( 1. ) THIS judgment shall govern the disposal of this appeal as well as Criminal Appeal No. 1198/2001 (Ramnarayan Bishnoi v. State of M. P.) and Criminal Appeal No. 1233/2001 (Brij Bhushan Sharma v. State of M. P. ).

( 2. ) AS all these appeals arise out of the judgment passed by IIIrd Additional Sessions Judge (Fast Track Court), Betul in Special Case No. 13/91, whereby all the appellants were acquitted of an offence punishable under Section 3 (1) (xii) of the SC/st (Prevention of Atrocities) Act, 1989 (henceforth, the Act) but all of them have been convicted for an offence punishable under Section 376 (2) (g) of the Indian Penal Code (for short, the IPC) and appellant Brij Bhushan Sharma has been sentenced to imprisonment for life with fine of Rs. 25,000/- and in default whereof with further imprisonment for 2 1/2 years, appellants Ramnarayan Bishnoi and Diwakar Rao Makode have been sentenced to R. I. for 7 years each with fine of Rs. 10,000/- each in default whereof R. I. for one year each, they are being disposed of by this common judgment.

( 3. ) THE prosecution case as portrayed during trial is that prosecutrix Sukkobai (P. W. 1) is the wife of Sadhu (P. W. 3) and resident of Village Mardwani. She belongs to Scheduled Tribe. Appellant Ramnarayan Bishnoi is also a resident to Village Mardwani and his house is situated close to the house of prosecutrix. Three or four days prior to the date of incident, a police party from Betul visited Village Mardwani in connection with a dacoity. Accused/appellants Brij Bhushan Sharma, Sub Inspector and Diwakar Rao Makode, Head Constable were also the members of this police party.

( 4. ) ON 30-10-90, at about 8 PM, all the three appellants reached the house of the prosecutrix. Appellant B. B. Sharma asked Sadhu P. W. 3, the husband of the prosecutrix and also appellant Diwakar Makode to go to the nearby Hillock to listen the news from radio as the radio set was not functioning well inside the house, and to inform him about the news. As the prosecutrix was suffering from fever, B. B. Sharma on a pretext of seeing her body temperature caught hold of the hand of the prosecutrix and assured her to give medicine. Appellant B. B. Sharma asked the prosecutrix to put her bed in the inner room. Accordingly, when the prosecutrix put her bed in the inner room, appellant B. B. Sharma committed rape on her. Appellant Ramnarayan who was present with the B. B. Sharma threatened the prosecutrix that if she made any complaint regarding the incident of rape, her husband will be sent to jail on the charge of theft.

( 5. ) AFTER some time appellant Diwakar Makode and the husband of the prosecutrix returned. Thereafter, appellants left the house of the prosecutrix stating that they are going to Betul. Because of the apprehension that if she would make any complaint to her husband, he will take it otherwise and because of the fear that her husband will be sent to jail by B. B. Sharma on the charge of theft, the appellant kept mum for a day.

( 6. ) ON the next day when the husband of the prosecutrix went to his field, the prosecutrix narrated the said act of the appellants to her brother Maha Singh (P. W. 2 ). The other inhabitants of the village also learnt about it. On 12-11-1990, the prosecutrix submitted an affidavit Ex. P-2 at Police Station,. Betul. After an inquiry on the basis of affidavit offenses under Sections 376

(2) (g) of the IPC and 3 (I) (XII) of the Act were registered against the appellants.

( 7. ) PROSECUTRIX was examined by Dr. Smt. Sudha Jain, Assistant Surgeon on 12-11-90 who found an old radiate tear present on her hymen. Vagina was admitting two fingers easily. Dr. Smt. Sudha Jain collected vaginal smear, prepared slides of the same and handed over to the police constable concerned. Dr. Smt. Sudha Jain opined that no definite opinion can be given regarding rape on the prosecutrix, as she was accustomed to sexual intercourse. However, she referred the matter to gynecologist for expert