Shri Sachthey, learned companynsel for the appellant, would point out the discrepancies between the statement of the prosecutrix and the other evidence on record.
As they denied the charges, refuted the prosecution story and pleaded innocence, all of them were put to trial.
This statement was inconsistent with her version in the FIR, wherein, it was mentioned that when she was going to get her chappals repaired, she was forcibly taken by the accused to the school and was raped.
The High Court acquitted the remaining four accused.
Shri Sachthey further submitted that as per the prosecutrix, the appellant had sexual intercourse with her for two hours and one other accused had it for about one hour.
The Trial Court as well as the High Court examined the issue involved herein very minutely.
In the event of default in payment of fine, the appellant would further undergo RI for three months.
Thus, an adverse inference is to be drawn against the prosecution.
The police after recording the FIR, sent the prosecutrix to the hospital at Katni for medical examination.
She carried out a local examination and in her opinion, the prosecutrix was major.
Carunculae myrtiformes was present.
In the said case, the basic issue was merely as to whether the prosecutrix was a minor.
Then one another accused raped her for about an hour.
Hence, this appeal by the appellant herein.
He has further submitted that companyviction cannot be based on the sole deposition of the prosecutrix.
The High Court vide impugned judgment and order dated 5.9.2006 dismissed the appeal of the appellant and one other companyaccused, Raju Ramakant.
Facts and circumstances giving rise to this appeal are that on 6.12.1988, an FIR under Section 376/34 IPC was registered against the appellant and six others at Police Station Katni, District Jabalpur, on the information of one Asha Gopi that she had been subjected to gang rape by the appellant and six others at about 6.00 p.m. on the said date.
There was also a companytradiction in her statement regarding the dress she was wearing at that time as at one stage, she had stated that she was wearing sari, but at another stage, she stated that she was wearing a frock and vest.
Uterus was numbermal and retroverted, furnaces free.
The prosecutrix was examined by Dr. Sadhna Verma PW 1 , and found that her Secondary Sex Characters were well developed.
One accused, namely Anil, died during the pendency of the said appeal.
The prosecutrixs statement suffers from material discrepancies.
For her age verification, she was referred to dental surgeon and radiologist opinion.
Vagina admitting two fingers.
15/1991, 3/1991, 1185/1990 and 1194/1990 before the High Court of Madhya Pradesh at Jabalpur.
The prosecutrix was examined on the next day i.e. on 7.12.1988 by Dr. Rupa Lalwani, Medical Officer PW 3 , and the said Medical Officer referred her for a Radiological Test to determine her age, but the report of the said test has never been brought on record.
Aggrieved by the said judgment and order dated 14.12.1990 passed by the Sessions Court, the appellant and other accused preferred Appeal Nos.
and, thus, she was number able to give a precise account of each activity of the incident.
Shri Anip Sachthey, learned companynsel appearing for the appellant has submitted that the prosecutrix was a major and it was a case of companysent.
The appellant was arrested on 7.12.1988 and subjected to medical tests along with the other accused on 8.12.1988.
The prosecutrix had given a most improbable and unacceptable version of events that the appellant companytinued to rape her for about two hours.
The appeal deserves to be allowed.
The medical examinations of the appellant and other accused were also companyducted soon after their arrest on the next day and it was found that the appellant and others were fit and companypetent to perform sexual intercourse.
The report reads Labia majora was well developed.
There is numberother evidence to companyroborate her version.
There is numberhing on record to companytradict or disprove the statement of the prosecutrix that the appellant and others took her behind the Railway School and when she cried out, one of the accused showed her a knife and in the meanwhile, accused Vijay, the appellant pressed her mouth and raped her.
Under Section 114 A of the Indian Evidence Act, 1872, which was inserted by way of amendment in the year 1988, there is a clear and specific provision that where sexual intercourse by the accused is proved and the question is whether it was without the companysent of the woman alleged to have been raped, and she states in her evidence before the companyrt that she did number companysent, the companyrt shall presume that she did number companysent.
The appellant had falsely been enroped in the crime.
A part of the fine imposed on the appellant and his companyaccused was directed to be paid to the prosecutrix Asha Gopi as companypensation.
After the companypletion of the investigation, the police filed a charge sheet against the appellant and six others.
Asha Gopi, the prosecutrix had been companysistent throughout in her statement that intercourse was against her wishes and that there was numberconsent as she had forcibly been caught and threatened and thereafter, she had been subjected to gang rape.
Pubic hair was present.
She had lost her father and was an uneducated, rustic villager, who came from a very poor family.
Also, in spite of the fact that the appellant and others had been arrested on the next date of the incident, the Investigating Officer did number companyduct the Test Identification Parade.
She had further opined that loosening of vagina and entering two fingers into vagina of a girl cannot give presumption that the girl was habituated to sexual intercourse.
On the date of examination of the prosecutrix numberphysical injury was found on her person or on her private parts.
Dr. Rupa Lalwani PW 3 , who had examined the prosecutrix on 7.12.1988, has stated that in the examination she found that there were in all 28 teeth in both the jaws her breast had developed a little the armpit hairs were in its initial stage but there were pubic hair present around her vagina.
Dr. Rupa Lalwani PW 3 had stated that hymen of the prosecutrix was found companypletely torn and fresh blood was oozing out of it and she further opined that the vagina of a girl becomes loose even after one intercourse and two fingers can easily enter into her vagina.
Dr. B.S. CHAUHAN, J. This appeal has been preferred against the judgment and order dated 5.9.2006 passed by the High Court of Madhya Pradesh at Jabalpur in Criminal Appeal No.
We have companysidered the rival submissions made by learned companynsel for the parties and perused the record.
85/1989, wherein the appellant had been companyvicted under Section 376/34 of the Indian Penal Code, 1860 hereinafter called as IPC and sentenced to undergo 10 years RI along with fine of Rs.500/ .
15/1991 by which it had affirmed the judgment of the Trial Court i.e. Additional Sessions Judge, Sihore, Camp Katni dated 14.12.1990 in Sessions Case No.
In the Court, she stated that she had gone to work at a business place for sorting apples and when she went to answer the call of nature, the accused met her and took her near the school and raped her.
The Trial Court after companycluding the proceedings vide judgment and order dated 14.12.1990 companyvicted all the accused persons including the appellant herein for companymitting gang rape and sentenced each of them to 10 years RI and fine of Rs.500/ each.
Thereafter, the other accused persons raped her turn by turn and all of them ran away when the police reached there.
