The judgment emphasized the need for the prosecutrix to be a 'sterling witness' and the presumption of absence of consent under Section 114A of the Evidence Act. The court highlighted the importance of scrutinizing the evidence of the prosecutrix and the potential distress and damage caused by false allegations of rape.

JUDGMENT :

SHAILENDRA SHUKLA, J.

1. Appellants Jagdish and Munnalal have filed these separate appeals under Section 374 of Cr.P.C against the judgment dated 27.11.2010 pronounced by 16th ASJ, (Fast Track), Indore, in S.T. No. 1233/2009, whereby the appellants have been convicted under Section 376(2)(G) of IPC and sentenced to Life Imprisonment with fine of Rs.2,000/-each. In lieu of payment of fine amount, they have been directed to undergo 6 months’ R.I.

2. Briefly stated the facts as set out in prosecution case are that on 20.7.2009, a report was lodged at police station Heera Nagar, Indore by the prosecutrix that she has been living with her maternal grand mother Radhabai at Ujjain whereas, her mother Varsha had left her father namely Ravi 4 years ago and since then her mother along with the brother of the prosecutrix were residing with step father Mukesh (acquitted accused) at Indore as tenant in the house of appellant Munnalal. On 5.7.2009, the prosecutrix had come with her grand mother Radhabai from Ujjain to Indore. On 20.7.2009, at about 10.00 am, her step father came to the house along with the appellants Munnalal and Jagdish and asked her mother to accompany him and took her along with him. Thereafter, the appellants went out and sat on the terrace of the house. Subsequently, after 5 to 10 minutes appellant Jagdish entered the house and asked the prosecutrix that if her father had told her that these persons would come and would do whatever they want and she would get paid for the same. Subsequently, accused Jagdish took out the clothes of the prosecutrix, tied her hands with Dupatta, kissed her cheeks and ran his hands over her body and left the room. Appellant Munnalal subsequently entered the room and forcibly committed rape upon prosecutrix and threatened her that if she discloses anything about it to her mother or brother then both of them would be killed. As per prosecutrix, she disclosed the incident to her father, but the father (Mukesh) asked her to keep quite and carry on with the same, as she will get money for it. On 5.8.2009, the prosecutrix and her grand mother came to Indore. The prosecutrix went along with her to Ujjain. Later on, when the step father of the prosecutrix rang her up on 11.8.2009 and asked her to come to Indore, she refused and when her grand mother asked the reason for refusal, she narrated the alleged incident in detail. Then grand mother Radhabai called up the mother of the prosecutrix to come down to Ujjain and thereafter the prosecutrix lodged report against her step father and the appellants.

3. The Investigating Officer, after lodging of FIR, commenced the investigation and sent the prosecutrix for medical examination. Subsequently, the appellants were also medically examined. The radiological report in respect of age of the prosecutrix was also conducted. The sealed swab, slides, and inner garments of appellants and prosecutrix were sent to FSL for examination. After carrying out rest of the investigation, charge sheet was filed under Section 376(2) (g) of IPC, 120B and 109 of IPC.

4. After committal proceedings, the learned ASJ, Indore, framed charge under Section 376(2)(g) of IPC against both the appellants, i.e., Munnalal and Jagdish whereas charges under Sections 120B and 109 of IPC were framed against Mukesh. All the accused abjured their guilt and claimed innocence. The prosecution has examined 16 witnesses in support whereas, the appellants have examined 7 witnesses. The defence of the appellant Jagdish is that prosecutrix along with her mother and grand mother have falsely implicated him in conspiracy with villagers. The defence which has been taken by Munnalal is that the prosecutrix and her mother and grand mother have lodged false report against him after having collaborated with police.

5. The grounds which have been taken by the appellants in their separate appeals conjointly speaking are that the learned Judge has erred in not considering the fact that the FIR in the ins