ASHOK KUMAR Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THE appellant has preferred the present appeal being aggrieved with the judgment dated 5.2.1997 passed by the Sessions Judge, Khandwa in S.T. No. 172/95, whereby the appellant has been convicted of offence under Sections 376 Part -II and 450 of the IPC and sentenced to ten years and five years R.I. respectively.

(2.) FACTS of the case in short are that the prosecutrix (PW -9) was married to one Mahesh (PW -12) in the year 1992 and thereafter, she was residing in the house of her husband at village Bamangaon (Police Station Kotwali, District Khandwa). Mahesh had a business of Dhaba (restaurant). The appellant was husband of sister -in -law of the prosecutrix. On 10.9.1995, husband and parents -in -laws of the prosecutrix went out of the house for some reason and she was all alone in the house in that night. Her brother -in -law and sister -in -law, who were children were also present in the house but, they were sleeping in other room of the house. At about 1:00 a.m., in the night, one Baliram by tearing a Tata (a tough sheet prepared by bamboo chips) in between Dhaba and resident portion, entered inside the house and kept knife on chest of the prosecutrix and committed rape. Thereafter, the appellant Ashok and other accused persons namely Rajesh and Sunil committed rape with the prosecutrix one by one. Accused Baliram took her silver and golden ornaments forcefully and gave such ornaments to Sunil, Ashok and Rajesh, and some ornaments kept by him. In the morning, the prosecutrix went to the house of maternal uncle Gendalal (PW -10) and informed about the incident. Bangles of the prosecutrix were also broken and her blouse was torn. Gendalal (PW -10) intimated about the incident to Mangaibai (PW -3) and Bhaiya Lal (PW -11). Bhaiya Lal was sent to intimate about the incident to parents -in -laws of the prosecutrix. Gendalal had also informed about the incident to Devram (PW -4). Devram had also confirmed about the incident from the prosecutrix and thereafter, he had recorded a written report Ex.P/3. Sarpanch Ramesh (PW -5) had also been intimated about the incident and thereafter, the prosecutrix had lodged an FIR Ex.P/3 at Police Station Kotwali, District Khandwa. On the next day, the prosecutrix was sent for her medico legal examination. Dr. Raksha Sharma (PW -1) examined the prosecutrix and gave a report Ex.P/1 -A. No external or internal injury was found on her person. However, two slides of vaginal swab of the prosecutrix were prepared and one petticoat of the prosecutrix was taken and after sealing them, such articles were handed over to the concerned constable for forensic analysis. After due investigation, the charge sheet was filed before the CJM Khandwa, who committed the case to the Court of Sessions.

(3.) THE Sessions Judge after considering the prosecution's evidence acquitted the accused persons namely Baliram, Sunil and Rajesh and acquitted the appellant Ashok from the charge of offence under Section 392 of the IPC, but convicted him for the offence under Sections 376 Part -II & 450 of the IPC and sentenced him as mentioned above.