RAJESH GUPTA Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THIS judgment shall also dispose of Criminal Appeal No.2733/ 2000 (Raju Vs State of Madhya Pradesh). Appellants. Rajesh and Raju, the accused persons in this case, have been convicted under Section 376(2) (g) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and a fine of Rs. 1,000/ - each and in default of payment of fine to further undergo three months rigorous imprisonment by the IVth Additional Sessions Judge to the Court of Sessions, Judge, Sagar, vide judgment dated 21.9.2000 passed in Sessions Trial No. 140/2000. They were also prosecuted for charges under Sections 323 and 506 Part II of the Indian Penal Code and have been acquitted of the said charges.

(2.) BRIEFLY stated the facts giving rise to these appeals are as under; - Prosecutrix, Ku. Maya (P.W.6), accused persons, Rajesh and Raju, and the material witnesses belong to Gopalganj locality within the jurisdiction of Police Station Gopalganj of Sagar town. The prosecutrix Ku. Maya (P.W.6) works as maid servant in different houses of the Gopalganj locality. Her date of birth is 1.7.85 and as such she was less than 16 years on the date of incident. On 1.3.2000 at about 6.30 p.m., while she was returning to her house after finishing her work, accused persons, Rajesh and Raju, met her on the way and told her that her parents have called at the house of Prem Narayan Pataskar (P.W.12) where they are working on some order. Thereafter, both of them made her sit in an auto rickshaw and took her to a room which was taken on rent by them from Prem Narayan Pataskar (P.W.12). In the auto rickshaw, the accused persons, Rajesh and Raju, had threatened Ku. Maya (P.W.6) with a knife. If the room, both the accused persons repeatedly committed rape on her one after another after bolting the door from inside. They confined the prosecutrix Ku. Maya (P.W.6) in the room upto 9:30 p.m. and thereafter when she wept the accused persons beat her and caused injuries to her. After sometime, they left Ku. Maya (P.W.6) in a lane a little away and ran away. She narrated the incident to her parents, Paramlal Raikwar (P.W.2) and Smt. Guddi Raikwar (P.W.3). Thereafter, she immediately lodged the first Information Report, Ex.P2, at 10:30 p.m. at Police Station, Gopalganj. She was sent for medical examination. Dr. Saroj Bhuria (P.W. 1) examined her and found her hymen torn. There was an injury around hymen and the area was inflamed. Her report is Ex.P1 in which she confirmed that there was enough evidence of recent sexual activity with Ku. Maya (P.W.6). Ku. Maya (P.W.6) was also examined by Dr. R.K. Khare (P.W.16). He found as many as three injuries on her person including an (sic) wound of 1/2 cm. X2 cm. over base of nose caused by hard and sharp cutting edge object. After investigation the charge sheet was filed.

(3.) THE accused persons pleaded not guilty. Their defence was that they have been falsely implicated. According to accused Raju, he was not present at the place of incident. The trial court has held that Ku. Maya (P.W.6) was 14 years and 8 months of age on the date of incident and the accused persons had sexual intercourse with her without her consent. The accused persons have been convicted and sentenced as stated at the outset. The conviction of the accused persons, Rajesh and Raju, have been challenged on the ground that the trial court ought to have disbelieved the evidence of Ku. Maya (RW.6) as she had an affair with the accused Raju and hence was a consenting party. It has also been asserted that the trial court committed an illegality in holding that Ku. Maya (RW.6) was less than 16 years of age.