SUNIL KUMAR GARG - (1.) The abovenamed accused appellants have preferred this appeal against the judgment and order dated 4-3-1999 passed by the learned Judge, Special Court, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Cases, Jodhpur in Sessions Case No. 54/98 by which he instead of convicting accused appellants under Sections 307, 376(2)(f) and (g), convicted both of them under Sections 366-A, 376 and 323, I.P.C. and sentenced each of them in the following manner :- Name of accused appellants Convicted under section Sentence awarded 1. Motichand ) 366A IPC Three years' SI and a fine of Rs.5,000/-, in default of payment of fine, to further undergo three months' SI. 2.Ramprasad ) 376 IPC Five years' SI and a fine of Rs. 5,000/-, in default of payment of fine, to further undergo three months' SI. 323 IPC One month SI. The above sentences were ordered to run concurrently.
(2.) The facts giving rise to this appeal, in short, are as follows :- On 14-3-1998 at about 3.00 a.m. in the morning, PW 1 Jetaram lodged a written report Ex. P-15 before PW 17 Motaram, SHO stating inter alia that on 13-3-1998 at about 10.00 p.m. he went to the house of his son-in-law Chhagna, PW 7 along with his wife PW 2 Smt. Rukma and in his Bada, which is near the Circuit House of Jodhpur, his children were sleeping. It is further stated in the report that Ram Prasad and Moti Chand (present accused appellants) and Prem Sagar also lived near his bada and they used to do the work of labour during day hours and in the night, they used to stay there. They have been staying there for the last one month and since they were living near his Bada, therefore, they were known to him (PW 1 Jetaram). When PW 1 Jetaram and his son-in-law Chhagna, PW 7 were talking, his daughter PW 10 Bhikhi came there wailing and told that accused appellants Ram Prasad and Moti Chand came in the Bada, where she was sleeping and took her away near the bushes, where accused appellant Ram Prasad committed rape on her and thereafter, accused appellant Moti Chand committed rape on her and they also bite her cheeks and blood came out and, thereafter, both accused appellants ran away. It is further stated in the report that when PW 1 Jetaram saw her daughter, he found that there were injuries on her cheeks, neck and blood was also coming from her vegina and even her clothes were stained with blood. On this report, police registered the case and started investigation. During investigation, site plan Ex. P/1 was prepared and PW 10 Bhikhi (Prosecutrix) was examined by PW 9 Dr. Smt. H. V. Singh and PW 13 Dr. N. S. Kothari for the purpose of ascertaining whether rape was committed on her or not and both doctors have given their report Ex. P-4 and injury report of PW 10 Bhikhi is Ex. P-7 which was prepared by PW 13 Dr. N. S. Kothari and fard by which age of PW 10 Bhikhi was determined is Ex. P/14 and for that PW 13 Dr. N. S. Kothari has been examined and in Ex. P-14, her age has been assessed above 9 years and below 14 years and ultimately about 12 years at the time of examination i.e. on 16-3-1998. Similarly, accused appellant Moti Chand was also got examined about his potency and his potency report is Ex. P-8 and three injuries were also found on his person and his injury report is Ex. P-9. Another accused appellant Ram Prasad was also got examined about his potency and his potency report is Ex. P-10 and ten injuries were also found on his person and his injury report is Ex. P-11. The underwear of accused appellant Ram Prasad was seized through Ex. P-17 and underwear of accused appellant Moti Chand was seizued through Ex. P-18 by PW 17 Motiram. After usual investigation, police submitted challan against the accused appellants before the Court of Magistrate and from where the case was committed to the Court of Session and, thereafter, the case was transferred to the Special Court, SC/ST Cases, Jodhpur. On 1-6-1998, the learned Judge, Special Court, SC/ST Cases, Jodhpur framed charges against the accused appellants under Sections 366-A, 376(2)(f) and 376(2)(g) and 307, I.P.C. The charges were read over and explained to the accused appellants. They denied the charges and claimed trial. During trial, the prosecution examined as many as 17 witnesses and got exhibited several documents. Thereafter, statements of the accused appellants under Section 313, Cr.P.C. were recorded. No evidence in defence was produced. However, three documents were got exhibited in defence by the accused appellants. After conclusion of trial, the learned Judge, Special Court, SC/ST Cases, Jodhpur through judgment and order dated 4-3-1999 did not find the case proved against the accused appellants for the offence under Sections 307 and 376(2)(f) and 376(2)(g), but found the case proved beyond reasonable doubt against both the accused appellants for the offence under Sections 366-A, 376 and 323, I.P.C. and sentenced for the said offences in the manner as stated above holding inter alia :- 1. That the age of the prosecutrix PW 10 Bhikhi has been determined by the learned trial Judge as 15 years 9 months. 2. That there was no necessity of holding identification parade of the accused appellants as PW 10 Bhikhi and PW 1 Jetaram knew accused appellants as they were neighbourers. 3.That the learned trial Judge has placed reliance on the testimony of PW 10 Bhikhi as her evidence was corroborated by medical evidence. 4.That both accused appellants committed rape on PW 10 Bhikhi. 5.That no case of gang rap was made out. Aggrieved from the said judgment and order dated 4-3-1999 passed by the learned Judge, Special Court, SC/ST Cases, Jodhpur, the present appeal has been filed by the accused appellants.
(3.) In this appeal, the following submissions have been made by the learned counsel for the accused appellants :- 1. That age of the prosecutrix PW 10 Bhikhi should be judged above 16 years and it is a case of consent. Hence, no case of rape against both accused appellants is made out. 2. That no case for the offence under Section 366A, IPC is made out against the accused appellants, as the prosecutrix PW 10 Bhikhi was not kidnapped with the intention that she will be seduced or forced to illicit intercourse by another person. Hence, it was prayed that this appeal be allowed and both accused appellants be acquitted of the charges framed against them. ;