GHANSHYAM Vs. STATE OF M P

JUDGEMENT

(1.) This appeal is directed by the accused against the judgment and order dated 29-8-1989 passed by lInd A.S.J., Ratlam in S.T. No. 15/88 whereby the appellant was acquitted of the charge under Sections 363 and 366, IPC but was convicted for offence under Section 376, IPC and sentenced to seven yearsT RI. and to pay a fine of Rs. 500/- in default of payment of fine six months RI.

(2.) The prosecution case in brief was that on 28-7-1987 Mulibai (PW 13) came from Anand to Ratlam alongwith her grand-daughter Somli (PW6) and son Raju and was sitting in waiting room. She asked Somli to take Raju outside for taking water. After some time Raju returned alone and Somli did not come. On this, she lodged F.I.R at Railway Police Station, Ratlam. The appellant was travelling in the same compartment with Mulibai. He enticed Somli and induced her to board other train and told her that he will take her to Bombay. When they were alone in the Railway compartment the appellant committed sexual intercourse with her against her will and consent. On Meghnagar police came in the compartment and apprehended the appellant and Somli and brought them to Ratlam. Somlibai was medically examined by Dr. Poornima Subedar (PW 12) who could not give definite opinion whether rape was committed on her. She was examined by Dr. Jam (PW 8) for confirmation of age by ossification test. Dr. Jam opined that she was aged about 16 years vide report Ex. P5. The appellant was examined by Dr. H.K. Dubey (PW 7) who opined that the appellant was capable of performing sexual intercourse vide report Ex. P4. After completion of investigation challan was filed. The learned A.S.J. held that Somlibai was aged about 18 years and she had gone voluntarily with the appellant and acquitted him of the charge under Sections 363/366. I.P.C. but held him guilty under Section 376. I.P.C. Hence, this appeal.

(3.) Mr. Jaisingh, learned Counsel submitted that the learned trial Judge himself held that the prosecutrix was aged about 18 years and went with the appellant out of her free will. He submitted that from the medical evidence. It is clear that the appellant did not commit sexual intercourse with her. Dr. Poornima Subedar found no injury on her body or private part and found her hymen intact. He further contended that no semen or spermatozoa were found on the slides of vaginal smear of the prosecutrix. Mr. Khare. Dy. G.A. supported the impugned judgment.