KALURAM Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The appellant / accused has filed this appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short, the Code ) against impugned judgment dated 13.10.1999 passed by 2nd Additional Sessions Judge, Shajapur, District Shajapur (MP) in Sessions Trial No.45/1999, whereby the appellant has been convicted for commission of offence punishable under Sections 366 and 376 of Indian Penal Code, 1860 and sentenced to un- dergo five years rigorous imprisonment with fine of Rs.500/- and seven years rigorous imprisonment with fine of Rs.1,000/- respectively along with default stipula- tion.

(2.) The prosecution story, in short, is that on 08.06.1998 at about 11.00 AM, the prosecutrix aged about 17 years, went near to 'Well' for taking bath. When she did not return to home, her parents searched her, but when she could not be traced, then on 10.06.1998 Ex.P/4 they lodged a report at Police Station, Moman Barodiya, District Shajapur (MP) about missing of minor daughter, which was registered as Missing Person No.04/1998. During the inquiry, on 27.07.1998 Ex.P/3, the Police re- covered the victim / prosecutrix from Waiting Room, Bus Stand, Sarangpur, District Shajapur (MP); and recorded her statement in which she informed that when she was taking bath near the 'Well', the appellant / accused came there and he gave prasad - sweet edible thing (izlkn) to her. After consuming the food article, she felt uneasi- ness. Thereafter, the appellant / accused allured her to live in Biaora City on the pretext to marry with her. On refusal to the said proposal, the appellant / accused threatened to kill her. Thereafter, he took her forcefully on the point of knife to Sarangpur by tempo. Thereafter, he took her to Biaora and kept her in a room where in night he committed rape twice and also threatened to kill her. In next morning, he took her to Vidisha and kept her in a room for a period of one month and twenty days; during which, he made forcefully physical relationship with her by threatening to kill. When it came to the knowledge of the appellant / accused that Momam Baro- diya Police was surrounding him in Vidisha, then he took her Biaora via Narsingarh by bus, but when they could not get a bus from Biaora to go to Indore, then they come to Sarangpur by Mini Bus at about 03.00 to 04.00 AM; and at Bus Stand Sarangpur, when they were waiting for a Bus to go to Indore, the Police came there with her un- cle and after seeing the Police, the appellant / accused fled away leaving her alone. On the basis of the aforesaid statement, on 27.07.1998, the Police registered FIR bear- ing Crime No.74/1998 against the appellant for commis- sion of offence punishable under Sections 363 , 366 , 376 and 506 of the Indian Penal Code, 1860; and sent the prosecutrix for medical examination and also for ossifi- cation test for determination of her age. The Police vis- ited the spot and prepared spot map, recorded statement of the witnesses, arrested the accused person and sent him for medical examination. The police also collected clothes, pubic hair and vaginal / semen / sperm slide of the prosecutrix and accused; and sent it to Regional Forensic Science Laboratory, Indore for chemical analy- sis. After completion of the investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Shajapur, District Shajapur (MP), who committed the case to the Sessions Court, which was finally trans- ferred to the Court of 2nd Additional Sessions Judge, Sha- japur, District Shajapur (MP) for its trial.

(3.) On 07.06.1999, the trial Court framed the charge against the appellant / accused for offence pun- ishable under Sections 363 , 366 and 376 of the Indian Penal Code, 1860. He abjured his guilt; pleaded false im- plication and prayed for trial. In defence, he examined Dr. Ramesh Shiva (DW-1) on the point of age of the pros- ecutrix.