- (1.) Challenge in this appeal is to the judgment of a Division Bench of the Madhya Pradesh High Court, Gwalior Bench, upsetting the acquittal as recorded by learned Additional Sessions Judge, Ashok Nagar, in Sessions Trial No.12/86. Three accused persons namely the present appellants and one Chaturbhuj faced trial for alleged commission of offence punishable under Sections 376, 392, 342 and 506 of the Indian Penal Code, 1860 (in short the 'IPC'). The trial Court directed acquittal of all the three accused persons. In appeal filed by the State under Section 378 of the Code of Criminal Procedure, 1973 (in short the 'Code') the order of acquittal was set aside and accused persons were found guilty of offence punishable under Sections 342 and 376 of IPC. But it upheld the acquittal for offence relatable to Section 392 and 506 (II) IPC. The appellants were sentenced to undergo seven years and six months custodial sentence and fine with default stipulation for offences relatable to Sections 376 and 342 IPC.
(2.) Prosecution version which led to the trial of the accused persons is as follows: On 23.9.1985 in the evening prosecutrix alongwith her husband Dayaram went to Khajuria. On the way near the field of Mangal, appellants met them and started to abuse prosecutrix. Appellants also started beating husband of prosecutrix and took the prosecutrix near the well of Kamal Singh where accused Pooran Singh and Lalliram talked to Chaturbhuj. Dayaram was locked in a room. Then appellants took away the prosecutrix to the upper room of the house and committed rape repeatedly in the night. In the next morning they released prosecutrix and warned her not to report to anybody. Then she brought Dayaram from the room and at that time Latura, Gyarasa, Bharo Singh, Kamal Singh and Harihar reached there. They were informed about the incident. Appellants also snatched a bag from the prosecutrix containing Rs.25/- and identity card of Dayaram. Prosecutrix lodged the report in Police Station Madhogarh out post which is Ex.P1. Investigation was undertaken. Spot map was prepared which is Ex.P2. Prosecutrix was sent for medical examination vide Ex.P6 and she was examined by the lady doctor, Smt. C.P. Jain (PW-11) twice, first time on 25.9.1985 and then on 5.10.1985. Ex.P6 is the report pertaining to medical examination dated 25.9.1985. As per report Ex.P6 she gave opinion that no definite opinion can be given about rape. In the report it was stated that no external injuries were found on her body. The trial Court found that the evidence of Latura (PW-3) who is father of PW-2, Bharosa (PW-4) and Puliabai (PW-5) was inconsistent and the defence witness Maya probabilised the defence taken by the trial Court. Doctor also categorically stated that she was not pregnant on the alleged date of occurrence.
(3.) The High Court referred to the evidence of PWs. 1 and 2 i.e. the prosecutrix and Dayaram respectively and observed that the version of the prosecutrix was sufficient to fasten the guilt on the accused. Circumstances highlighted by the trial Court were not sufficient to warrant acquittal. Though the version as indicated in the First Information Report (in short the 'FIR') and the evidence in court were discrepant in certain aspects, it was held to be of no consequence.;