WAHID KHAN Vs. STATE OF M.P.

JUDGEMENT

(1.) APPELLANT along with another accused were tried for an offence u/s. 376 of the IPC. By judgment dated 1.5.87 passed by the Sessions Judge, Sihore, in Sessions Trial No. 14/83, appellant was found guilty for an offence u/s. 376 of the IPC and sentenced to undergo R.I. for 7 years and fine of Rs. 500/ - and in default of payment of fine to suffer R.I. for 6 months. Other accused has been acquitted. Aggrieved by the order of conviction and sentence, appellant has preferred this appeal.

(2.) PROSECUTION story is that on 9.11.1981 at about 5 p.m. prosecutrix Basubai (PW 2) was going to village Barkhedi along with her brother Santosh (PW 3) for getting jowar grinded in a flour mill. When she reached near the field of a border, appellant Wahid Khan caught hold of her, took her in the field and committed rape on her. Case of the prosecution further is that another accused (since acquitted) also raped her. Prosecutrix lodged a report (Ex. P -3) on 14.11.1981 at 5.30 p.m. Police after investigating the case submitted charge sheet against the appellant and another accused person. Appellant denied the allegation of the prosecution and his case is that he has been falsely implicated in the case. No defence witness has been examined.

(3.) PW 1 Dr. Ku. Ratan Sharma on examination of the prosecutrix has not found any external injury on her private part. In the opinion of the doctor, no definite opinion can be given about rape and she has further stated that the prosecutrix was habitual for sexual intercourse. PW 2 the prosecutrix in her evidence has stated that she was going along with her brother Santosh (PW 3) to get the Jowar grinded in the flour mill and when she reached near the field of the barber, appellant came out from the Jowar field lifted her and took her to the Jowar field and "Bura Kam Kiya". She has further stated that she was wearing Petticoat, Dhoti and Blouse which was removed by the appellant and thereafter sexual intercourse was done (Bura Kam Kiya Tha). She has further stated in her evidence that she along with her brother went to the residence of the villagers and disclosed about the occurrence. She has further stated that her father was admitted in a hospital and as she was awaiting his arrival and on account of this delay has occurred in lodging the first information report. She has further stated that on raising the alarm, other accused carne there and as such she gave his name in the FIR. PW 3 Santosh the brother of the prosecutrix has stated in his evidence that when he along with his sister reached near the field of the barber, appellant came from inside the Jowar field and enquired as to whether she would be friendly to him at which, she replied in the negative. Thereafter, appellant took her inside the Jowar field. He has further stated that her sister was shouting for help. He has also stated in his evidence that on 'Halla', PW 4 Champalal came and on enquiry the prosecutrix said to him that appellant had raped her. PW 4 Champalal and PW 10 Amar Singh came to the place of occurrence immediately after the incident. They have stated that on Halla when they reached near the place of occurrence, on enquiry prosecutrix has stated that she was subjected rape by the appellant as also another accused. PW 5 is the father of the prosecutrix and he has stated in his evidence that while he was in the hospital, his son Kailash came and informed that her daughter was raped by the appellant and another accused. PW 6 is the mother of the prosecutrix and she has stated in her evidence that the prosecutrix stated to her that she was subjected to rape by the appellant and another accused. PW 7 is the Chowkidar of the village who has stated that the prosecutrix and her mother narrated to him that appellant has committed rape on her.