PREM LAL YADAV Vs. STATE OF M P

JUDGEMENT

(1.) This appeal under Section 374 (2) of the Cr.P.C has been filed by the accused person in Special Case No. 156/1997 challenging the judgment dated 03.02.1998 passed by the Special Judge under SC ST (POA) Act, 1989 (in short "Act, 1989)," whereby the appellant has been convicted under Section 376 (1) of I.P.C and 3 (i) (xii) of "Act, 1989" and sentenced to rigorous imprisonment for seven years with fine of Rs. 500/- and rigorous imprisonment for 3 years and fine of Rs. 300 with stipulated default.

(2.) The prosecution story in brief is that prosecutrix (PW 3) was sleeping at her house, on 22.07.1997, along with her children. Her husband had gone to his in-law's village. At about 10:00 p.m in the night, the appellant entered into the house and sat on the cot. The prosecutrix woke up, tried to shout, the appellant covered her mouth with a piece of cloth, gagged her and forcibly committed sexual intercourse. When the prosecutrix shouted, her brother-in-law Hazari (PW 7) came there. He saw the accused fleeing from the house and caught him. Prema PW-8 (father-in-law), mother-in-law, sister-inlaw came there. The accused then begged for excuse and touched their feet. Later, finding an opportunity to escape he fled from the spot. In the morning the prosecutrix along with Hazari (PW 7) and Hulashi (PW 6) went to police station, which is at a distance of 102 kms. They lodged the report as Ex. P/3. Crime No. 17/1997 under Section 376 I.P.C and Section 3 (I) (XII) of the "Act, 1989" was lodged. The prosecutrix was sent for medical examination. Dr. Pushpa Dwivedi (PW 10) examined her and report (Ex. P/11) has been prepared. Her clothes and undergarments were seized. Two vaginal swab and slides were prepared and the same was handed over to the constable. Later, these items were seized and report (Ex.P/5) has been prepared. After the statements of the witnesses, spot map (Ex.P/7) was prepared by Deputy Superintendent of Police, H.S. Jhari PW 9. Spot map was prepared by Patwari Dharam Singh which is Ex. P/2. The accused was arrested and was sent for medical examination. Medical Officer Dr. D.K.Jain, (PW 1) has written the examination report (Ex. P/1). Nothing was found which would go to show that the accused is unable to perform sexual intercourse. The clothes and slides etc were sent to the FSL, Sagar. On examination the clothes of the prosecutrix was found positive for human semen. After the completion of investigation, charge sheet has been filed.

(3.) The learned trial Court framed charge under Section 376 I.P.C and 3 (1) (XII) of the 'Act, 1989.' The accused abjured guilt and claimed innocence. He also submitted that earlier to this the wife of Hazari (PW 7) also tried to level similar allegation against the appellant, which was found false by the police.