RIYA LALWANI Vs. STATE OF M.P

JUDGEMENT

(1.) FEELING aggrieved by the judgment dated 27th October, 2009 passed by the Sessions Judge, Gwalior in Sessions Trial No. 203/2009, by which the learned Sessions Judge has acquitted the accused/non -petitioner No. 2 under Section 376(1) of IPC, the prosecutrix/appellant has filed this revision under Section 397 read with Section 401 of Cr. P.C. requesting to set -aside the impugned judgment and to order re -trial.

(2.) THE prosecution story before the learned Trial Court in brief is that, accused Tarun called the prosecutrix on her mobile on 28.05.2008 and informed her that he was calling to some one else but has wrongly connected to her number. Subsequently, the accused continuously called the prosecutrix from time to time. On 18.06.2008, he asked the prosecutrix to attend the marriage of his friend named Amit Khatvani in Gwalior. The prosecutrix after attending the marriage wanted to return back to her house but the accused took her to a flat of his friend at Akashwani Campus, City Centre, Gwalior. The accused consumed liquor and offered cold drink to the prosecutrix. She consumed the cold drink. The cold drink contained some intoxicant. She lost her consciousness. The accused committed sexual intercourse with her. When she regained her consciousness, she came to know about the sexual intercourse. She complained to the accused about the commission of intercourse without her consent, in the garb of friendship. The accused assured to marry her. On the basis of this assurance, the prosecutrix went to Bhopal alongwith accused on 10.08.2008. They stayed at C -Sector, Insdrapuri, B.H.E.L., Bhopal. There also the accused committed sexual intercourse with her several times. On 28.01.2009, again the accused committed sexual intercourse with the prosecutrix and refused to marry her. Some conciliation proceedings were taken up between them by the police. The accused again refused to marry her. The prosecutrix therefore lodged F.I.R. with Mahila Police Station Gwalior narrating the entire story. During the investigation, the prosecutrix was medically examined by Dr. Reeta. No injury was found on her person or private part. Her hymen was found ruptured. The medical officer advised to confirm the pregnancy, which after tests were negatived. After due investigation, charge sheet was filed.

(3.) AFTER committal of the case, the Sessions Court framed charges under Section 376(1) of IPC. Accused abjured the guilt and pleaded innocence. The learned Sessions Judge by the impugned judgment acquitted the non -petitioner No. 2 with the finding that the prosecutrix was more than 25 years of age at the time of incident. She went with the accused in the night to attend the marriage and spent the whole night with the accused and had sexual intercourse with him, without any resistance. This activity of sexual intercourse went on for several months. Therefore, her conduct clearly shows that she was a consenting party. Hence, the accused cannot be held guilty for committing forcible sexual intercourse with her.