RUSTAM KHAN Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The two appellants have been convicted for offence under Section 376 of the Indian Penal Code and sentenced to rigorous imprisonment for four years and a fine of Rs. 100/., in default of payment of fine, further R. I. for one month by Judgment dated 4-1-1980 passed by Shri B. S. Bhatjiwale, Sessions Judge, Raisen, in Sessions Trials No.5of 979. They are challenging their aforesaid convictions and sentences in this appeal.

(2.) The prosecution case was that on 16-8-1978, at about 4 P.M., the prosecutrix Kesharbai (P.W. 7) was working in her field when the appellants armed with gun and axe reached the spot. The appellant Rustam Khan alleged to have caught hold of her left hand and threatened her with dire consequences if she did not go with him. The appellant Munne Khan is said to have kept the barrel of the gun on her chest. On being so threatened, she quielty accompanied the appellants. The appellants took her into the forest of village Rashidpur a.nd committed sexual intercourse on her against her will. Thereafter she was taken to the house of Rustam Khan in village Rashidpur and kept in a room and subjected to sexual intercom 3e twice or thrice against her will by both the appellants. The prosecutrix is alleged to have been released at 10 P.M. with the threat that if she disclosed the incident to anyone, she would be killed. Kesharbai reached her home at about midnight and narrated the incident to her husband Hemsingh (P.W. 6). Hemsingh promised to lodge a report in the morning. However, on the morning of 17-8-1978, his bullock had strayed away and hence he went in search of his bullock. The husband, however, asked the prosecutrix to narrate the incident to Imratlal (P.W.3) and Kaluram (P.W.4) who are the neighbours. The husband could, not return during the day but returned in the night and thereafter next day on 18.8.1978 went to the police station Gairatganj to lodge the report Ex. P-5. Police Station Gairatganj is situated at a distance of 5 kilometers from the village of the prosecutrix. After investigation, the challan under section 376, Indian Penal Code was filed.

(3.) The defence of the appellant Munne Khan was that he has been falsely implicated as his relations with the prosecutrix Kesharbai were not happy because of a dispute between them over the land. The defence of the appellant Rustam Khan was that he has been falsely implicated because of his enmity with Imratlal during the elections Both of them alternatively submitted that it was a case of consent. The learned Sessions Judge relying on the evidence of the prosecutrix Kesharbai (P.W. 7), her husband Hemsingh (P.W. 6), Imratlal (P.W. 3) and Kallu Karigar held that the appellants have committed sexual intercourse with the prosecutrix against her will. The learned Judge has not accepted the story of consent even though he found any injury on the person of the prosecutrix. On the aforesaid evidence the appellants have been convicted and sentenced as-aforesaid.