TORAN SINGH Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The appellant has challenged his conviction under Sections 366 and 376, Indian Penal Code, recorded by the Additional Sessions Judge, Basoda, in Sessions Trial No. 42 of 1982, dated 23-3-1983. He has been sentenced to rigorous imprisonment for three years on each count; both the sentences to run concurrently.

(2.) Brief facts are that Leelabai (P.W. 12) was kidnapped on 18-4-1981 at 5.00 a.m. from her house by the appellant. She was taken from place to place and was subjected to rape by the appellant. Consequently, he was arrested and was prosecuted. The prosecution examined 12 witnesses. Leelabai (P.W.12) narrated the entire story before the trial Judge. Portions of her testimony were corroborated by the first information report lodged by Nannulal (P.W. 2) in police station Basoda D/-18-4-1981 at 5.00 p.m. Bhanukumar (P.W. 3) is the brother of the prosecutrix; Kailash (P.W. 5) is the uncle of the prosecutrix and Smt. Mayabai (P.W. 10) is her mother. Jasram Sharma (P.W. 11), who was the headmaster of the school, where Leelabai (P.W. 12) was a student, produced the register in which her date of birth was recorded. According to this witness, the date of birth of Leelabai Jain was entered in the admission register as 2-2-1965. Thus, on the date of the incident, her age, according to the entry in the admission register, was 16 years 2 months and 16 days. The Trial Court has relied upon the testimony of the prosecutrix and the appellants.

(3.) Shri A.K. Shrivastava, learned counsel for the appellant, has contended that no positive evidence of rape was adduced by the prosecution during the trial and, hence, the appellant cannot be convicted under Section 376, IPC. He has also contended that according to Dr. (Mrs.) Indu Jain (P.W. 1) the prosecutrix was used to sexual intercourse and, hence, it should have been concluded by the Trial Court that the prosecutrix had willingly left her home along with the appellant and that even if the appellant had sexual intercourse with the prosecutrix it was with her consent. Shri Shrivastava has also contended that reliance should not have been placed upon the testimony of Leelabai (P. W. 12) by the Trial Court and in absence of any corroboration on material particulars the appellant should not have been convicted.