SITARAM Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The appellant challenges his conviction under Sections 376 and 457 of the Indian Penal Code and sentence of 7 years R. I. and R. I. for 1 year respectively with direction for concurrent running of sentences, recorded vide judgement dated 5-12-86 passed in S.T. No. 157 of 1986 of Raipur Sessions Division.

(2.) Prosecutrix Kumari Bai (PW 1), a married woman was all alone in her house on 23-3-86 in the afternoon. The appellant then aged 19 years entered inside and committed rape on her. Her husband's younger brother Aagar Singh (PW 2) came and saw the appellant mounted on the prosecutrix. It is said that the appellant got up and gave a push to Aagar Singh and ran away. At that time Itwari, a neighbour, had also come who was told of the incident by the prosecutrix. The husband of the prosecutrix was out. He returned late in the night. The next day village Panchayat was convened and the appellant denied his guilt. A decision was taken to inform the police. Accordingly, the First Information Report was lodged two days' later. The distance of Police Station from the village is only 8 Kms. After registering crime, the prosecutrix was sent for medical examination. The Doctor did not find any external or internal injury on her. The Doctor could not give any definite opinion on the question of recent intercourse as Kumari Bai was used to sexual intercourse. Though the defence did not specifically urge consent, suggestion to that effect was made in the cross-examination of the prosecution witnesses. The learned trial Judge accepted the prosecution evidence and held that under Section 114-A of the Evidence Act in view of Kumari Bai's denial of consent, it had to be held that the set was without her consent.

(3.) It is admitted by both sides that since it was a case of simple rape u/S. 376(1), I.P.C. the presumption aforesaid was not applicable which is attracted only in case of offences u/S. 376(2) Clauses (a) to (e) or (g) of the Indian Penal Code (45 of 1860).