2 in defence. Domar Singh, D. W. 1 admitted that on the date, time and place of occurrence, Jhanaklal, P. W. 7 and bahruram, P. W. 3 had caught hold of the appellant and asked him why he had outraged the modesty of the prosecutrix.