KAMAL Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) APPELLANT Kamal has filed this appeal against the judgment and findings dated 20th February, 1992 passed by IV Additional Sessions Judge, Dewas (Smt. Sharmishtha Dave) thereby convicting the appellant for the offence punishable under Sections 376 and 323 of IPC in Session Trial No. 5/99 and sentencing him 7 years RI and 6 months RI in default, fine of Rs. 500/-respectively.

(2.) THE prosecution case in nutshell is that on 5-12-89 when prosecutrix Pavitrabai (P. W. 1) had gone to the field for grazing cattle alongwith her cousin sister Rajshri (P. W. 2), appellant Kamal was grazing cattle at nearby place. It is alleged by the prosecution that Rajshri was assaulted by lathi and therefore she ran away from the place. Thereafter, appellant Kamal caught hold of the prosecutrix and did forcible intercourse with her as well as unnatural act simultaneously. When the prosecutrix was raped by the appellant, at the same time, Pritam uncle of the prosecutrix came there, on seeing him, the appellant tried to run away from the place of the incident but immediately, thereafter, Sarpanch Vikram reached there in a jeep and rescued the appellant. Prosecutrix Pavitrabai (P. W. 1) came to her house and narrated the incident to her mother and father. They went to Police Station and lodged report Ex. P-4. The prosecutrix was sent for medical examination and Dr. Smt. Vidya Welankar (P. W. 9) medically examined her. Medical report is Ex. P-3-A. Prosecutrix was also sent for ossification test and Dr. Prakash Lakkad (P. W. 7) after her examination gave a report Ex. P-2 about her age. According to this report, prosecutrix was about 14-15 years of age. The Investigating Officer Ravidutta Sharma (P. W. 10) A. S. I. after recording the statements of the prosecution witnesses, seizure of cloths and slide of vaginal swab of prosecutrix. filed a charge-sheet before the Committal Court.

(3.) THE Trial Court framed charges under Sections 376, 323 and 377, IPC against the appellant. The prosecutrix was examined in Court on 22-2-1992, it appears that additional charge for the offence punishable under Section 377, IPC was framed by the Trial Court on 22-1-1992 after the examination of the prosecutrix as witness in Court but in the order sheet dated 22-1-1992, the Trial Court, nowhere has disclosed the fact of framing of additional charge for the offence punishable under Section 377, IPC. The Trial Court ought to have specifically mentioned this fact in the order sheet with' reasons as to why framing of charge under Section 377, IPC was necessitated.