KAMINI Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) These Criminal Appeals have been filed by the appellants under the provisions of Section 374 of the Code of Criminal Procedure (hereinafter referred to as ' Cr.P.C .'), being aggrieved by common judgment dated 20.07.2012 passed in Sessions Trial No. 142/2010, whereby appellant-Kamini has been convicted under Sections 120 (B), 347, 363 and 366 (A) of IPC and sentenced to undergo 10 years, 3 years, 5 years & 10 years R.I and fine of Rs. 4,000/-, 2000/-, 2000/- and Rs.4,000/- respectively, with default stipulation. Appellant Kalicharan has been convicted under Sections 120 (B), 347 and 366 (A) of IPC and sentenced to undergo 10 years, 3 years & 10 years R.I and fine of Rs. 4,000/-, 2000/- & Rs.4,000/- respectively, with default stipulation. Appellant Bablu @ Mahendra has been convicted under Section 376 (1) of IPC and sentenced to undergo 10 years' R.I and fine of Rs. 10,000/- with default stipulation.

(2.) Learned counsel for the appellants submits that they have been falsely implicated. As per report of the doctor, namely, Dr. M.L. Agrawal (PW-3), he has given opinion on the basis of x-ray report contained in Exhibit P-6 that radiologically age of the prosecutrix was above 16 years and below 18 years. It is pointed out that in cross- examination, concerned doctor specifically admitted that the age of prosecutrix may be 1 or 2 months less than 18 years. It is submitted that no documentary evidence in the form of first school entry register or date of birth certificate from the school has been produced so to show that prosecutrix was minor at the relevant point of time. It is also submitted that in fact looking to the margin of error as per the medical jurisprudence, since doctor has admitted that age of prosecutrix could have been 1 or 2 months less than 18 years at the time of incident then keeping that error of margin in mind, it can be well above 18 years, and thus, the case will be that of consent.

(3.) Learned counsel for the appellants have taken this Court through the evidence of the prosecution witnesses as well as the judgment and it is pointed out that prosecutrix, as per the prosecution had left her house at 12 noon on 06.03.2010 to purchase certain stationary items where on the way she had met accused Kamini who started walking with her. Allegation is that Kamini had taken her to her photo shop in the market and had inquired about her educational background and then informed her that once she completes her 10 th class, then she will be in a position to help her with computer tutorials. It has also come on record that thereafter Kamini took her to a house close to handpump and informed her that other girls are also visiting her. After some time, accused Kalicharan had also reached that room. It is also submitted that when the prosecutrix informed Kamini that she wants to go back to her home, she was stopped from doing so and they informed her that they will take her to Indore and if she is not agreeable then they will kill her. Thereafter due of fear she had slept in the said room for whole night and she was alone in said room. In the morning, accused persons had opened the room and woke her up and they prepared tea for her and made her change clothes after taking off her ear rings but she continued to wear her pajama. Thereafter, a driver had visited the room and accused persons Kamini and Kalicharan after closing her with the driver, left the room and driver had closed the room from inside. It is also submitted that when she tried to shout then driver had pressed her mouth and thereafter undressed her and raped her. It is also deposed that thereafter when some noise came from outside, the driver ran away due to fear. Prosecutrix followed the driver after putting on her clothes and reached her home, then FIR (Exhibit P-1) was lodged on 07.03.2010 at about 9:15 pm (21.15 hours). Distance of the Police Station from the place of incident is shown as 1 km.