STATE OF MADHYA PRADESH Vs. ARUN MALVIYA

JUDGEMENT

(1.) Heard on the question of admission. This is an application filed under Section 378(3) of the Code of Criminal Procedure seeking leave to appeal against the judgment dated 02.02.2013 passed by the Sessions Judge, Shajapur in Sessions Trial No. 169/2012, whereby the learned Judge has acquitted the respondent/accused for the alleged offence under Sections 363, 366-A, 376 and 506 Part-II of the Indian Penal Code.

(2.) As per the prosecution story, the prosecutrix (PW-1) was below 16 years of age. The respondent/accused used to talk her on mobile phone. On 30.03.2012 also, the respondent called the prosecutrix to come along with him. On this, the prosecutrix went to (fair) from where the respondent and prosecutrix went to Jirapur and thereafter to Kota and then to Jhalra Patan and Jhalawar, where the respondent kept the prosecutrix in a rented room, where for 15 days he committed rape on her.

(3.) The trial Court, after considering the evidence led by the prosecution, in the absence of any cogent material regarding the age of the prosecutrix, on the basis of the ossification test and the evidence of Dr. Kapil Sahay (PW-7) and Dr. Gita Revadiya (PW-3) recorded a finding that the age of the prosecutrix was between 16 to 18 years. The trial Court also noticed the fact that the prosecutrix had travelled at various places in the company of the respondent and at Jhalawar they lived for 15 days and during this period, there were various opportunities available to her to call for help or to protest against the action of the respondent/accused in taking her forcefully and committing rape, but having not done so, the trial Court held her to be a consenting party, passed the impugned judgment of acquittal.