Ramesh vs State Of M.P

1. Appellant aggrieved by his conviction for the offence under Section 363, 366, 342 and 376(2)(g) of the Indian Penal Code and sentence to undergo rigorous imprisonment for the period of five years, five years, one year and ten years respectively and fine, has preferred this appeal with the leave of the Court.

2. According to the prosecution PW.1, Radha Bai, the victim of the crime along with her two sisters, namely, Sunita and PW.4, Anita had gone to witness a movie in a video-hall at 21:00 hours on 8th November, 1988. In the midnight, while Radha Bai came out of the hall to answer the call of nature 2 and went in a lane at that point of time the two accused namely, Ramesh (appellant herein) and Dinesh caught her and took her forcibly inside a tailoring shop and closed its doors.

Sunita and Anita, the two sisters of the victim Radha Bai returned to their house and when it was found that she had not reached her home, a search was made to locate her by PW.3, Damaji, the father of the victim girl and other witnesses.

Informant asked the appellant and the accused Dinesh to open the shop but they declined. The informant gave report in regard to the incident to the Officer-Incharge of the Sausar Police Station at 09:00 hours on 9th November, 1988.

According to the informant Radha Bai aged about 15 years had been kidnapped and confined in the tailoring shop styled as "Famous Tailors". After registration of the case, the Sausar Police along with the informant and others came to the shop 3 and in their presence accused Dinesh unlocked the shop and the victim was recovered from the said shop. She was first taken to the Police Station and thereafter sent to the Hospital for medical examination where she was examined by Dr. Paramjit Kaur. She was also examined by PW.9, Dr. S.K. Dubey to ascertain her age. Appellant as also accused Dinesh after arrest were sent for their medical examination and as per the report (Exhibit P-6 and P-7) of Dr. R. Agarwal, both of them were found to be capable of sexual intercourse. The cloth of victim and both the accused were seized and sent to the Forensic Science Laboratory which sent its report (Exhibit P.13).

5. On appraisal of the oral and documentary evidence on record the trial court came to the conclusion that the victim was below 16 years of age on the date of occurrence. Further after she was kidnapped and confined in the tailoring-shop by both the accused it also held that accused Dinesh had sexual intercourse with her. Accordingly it convicted both of them for offence under Section 363, 366, 342 and 376 (2)(g) of the Indian Penal Code and sentenced them to various terms of imprisonment, which were directed to run consecutively.

9. We do not find any substance in the submission of Mr. Singh. PW.1, Radha Bai, the victim in her evidence has stated that she had gone to witness a movie in the video-hall along with her two sisters Sunita and PW.4, Anita and in the midst of the show she came out of the hall to answer the nature's call in a lane where the appellant and the convict caught her and forcibly brought her to the tailoring-shop. She has further stated that convict Dinesh closed the shop from inside and after removing her cloths subjected her to rape. She further deposed that appellant Ramesh was present there and had pressed her breasts and in the course of ravishment she attempted to raise alarm but nobody came to her rescue. The medical-report (Exhibit P-2) of Dr. Paramjit Kaur reveals that the victim had no mark of injury internal or external on her 7 person and she being habitual to sexual intercourse no definite opinion of rape could be given. The report of the Forensic Science Laboratory, however, reveals the existence of human semen on the cloths of the victim and convict Dinesh.

cert with the common intention to commit rape on the victim;

(iii) that in furtherance of such common intention one or more persons of the group actually commit-

ted offence of rape on victim or victims. Prosecution is not required to prove actual commission of rape by each and every accused forming group.

Hence, we reject this submission of Mr. Singh.

15. We accordingly find no merit in this appeal and it is dismissed accordingly. The appellant is on bail, his bail bonds are cancelled and he is directed to surrender forthwith to serve out the sentence.