NANHE BHAI Vs. STATE OF M P

JUDGEMENT

(1.) The appellant has called in question the conviction and sentence under Section 366 and 376 of IPC for three years R.I. and seven years R.I. respectively imposed against him vide judgment dated 7.9.1992 passed by the IIIrd Additional Sessions Judge, Sagar in Sessions Trial No. 320/90.

(2.) The case of the prosecution in short are that on dated 23.7.1990 at about 11 o'clock in the night the prosecutrix Jai bai was making bidies inside of house with her sister in law Anita (Bhabhi). At the aforesaid time she went outside the house to get easy where she was apprehended by the appellant Nanhe Bhai accompanied with Devi Singh and Umarai who had hiding in the dark. She was caught hold by them. By inserting the cloth in her mouth a she was taken to the house of Nanhe Bhai where after throwing her on the floor, her legs were caught hold and pressed by the appellant, Nanhebhai. While her hands were caught hold by other acquitted accused Umarai and was threatened by other acquitted accused Devi Singh that on shouting they would kill her. Subsequent to it, by removing her sari and peticot by appellant Nanhe Bhai came over on her and inserted his pennis in her vagina and committed the rape on her. However, after such incident she could come to her residence and mentioned the incident to her sister in law (Bhabhi). She reported the same with the Police Sanodha in the noon on dated 24.7.1990, on which an offence under Section 376/34 of IPC was registered against the appellant and aforesaid other accused. She was referred to hospital for medical examination. On carrying out the same her MLC report was prepared. After arresting the appellant and other accused, on recording the interrogatory statement of the witnesses, and carrying out the other necessary investigation, the appellant and other two accused were charge sheeted for the offence under Section 376/34, 109 and 114 of IPC.

(3.) After committing the case to the Sessions Court the charge under Section 366 and 376 were framed against the present appellant while charges for the offences under Section 366, 109 r/w Section 376 and Section 34 r/w Section 376 were framed against other accused Umarai and Devi Singh. They absurd the same, on which trial was held. After recording the evidence, on appreciation of the same, the other accused namely Umarai and Devi Singh were acquitted from all the alleged charges while the appellant was held guilty for the offences under Section 366 and 376 of IPC, for which he was sentenced, as said above. The same is under challenge in this appeal.