- (1.) The above named accused appellant has preferred the appeal No. 543/1995 against the judgment and order dated 17-10-1995 passed by the learned Additional Sessions Judge No. 2, Sri Ganganagar in Sessions Case No. 40/94 by which he convicted the accused appellant for the offence under S. 376 IPC and sentenced him to seven years' Rigorous Imprisonment and a fine of Rs. 500/- and in default of payment of fine, to further undergo simple imprisonment for six months. Note :- That accused appellant has earlier preferred S.B.Cr. Jail Appeal No. 494/95 against the same judgment and order and since regular appeal has been field by him being S.B. Cr. Appeal No. 543/95 and the same is being represented by counsel, judgment is being passed in the main appeal and the jail appeal has been ordered to be tagged with the main appeal. 2.That this Court vide order dated 15-1-1996 issued suo motu notice under S. 397 Cr.P.C. asking the accused appellant to show cause why the punishment of seven years rigorous imprisonment be not enhanced and for that, a separate S.B. Cr. Revision No. 69/96 has been registered and that revision would also be disposed of by this judgment.
(2.) It arises in the following circum-stances :- PW1 Laxmi lodged an oral report in the Police Station Sadar Sri Ganganagar on 29-7-1994 at about 2.35 PM to PW4 Sahiram, SHO of that Police Station stating that before that alleged incident she used to live with her grand mother and since 7-8 months back, she has come to the house of her father (present accused appellant) and, thereafter, she was living with her father, accused appellant. It is further alleged that accused appellant after taking liquor used to see her with lusty eyes and even in the presence of her mother PW3 Kalawati, accused appellant teased her and upon that, PW3 Kalawati made hue and cry and since then accused has become more annoyed. It is further alleged that on the last Monday in the night at about 10.00 PM when she was sleeping, accused appellant took her to the cot and after putting dupatta in her mouth, he unclothed her and, thereafter, committed rape on her. It is further alleged in the report that this incident was told by her to her mother PW3 Kalawati and when her mother PW3 Kalawati made a complaint to accused appellant, he beat her. It is further alleged in the report that thereafter, on 28-7-1994 at about 10.00 PM accused appellant after awakening PW1 Laxmi, took her to his cot and put off her clothes and raped her twice for one hour. This incident was also narrated by PW1 Laxmi to her mother PW3 Kalawati and thus, a report in this respect has been lodged by PW1 Laxmi. On this report, PW4 Sahiram chalked out police FIR Ex.P/5 and started investigation. During investigation, both accused appellant and PW1 Laxmi were got medically examined. The medical report of PW1 Laxmi is Ex. P/2 and report about her age is Ex. P/4. The medical report of accused appellant is Ex. P/3. The accused appellant was arrested through Ex. P/7 on 31-7-1994. After investigation, the police submitted a challan before the Court of Magistrate and, thereafter, the case was committed to the Court of Session. The learned Additional Sessions Judge No. 2, Sri Ganganagar on 21-3-1995 framed charge against the accused appellant for the offence under S. 376 IPC for the incident which took place on 28-7-1994 at 10.00 PM. The charge was read over and explained to the accused appellant, who pleaded not guilty and claimed trial. In support of its case, the prosecution examined only four witnesses and some documents were got exhibited and, thereafter, statement of the accused appellant was recorded under S. 313 Cr.P.C. and some documents were also produced by accused appellant. The accused appellant produced three witnesses in his defence and he was also examined as DW1. The learned Additional Sessions Judge No. 2, after recording evidence and considering the material available on record, came to the conclusion that the prosecution has proved its case beyond reasonable doubt against the accused appellant for the offence under S. 376 IPC and thus, through his judgment and order dated 17-10-1995, he convicted the accused appellant for the said offence under S. 376 IPC and sentenced as stated above. Aggrieved from the said judgment and order dated 17-10-1995 passed by the learned Additional Sessions Judge No. 2, Sri Ganganagar, the accused appellant has preferred jail appeal as well as regular appeal.
(3.) In this appeal, the learned counsel for the accused appellant has made the following submissions :- 1. That statement of prosecutrix PW1 Laxmi does not repose confidence as the same suffers from infirmities and is not corroborated by the medical as well as other evidence and hence, she should not be believed. 2. That whole story of committing rape is concocted one, as it is not possible to commit such type of rape as has been alleged by the prosecutrix PW1 Laxmi in her report Ex. P/5 and in her statement as PW1. 3. That prosecution story in respect of commission of offence of rape has not been corroborated by the medical evidence, inasmuch as, the medical report says that hymen of the prosecutrix PW1 Laxmi was quite intact and there were only redness around the vaginal orifice and thus, the manner in which rape has been committed, hymen should have been ruptured. Hence, whole prosecution story is concocted one. 4.That since there has been a litigation between Kalawati, PW3, mother of PW1 Laxmi and the accused appellant previous to that incident and also there was a litigation between the Mama of PW1 Laxmi with the accused appellant, therefore, this false case has been lodged by PW1 Laxmi against the accused appellant. 5.That learned Additional Sessions Judge No. 2 has not considered the affidavits Ex. D/1 of PW1 Laxmi and Ex. D/3 of PW3 Kalawati produced in defence and further, defence evidence has not been correctly and properly appreciated by the learned Additional Sessions Judge No. 2 and, therefore, findings of conviction should not be sustained and accused appellant is entitled to acquittal. 6.That since there were loopholes in the investigation of the case, therefore, accused appellant should be acquitted of the charge under S. 376 IPC. ;