LexKAILASH @ TANTI BANJARA versus STATE OF MADHYA PRADESH
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[2013] 4 S.C.R. 875 KAILASH @ TANTI BANJARA v. STATE OF MADHYA PRADESH (Criminal App~al No. 1962 of 2010) APRIL 10, 2013 [DR. B.S. CHAUHAN AND FAKKIR MOHAMED IBRAHIM KALIFULLA, JJ.] A B Penal Code, 1860 - ss. 376 and 5068 - Rape - Courts below though found that the intercourse was with the consent C of prosecutrix, but convicted him finding that the prosecutrix was 14 years of age - On appeal, held: Conviction justified - In view of the conclusion that the prosecutrix was in the age group of 13-14 years, consent of the prosecutrix has no consequence. D Vijay @ Chinee vs. State of Madhya Pradesh (2010) 8 SCC 191 : 2010 (8) SCR 1150 • relied on. Case Law Reference: 2010 (8) SCR 1150 relied on Para 5 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1962 of 2010. E From the Judgment and Order dated 09.10.2009 of the F High Court of Madhya Pradesh at Jabalpur in Criminal Appeal No. 1395 of 1994. Rajeev Kumar Bansal, M.P. Singh, Akshay K. Ghai for the Appellant. Vibha Datta Makhija for the Respondent. The following Order of the Court was delivered 875 G H A 876 SUPREME COURT REPORTS [2013] 4 S.C.R. ORDER 1. This appeal is directed against the impugned judgment of the High Court of Madhya Pradesh at Jabalpur in Criminal Appeal No.1395/1994 by which the conviction and sentence 8 imposed on the appellant under Section 376 IPC to undergo rigorous imprisonment for seven years apart from a fine amount of Rs.500/- and in default of payment of fine, to under one months' additional rigorous imprisonment was confirmed. 2. According to the prosecution on 11.4.1991 the victim C P.W.4, an agricultural labourer was in the field of Mali Singh Darbar and loading the wheat on the vehicle. After the field work, she was proceeding to her village which was 1% miles away. The appellant was following P.W.4 who was proceeding alongwith minor girl Manju, aged 10 years in his motorcycle. D On the way, P.W.4 suffered thorn bite in her foot and while she was removing the thorn, Manju left her and proceeded towards her home. Taking advantage of the !onliness of P.W.4, the appellant stated to have grabbed her hand against her will, took her near the bushes at Kauve near the drain and had forcible E sexual intercourse for about Y. an hour. According to the victim P.W.4, sexual intercourse was carried out by the appellant near the drain and again after taking her to his house under the threat of knife point and performed the same evil act in the house also. Subsequently at about 3.00 in the midnight, he took her in his F motorcycle and dropped near the community well and after threatening her at knife point that if she reveal any of the act committed by him, she would kill her, left that place. P.W.4 felt humiliated and having ashamed of loss of modesty, jumped into the community well while the appellant stated to have fled away G from that place. Though P.W.4 jumped into the well, according to her, she was able to grab the rope which was present inside the well and she cried for help. On hearing her distress call, the villagers stated to have turned up and rescued her. Thereafter, her father and grand father stated to have reached that place whereafter she was taken to her house and after change of H KAILASH @ TANTI BANJARA v. STATE OF MADHYA 877 PRADESH cloth she went to the Police Station and lodged the FIR. A 3. The appellant was charged for the offence under Section 376 read with Section 506 B, IPC. The trial Court after a detailed consideration of the evidence placed before it concluded that the FSL report, Exhibit P .14 established that in the peticoat of 8 P.W.4, in her private parts as well as the vagina, human sperms was found present and therefore the plea of ignorance pleaded by the appellant was not true. The trial court however, r.oncluded that the intercourse was with the consent of P.W.4. Based on the expert evidence and applying the principles for ascertaining the age of the victim, the trial court has concluded as under: C "14. For ascertaining the age the position of gums, private part and under arms are of great help. According to the statement of Dr. Smt. Saluja (P.W.2) 7 teeth in the right and 6 teeth in the left total 13 teeth were found in the upper D jaw. In the lower jaw 7-7 teeth in the right and left sides were found. Therefore, total 14 teeth were found in the lower jaw. It is clear from the position of the teeth that th
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