SOMJI Vs. STATE OF M. P.

JUDGEMENT

(1.) THE prosecution case in brief was as follows: On 7.4.81 at about 5 P.M. the prosecutrix P.W.1 Surbai accompanied by P.W.2 Ramesh and Sonbai and Hirbai was going to the house of one Guman Bhil to worship Devi Mata. The appellant caught hold of Surbai in the way, dragged her to a nearby jungle and committed rape upon her. The report of the incident was lodged by Surbai at police station Kakshi on the next day at 2.10 P. M. After investigation the appellant was arrested and put up for trial for the offences under section 363, 366 and 376 IPC. The appellant denied having committed any offence. The learned trial judge held that the offence under section 376/511 IPC only was made out against the appellant beyond reasonable doubt.

(2.) AS regards the age of P. W. 1 Surbai, the prosecution examined P. W. 8 Dr. Agrawal who on ossification test of Surbai opined that she was between 16 and 18 years of age. Thus it is not proved that Surbai was a minor girl on the date of the incident.

(3.) AS regards her being dragged by the appellant she is not corroborated by the medical evidence. P. W. 7 Dr. Gupta who examined her did not find any external injury on her person. In her cross examination Surbai admitted that after the sexual intercourse she slept in the jungle along with the appellant and when the appellant was asleep she left the appellant early in the morning and took his shirt with her. From her testimony it is quite clear that she willingly accompanied the appellant and was a consenting party to the sexual intercourse. On the evidence on record I am of the opinion that the trial Court was not justified in holding the appellant guilty of the offence under section 376/511 I. P. C. The appellant deserves to be acquitted of the offence charged with. Appeal allowed.