NARAYAN MAKWANA & ANOTHER Vs. STATE OF MP

JUDGEMENT

(1.) On 16/04/2018 none had appeared for the appellants and on 02/08/2018 also, none appeared for the appellants. Since the appellants are on bail from 14/07/2000 and this appeal is pending since 1999 i.e almost 19 years, therefore, in the light of the judgment passed by the Supreme Court in the matter of Surya Baksh Singh vs. State of Uttar Pradesh, (2014) 14 SCC 222, this Court has no option, but to decide this appeal on merits after hearing the counsel for the State and going through the appeal memo as well as the record of the trial Court. A detailed order has also been passed in this regard on 2/8/2018.

(2.) This Criminal Appeal under Section 374 of CrPC has been filed against the judgment and sentence dated 10/05/1999, passed by First Additional Sessions Judge, Ratlam in Sessions Trial No. 86/1998, by which appellant No.1 Narayan has been convicted under Section 366 of IPC and has been sentenced to undergo the rigorous imprisonment of four years and a fine of Rs. 500/- and appellant No.2 Ramesh alias Gudda has been convicted under Sections 366, 376 of IPC and sentenced to undergo the rigorous imprisonment of four years and a fine of Rs. 500/- and rigorous imprisonment of seven years and a fine of Rs. 500/- respectively, with default stipulation.

(3.) The necessary facts for the disposal of the present appeal in short are that the father of the prosecutrix lodged a Guminsaan report on 09/03/1998 to the effect that the prosecutrix had gone to her school on 09/03/1998 at about 07:30 in the morning and did not come back to the house at 2:00 pm as per daily routine. She was searched by the family members and since Gudda and Narayan were not in the house, therefore, a suspicion was expressed against them. In the Guminsaan report, it was mentioned that the prosecutrix is aged about 15 years. The FIR Ex.P16 was lodged and during investigation, it was found that the appellants had taken away the prosecutrix from the custody of her guardian to the bus stand and her cycle was parked in the cycle stand. Thereafter, they went to Mandsaur where appellant Ramesh alias Gudda took a room on rent in Mahesh Hotel by disclosing himself as well as the prosecutrix, as husband and wife, where appellant Ramesh alias Gudda committed rape on the prosecutrix and also extended a threat that in case if she narrates the incident to anybody then she would be killed. Thereafter, appellant Ramesh alias Gudda took the prosecutrix to a village near Neemuch, where they went to Piplyamandi in search of some job and also stayed in a lodge where also, the prosecutrix was raped. Thereafter, the prosecutrix was taken to Sukheda and Banjli, where again she was raped by appellant Ramesh alias Gudda. Later on, appellant Ramesh alias Gudda took the prosecutrix to the factory of his friend Dilip and there also, he committed rape on the prosecutrix and extended a threat. After the recovery, the prosecutrix was sent for medical examination and in medical examination her age was clinically assessed in between 14-16 years. The prosecutrix was found to be habitual for intercourse and was in menses. For determination of age, the radio-logical test was also conducted and the age of the prosecutrix was found in between 15-16 years. The police, during the investigation, seized mark sheet of the prosecutrix and as per the said mark sheet, the date of birth of the prosecutrix was 27/04/198The undergarment, vaginal slides and pubic hair of the prosecutrix were sent for FSL examination along with undergarment of appellant Ramesh alias Gudda and the FSL report was received, according to which human semen and sperms were found on the "Salwar" as well as undergarment of the prosecutrix and the undergarment of appellant No.2 Ramesh alias Gudda. The register of Mahesh Hotel was seized. Similarly, a token slip of deposit of cycle of the prosecutrix was also seized and after completing the investigation, the police filed charge sheet against the appellants for offence under Sections 366 & 376 of IPC.