SHANKAR DHOBI Vs. STATE OF M P

JUDGEMENT

(1.) THE appellants-accused have filed this appeal under Section 374 (2), Cr.PC being aggrieved by the judgment dated 2-9-1999 by Special Judge [constituted under the provision of SC & ST (Prevention of Atrocities) Act], in short "the Act" and Sessions Judge, Shivpuri in Special Case No. 80/95,whereby the appellant No. 1, Shankar has been convicted and sentenced under Section 376 (1) of the IPC read with Section 3 (2) (v) of the Act with a direction to undergo for life imprisonment with fine of Rs. 5000/-. In default of depositing the same, for further six months RI has been awarded while appellant Nos. 2 and 3 Dabbe @ Damodar and Raghuveer Singh have been convicted and sentenced under Section 376/114 of IPC read with Section 3 (2) (v) of the Act with a direction to suffer the same punishment, as awarded against the appellant No. 1.

(2.) THE facts giving rise to this appeal in short are that on dated 1-10-1995 at about 7 o'clock in the morning, the prosecutrix Ramvati (P.W. 7) lodged the FIR at P.S. Pohari contending that in the midnight of 30-9-1995 and 1-10-1995, she was all alone at her residence while her husband had gone to the Hanuman temple of the village to participate in some prayer. In the evening of 30-9-1995 after taking her meals, she went to sleep. At about 12 o'clock in the night the appellants Shankar Dhobi, Dabbe @ Damodar and Raghuveer Singh entered in her house. Out of them, the appellant No. 1, Shankar started doing Masaj of her breasts while the accompanied appellant No. 2, Dabbe @ Damodar and appellant No. 3, Raghuveer were standing there near the cot. The prosecutrix tried to run away from such place but she was caught hold by the appellant No. 2, Raghuveer. After catching her legs, he pressed her on the cot. Thereafter appellant No. 1, Shankar committed sexual intercourse on her contrary to her wish. The prosecutrix cried. At the same time, her husband, Gendalal (P.W. 8) and brother-in-law Jankee Lal came there from Hanuman Temple. Them the appellants tried to run away from such place. Out of them, her husband caught hold the appellant No. 1, Shankar but later on he also fled away. On such report, the offence of Section 376/34 of IPC was registered against all the three appellants. The prosecutrix was sent to the hospital where after carrying out her medical examination, the MLC report was prepared. The investigation was carried out. On completion of the same, on establishing charges of Sections 376/34 of IPC and 3(1) (xii) of the Act, the appellants were charge-sheeted for the same.

(3.) WE have heard Shri N.P. Dwivedi and Shri S.K. Tiwari, appearing Counsel for the appellants as well as Shri B.K. Sharma, learned Govt. Advocate for the respondent-State at length. Keeping in view their arguments, on perusing the record in the following circumstances, we deem fit to remand the matter after setting aside the impugned judgment of the Trial Court to decide the case afresh.