BHAN SINGH LODHI Vs. STATE OF M P

JUDGEMENT

(1.) APPELLANT, Bhan Singh Lodhi, the sole accused person in this case, has been convicted under Section 376 of the Indian Penal Code and sentenced to undergo ten years rigorous imprisonment and fine of Rs. 500/- or in default to undergo three months rigorous imprisonment by the impugned judgment dated 22-9-2001 passed in Sessions Trial No. 110/2000 by the Sessions Judge, Damoh. He has also been convicted under Section 506 Part II of the Indian Penal Code and sentenced to undergo one year rigorous imprisonment. Both the sentences are to run concurrently. He has been found guilty for committing an offence of rape with the prosecutrix, Malti Bai (P. W. 4), on 3-5-2000 at about 12 O'clock in the night in her house.

(2.) THE appellant is admittedly a disabled person since time immemorial. He is having paralysis on both the limbs and cannot stand/walk without support. He can only crawl in a sitting posture by means of his hands. In compliance of my order dated 8-10-2002, a medical report was submitted by the Medical Officer of Central Jail, Sagar, which also confirms the paralytic condition of the appellant. He was also produced in custody before me and I too found him totally incapable of committing the offence of rape on the prosecutrix Malti Bai (P. W. 4), who is a married, well-built, lady and was aged about 25 years on the date of incident. On seeing the appellant, I am of the firm opinion that if at all he could commit sexual intercourse with the prosecutrix, Malti Bai (P. W. 4), that could only be done with her active cooperation and consent.

(3.) ACCORDING to the prosecution, prosecutrix Malti Bai (P. W. 4) is married to Khuman Singh (P. W. 10) who is employed as a Chowkidar at a place which is about 50 kms. from their house. The appellant lives in the same locality and is virtually their neighbour. He is known to them and visits their house very often. It is alleged that on 3-5-2000, at about 12 O'clock in the night, while the prosecutrix (P. W. 4) was sleeping in the Verandah of her house and Kusum Bai (P. W. 11), her "jethani", was also sleeping about 5 to 6 feet away in the "angan", the appellant committed sexual intercourse with the prosecutrix (P. W. 4) without her consent. While committing sexual intercourse, the appellant had allegedly put his hand on her mouth to prevent her from shouting. The appellant, after committing sexual intercourse, threatened the prosecutrix (P. W. 4) for not disclosing the incident to anyone or else he would kill her, Prosecutrix (P. W. 4), after the act, is said to have shouted but, because of the noise of thresher, no one could hear her. Her husband, Khuman Singh (P. W. 10), suddenly came and saw the appellant by the side of prosecutrix (P. W. 4 ). Seeing them together, Khuman Singh (P. W. 10) lost his temper and gave beating to both, prosecutrix (P. W. 4) and the appellant. Thereafter, prosecutrix (P. W. 4) disclosed to him that the appellant committed rape on her while she was sleeping. She also disclosed the incident to her "jethani" Kusum Bai (P. W. 11 ). First Information Report (Ex. P-3) was lodged by the prosecutrix (P. W. 4) at Police Station, Nohta, District Damoh, on the following morning at 4:00 a. m. Her husband, Khuman Singh (P. W. 10), had accompanied her upto the police station.