SANJAY KUMAWAT Vs. STATE OF M P

JUDGEMENT

(1.) THE instant petition is for impugning the order dated 8. 8. 2007 passed by Third Additional Sessions Judge, gwalior in S. T. No. 212/2007 by which the learned Judge after rejecting an application under Section 227 of Cr. P. C. filed on behalf of the petitioner, has framed charge punishable under Section 376 of IPC against him. The relevant excerpts of the FIR dated llth March, 2006 lodged by the prosecutrix against the petitioner are as under:<img>C:\program Files\regentdatatech\image\np_(1)_540_crimes1_2008.jpg</img> On this report Crime No. 8/2006 was registered at Mahila Thana Padav, Gwalior against the petitioner for the offence punishable under Section 376 of IPC. On the same day her statement under Sectionl61 of Cr. P. C. was recorded. The relevant excerpts of the statement goes as under:<img>C:\program Files\regentdatatech\image\np_(2)_540_crimes1_2008.jpg</img> <img>C:\program Files\regentdatatech\image\np_(3)_540_crimes1_2008.jpg</img> The allegations stated by the prosecutrix against the petitioner have been corroborated by witness Poonam and Arti who are the sister and sister-in-law (Bhabhi) of the prosecutrix. During investigation her statement under Section 164 of Cr. P. C. was also recorded on 27th October, 2006. These statements are more or less similar, so far as the allegation against the petitioner is concerned.

(2.) DURING investigation, towel and gown presented by the prosecutrix were seized and sent for chemical examination. Vide report dated 6. 10. 06, no semen or spermatozoa was found: admittedly, Dr. M. K. Dudhariya is also being prosecuted as a coaccused for the offence causing disappearance of evidence or giving false information to screen the offence punishable under Section 201 of IPC.

(3.) SHRI Mody has placed reliance on the judgments of the Apex Court and Calcutta high Court rendered in Pradeep Kumar verma v. State of Bihar and another; Uday v. State of Karnataka; Jayanti Rani Panda v. State of West Bengal and another and has submitted that in identical facts, the apex Court and Calcutta High Court has observed that in such facts, no offence of rape is made out, as the sexual act was performed with the consent of the prosecutrix, which was obtained without any misconception of facts.