HIRALAL Vs. STATE OF M P

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 26-11-90 in Sessions Trial No. 130/90 by the learned II Additional Sessions Judge, neemuch, who was pleased to convict the appellant of the offence under section 376, IPC and sentence him to undergo RI for 7 years and fine of Rs. 200/- in default of payment of fine further RI for two months. He was also pleased to convict the appellant of the offences under Sections 363 and 366, ipc and sentence him to undergo RI for 3 years and fine of Rs. 200/- on each count, in default of payment of fine, further RI for two months on each count.

(2.) THE brief facts giving rise to this appeal are that on the date of incident ie. , on 11-1-1990, Kalabai was residing with her brother Mangilal in village Pipalya Vyas. Kalabai was married two years before from the date of incident but was residing with her brother. The appellant-accused was a resident of village Sakarani and used to sell milk in the area where the prosecutrix was residing. At about 7 O'clock in the evening on the date of incident when Kalabai had gone to answer the call of nature the accused came and called her and she went to him. According to her he caught hold of her hand and showed knife saying that if she raises alarm he would cut her with the knife. He took her to village Sakarani. It is said that on way also the accused threatened her. On way between Sakarani and Sirkhedi the accused asked her to stay on the road by threatening her and after sometime he returned on a motorcycle alongwith one Munna, who was known to the prosecutrix. It is stated that Munna also showed knife to the prosecutrix and she was asked to put off her ornaments. She was taken to Ratlam on motorcycle by them. She was kept in a Dharamshala (Inn) for about 2 days. It is stated that the appellant-accused committed rape on her during the night. It is stated that after about 2 days she was taken towards Indore, when near Badnavar they were apprehended by the police and were brought to the police station. Thus, the accused was charged for enticing one minor girl Kalabai from out of the custody of her brother for the purpose of having illicit intercourse with her.

(3.) ON the facts as stated Mrs. Sharma argued that looking to the evidence of the girl more particularly in the light of the cross-examination and the findings of the doctor, which does not suggest any force, the accused should be acquitted as even if the prosecutrix is believed it was a case of consent. She argued that the story given by the prosecutrix Kalabai P. W. 4 cannot invoke confidence. The story given by her is a tell-tale. The learned counsel also argued that the objective proof like the medical certificate and the serological tests of the clothes of the prosecutrix do not support the case of rape. She argued that absence of semen on the clothes of the prosecutrix suggests that there was no sexual violence or intercourse with the prosecutrix. She said that find of blood could only be ascribed to be menstrual bleeding as the evidence of doctor S. B. Sharma P. W. 5 does not support the forcible intercourse but the blood is explained by the doctor to be menstrual blood. She suggested that the way in which the prosecutrix and the appellant are said to have been apprehended on a motorcycle from between Ratlam and Indore at Badnavar does not suggest any offence, however, the story does not seem to be free from doubt and in any case a story of consent. The learned counsel argued that nowhere any of the witnesses say that the accused had enticed away the prosecutrix out of the guardianship of the brother more particularly when she was already married as per the evidence itself. She argued that the story of the prosecutrix that she was told to come and she went does not suggest any allurement on the part of the appellant nor does she say that she went to the accused because of showing the knife meaning thereby any threat or coercion. In such circumstances she argued that the accused is entitled to acquittal and in any case the benefit of doubt since the story does not make out any offence beyond reasonable doubt.