SATISH KUMAR UIKEY Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This criminal appeal under Section 374 (2) of the Code of Criminal Procedure has been preferred by the appellant being aggrieved of the judgment dated 31/8/2013 passed by the Additional Sessions Judge, Lakhnadon District Seoni in ST No.198/2011, whereby the present appellant has been convicted and sentenced as under:

(2.) In brief the facts of the case are that on 22.8.2011 at around 3:00 O'clock in the evening at Village Joba the prosecutrix was raped by the co-accused Brajesh after closing the door of his house and subsequently appellant Satish and co-accused Santosh also raped her, thus it is a case of gang rape. Since Santosh and Brajesh were minor below 18 years, their case were separately tried by the Juvenile Court, however the present appellant being major was tried by the Additional Sessions Judge, Lakhnadon and was convicted as aforesaid.

(3.) Learned counsel for the appellant has submitted that no case of rape is made out against the appellant, as according to the MLC (Ex.P-21-A), no opinion of rape has been given by Dr.Chetna Wandre (PW10), who has opined that the prosecutrix had no external injury and only a possibility has been expressed by her about the intercourse, that she might have been subjected to sexual intercourse. Learned counsel for the appellant has further submitted that had it been a case of gang rape, the doctor could have opined differently and since even according to the doctor it was difficult to insert two fingers in the vagina of the prosecutrix, it cannot be said that she was subjected to sexual intercourse. Learned counsel for the appellant has further submitted that the appellant has been falsely implicated, although no defence witness has been examined on his behalf. It is further submitted that the FIR has been lodged after undue delay of 12 days and there is no explanation in respect of such undue delay.