Kamlesh Sharma, J. -
(1.) This appeal is at the instance of accused Amar Dev, Arun Kumar and Nobhi Ram against the judgment dated 30/9/1988 whereby they were convicted of an offence under Sec. 376 of Indian Penal Code and sentenced lo four years rigorous imprisonment and fine of Rs.3,000.00 each. In default of payment of fine, each one of the accused was to suffer simple imprisonment for nine months. It was also ordered that out of the total fine, if realized, an. amount of Rs.5,000.00 would be paid to the prosecutrix.
(2.) The brief facts of the case arc that on 26/10/1986 at 7.05 PM Kumari Meena Devi, prosecutrix, lodged F.I.R., Ex. D-A, in Police Station, Keylong. Her allegations were that she, along with her brother, Bir Singh (P.W-2) and co-villagers, S/Sh. Dola Ram and Ram Singh (P.W-3) and (P.W-8), was working as labourer in H.P.P.W.D. Rest House at Kriting. All of them had gone there for earning their livelihood from their native village Dhar Tehsil Bali Chauki, District Mandi On 26/10/1986 all of them reached the Rest House at 7.00 A.M. and started working. At that time accused Arun Kumar, who was Junior Engineer and In charge of the work of the Rest House, accused Nobhi Ram, Chaukidar of the Rest House and accused Amar Dev, another Junior Engineer of H.P. P.W. D, were present in the Rest House and were taking liquor in its kitchen. After some Lime, accused Nobhi Ram came to the prosecutrix, Kumari Meena Devi (P.W-1), and asked her to go to the kitchen or the Rest House and cook meals for them to which she refused. But when she was threatened that her half days wages would be deducted, she agreed to cook meals for them and went into the kitchen. Thereafter, the other labourers, Bir Singh (P.W-2) brother of the prosecutrix, and Dole Ram and Ram Singh, were sent by the accused Arun Kumar to unload C.G.I. pipes from a truck at a distance of about 3 kilo meters. While Kumari Meena Devi was cooking meals in the kitchen, accused Amar Dev caught hold of her and forcibly poured liquor in her throat. Thereafter, all the accused started kissing her and fondling her breats. After some time, Amar Dev forcibly carried her to one of the rooms of the Rest House and indulged, in sexual intercourse with her against her will and consent. Other accused, Arun Kumar and Nobhi Ram also com milled rape on her without her consent. At this she became unconscious. When after some time she regained consciousness, she found herself bleeding from her vagina due to which her wearing apparel were partly soiled with blood. The room in which she was lying, was locked from outside, therefore, she started weeping and ultimately found her way out from the window of an adjoining latrine. By this time, her brother Bir Singh, Dola Ram and Ram Singh had come back and on their asking, Kumari Meena Devi narrated the whole incident to them. They took Kumari Meena Devi prosecutrix to police Post Jahlama where from they were sent to Police Station. Keylong, to lodge the F.I.R. Next day, on 27/10/1986 at 11.00 A.M., the prosecutrix was examined by Dr. Jaswant Singh (P.W-6) who issued medico-legal certificate, Ex. P. W -6/B. All the three accused were also put to medical examination by the same Doctor and medico-legal certificates, Ex. P.W-6/C to Ex. P.W-6/E, were given by him. Thereafter, investigation was completed, challan was put up and trial was held which resulted into the above stated judgment dated 30/9/1988.
(3.) I have heard the learned counsel for the parties and gone through the record. Sh. T.R. Chandel, learned counsel for S/Sh. Amar Dev, Arun Kumar and Nobhi Ram, has tried to pick holes in the prosecution net to see that his clients come out of it. The first point raised by the learned counsel is that it is impossible to believe that the prosecutrix, Kumari Meena Devi, who was rustic village girl, more than 18 years of age and employed as labourer, could be forced to drink liquor by the accused as alleged by the prosecution. According to him, it is probable that after working drinks voluntarily, the prosecutrix, Kumari Meena Devi became oblivious of the consequences and had voluntarily indulged in sexual intercourse but later on complained to save her face. Without disputing the age of the girl at the time of the complained of incident, the argument of Sh. T.R. Chandel, is liable to be rejected as it is based on conjectures only. As there is no evidence on record to even suggest that she was used to taking drinks or indulging in sexual intercourse, it is not probable that on the day of occurrence she was a willing party to both the vices. On the other hand, it has come on record that though poverty had forced her at her tender age to go to Keylong, at a distance of 200 Kilometers from her village Dhar, Tehsil Bali Chauki, District Mandi, to work as daily wage labourer, yet, she was working and living in the discipline of her brother and other co-villagers. Both Bir Singh (P.W-2), her brother, and Dole Ram (P.W-3) have corroborated her statement that she was reluctant to go to the kitchen of the Rest House to cook meals for the accused. She was forced to do so under the threat of deducting her half days wages.;