PEERU Vs. STATE OF M.P.

JUDGEMENT

(1.) THESE two appeals arise out of the same judgment and order dated 7.10.1986 passed by Additional Sessions Judge of Seoni, convicting the appellants under section 376 IPC and sentencing each of them to undergo four years rigorous imprisonment.

(2.) THE story set up by the prosecution was that on 26.2.1984, appellants had induced Kumari Phoolwati to go alongwith them for the purpose of having sexual intercourse. The prosecutrix Kumari Phoolwati was recovered after two days on 28.2.1984 when she was living with the appellant Perru in a particular house in village Chammu Tola, when the prosecutrix came back to her parents house a report was lodged at police station Barghat stating therein that the appellants had kidnapped the prosecutrix and had committed rape upon her for continuous two days. The case was given the nature of a gang rape by two persons upon a minor girl of below 16 years of age. The FIR is said to have been lodged by the father of the prosecutrix, which has been proved on record as Ex. P/7.

(3.) THE prosecution in support of the charge, had examined 14 witnesses. P.W. 1 Dr. Mrs. A Pancholi had deposed regarding the medical condition of the prosecutrix at the time of her medical examination. She was found to have been used to sexual intercourse. However, her age was found to be about 14 years. P.W. 2 Dr. N.K. Pancholi had medically examined the two appellants when they were arrested and they were found to have been capable of performing sexual intercourse. P.W. 3 Ramu is a witness of recovery of birth and death register of the Kotwar of the village concerned. P.W. 4 Bholaprasad is Kotwar himself. He had brought the birth and death register of the period, which was said to have been maintained in due course of business earlier by his father and after his death, by himself. He had deposed regarding the entry of age of the prosecutrix who was said to have been born on 28th of August, 1970, which is recorded at Page No. 76 of the register. P.W. 5 Sheelabai had deposed regarding the actual incident. Prosecutrix Kumari Phoolwati was coming alongwith them in a group of ladies after per forming labour work. Prosecutrix Kumari Phoolwati left behind and she became untraceable thereafter. P.W. 6 Gyanilal is the father of the prosecutrix, who did not support the prosecution case. He was declared hostile and was cross -examined. P.W. 7 Somwati Bai is elder sister of the prosecutrix. She had deposed regarding the age of Kumari Phoolwati to be about 14 -15 years. P.W. 8 Dr. K.C. Meshram had taken X ray of the prosecutrix Kumari Pholwati and according to his opinion the age of the prosecutrix at the time of medical examination was less than 14 years. He admitted that there may be a difference of 2~3 years in the assessment of age by performing X Ray. P.W. 9 Vishlal is a witness when the girl was recovered and memo was prepared. P.W. 10 Tamsingh is a police constable who had taken possession of clothes of the appellants, which were sent for chemical examination. P.W. 11 Kumari Phoolwati is the prosecutrix herself. She had deposed as. to how she had gone alongwith the appellants and remained with them for two days outside in two different villages. P.W. 12 Phoolchand is a witness of fact that Kumari Phoolwati, the prosecutrix was found alongwith Perru in his house and on inquiry it was found that the girl had come at her own accord alongwith clothes and ornaments and was living with the appellant. This witness was also declared hostile. P.W. 13 H.N. Guru is the Investigating Officer who had submitted the charge sheet. P.W. 14 J.P. Koshata had proved the X ray plates, who was a radiographer when the X ray was taken.