ARUP Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) APPELLANT Arup stands convicted for offence punishable under Section 376(2)(g), IPC and sentenced to R.I. for ten years with fine of Rs. 5,000.00. he has further been convicted for offence punishable under Section 307, IPC and sentenced to R.I. for ten years with fine of Rs. 5,000.00, by the impugned judgment and order dated February 18, 1998, passed by Sessions Judge, Betul, in Session Trial No. 146/96. The prosecution case, in brief, is that about then days before the date of incident, prosecutrix Sua Bai had come to her parental home from her matrimonial home. On 16.04.96 at about 9 P.M. she was cleaning utensils in the courtyard. Her mother, brother Jagannath and his wife were present inside the house. The appellant and acquitted accused Nav Kumar came in the courtyard, picked the prosecutrix up and took her in a shrub where both the accused committed rape on her one after the other. Thereafter, they picked the prosecutrix up and took her to a well and in attempt to finish her threw her in the well. One Sukiya (PW 3) whose house is situated very near to the well, heard the splash of water in the well and thought that something has fallen into the well. He went to the well with a lamp. When he peeped in the well, he found a girl therein. He raised an alarm. On hearing his cries Ratan Chakrawarti (PW 4) and some other persons of the locality reached near the well. Ratan Chakrawarti (PW 4) jumped into the well and held the prosecutrix. With the help of the villagers prosecutrix was taken out of the well. She lodged FIR of the incident, Ex. P -1 in P.S. Chopna. The prosecutrix was sent to District Hospital, Betul where she was examined by Dr. Nisha Badwe (PW 6). On medical examination of the prosecutrix an abrasion was found on her left elbow. After her examination Dr. Nisha Badwe reported that no definite opinion can be given regarding rape on the prosecutrix because she was a married woman and used to perform sexual intercourse. Ex.P -8 is the report of Dr. Nisha Badwe (PW 6). On ossification test of the prosecutrix, Dr. A. Jawalkar (PW 2), opined that she was 16 years of age. Ex. P -S is his report.

(2.) DURING investigation a school certificate of the prosecutrix was also recovered, according to which the prosecutrix was born on 11.06.80. From the spot soil smeared with semen was seized. The clothes of prosecutrix were also seized. Both the accursed persons were arrested. The clothes of the appellant were recovered. Acquitted accused Nav Kumar was identified by the prosecutrix in the identification parade. The clothes of the prosecutrix, underwear of the appellant, soil recovered from the spot and the slides of vaginal smear of the prosecutrix were sent for chemical examination to FSL, Sagar. In the report of FSL, semen and spermatozoa were found on the clothes of prosecutrix but on other articles nothing incriminating was found. The appellant was also examined by the doctor who found him capable of sexual intercourse. After completion of the investigation a charge sheet was filed against the appellant and acquitted accused for the alleged commission of gang rape and attempt to commit murder. Charges for the aforesaid offences were framed by the trial Judge against the appellant and acquitted accused. The appellant and the acquitted accused adjured the guilt. Appellant pleaded alibi stating that he was on the election campaign along with Satya Rajan and at the relevant time was not present on the spot. This appellant further pleaded that he has been falsely implicated by the prosecutrix at the instance of Ratan against whom he had filed a case. His defence is also to the effect that previously also he was prosecuted for the offence of abduction and rape on the report of the prosecutrix but he was acquitted.

(3.) HAVING concluded the trial, the learned Sessions Judge acquitted accused Nav Kumar but found the appellant Arup guilty for offences punishable under Sections 376 (2) (g) and 307, IPC and by the impugned judgment and order sentenced him as indicated above. Aggrieved by the conviction and sentences recorded by the learned Sessions Judge, the appellant has come up in this appeal. I have heard Shri S.C. Datt, learned senior counsel with Shri S. Pandit, Advocate, appearing for the appellant and Shri S.D. Khan, learned Govt. Advocate, appearing for the State, and perused the record of the trial Court. Shri Datt, learned senior counsel, appearing for the appellant led me through the record and contended that the learned Additional Sessions Judge has committed an error in holding the appellant guilty of charges levelled against him. He submitted that the conviction and sentences imposed upon the appellant are illegal and incorrect, as such, are liable to be set aside. On the other hand, Shri Khan, learned State counsel has supported the judgment recorded by the trial Court convicting and sentencing the appellant as indicated above. Sua Bai (PW 1) has stated that on the date of the incident at about 9 p.m. she was cleaning utensils in the courtyard at the back portion of her house. Her mother and brother were present in the front portion of the house. Appellant and the acquitted accused Nav Kumar Came there. The appellant gagged her. Both the accused persons lifted her and took her in a shrub. She was threatened and put to fear. Both the appellant and acquitted accused committed rape on her one after the other. After commission of rape she was taken near a well and was pushed in the well by the accused persons. She shouted for help. Sukia took her out of the well. She was unconscious. When she regained consciousness, she informed the villagers about the incident. She then lodged a report of the incident. Ex.P -1, in the police station.