HARI SINGH S/O GANGARAM AGRICULTURIST, R/O VILLAGE ARNIYA TEHSIL BIAORA, DISTRICT RAJGARH (BIAORA) Vs. STATE THROUGH PS BIAORA DISTRICT RAJGARH (BIAORA)

JUDGEMENT

(1.)

(2.) FEELING aggrieved by the judgment of conviction and order dt. 2.9.1997 passed by learned Special Judge Rajgarh (Biaora), in Special Case No. 92/1993 convicting the appellant under Section 376 IPC and thereby sentencing him to suffer 5 years RI and fine of Rs. 500/ -in default further RI of 3 months, the appellant has preferred this appeal under Section 374(2) of the Code of Criminal Procedure, 1973. In brief, the case of prosecution is that on 8.9.1993 at 4 PM the prosecutrix along with her parents was residing in her house. Although she got married 5 years prior to the date of incident i.e. 8.9.1993 but her Gauna (a custom in which the bride do not go to her nuptial house but stays at her parents house and after a function she is allowed to go to her nuptial house) but her Gauna did not take place and thus she was residing with her parents. On the date of incident 8.9.1993 appellant came to the house of her father and made a demand of empty liquor bottle upon which the father told that he is not having any bottle. Thereafter her father asked the prosecutrix to search a bottle and give it to the appellant. After some time, appellant again arrived and asked the prosecutrix to bring the bottle from his house which was given by her to the appellant, but the prosecutrix did not accept the said offer. Thereafter appellant told her that he is going to his house by carrying the bundle of grass and the prosecutrix should also accompany him so that the bottle may be given back to her. Under this pretext the prosecutrix went to the house of appellant. It is said that after the arrival of prosecutrix at the house of appellant he closed the door and bolted from inside. Thereafter by handkerchief appellant gagged her mouth and after putting off her clothes and his own clothes he committed sexual intercourse with the prosecutrix without her consent and willingness for half an hour. On account of the sexual intercourse committed by him, blood started oozing from the private part of the prosecutrix. Thereafter, the appellant by releasing her mouth went away from his house. The prosecutrix thereafter came back to her home and narrated the incident to her elder sister Basantibai.

(3.) AFTER investigation was over a charge sheet was submitted before the Special Court who framed charges punishable under Section 376 of IPC also under Section 3(2)(v) of the Act of 1989 which the appellant denied.