SANDEEP MEHTA,J. - (1.) The instant appeal under Section 374 (2) Cr.P.C. has been preferred by the accused-appellants herein being aggrieved of the judgment dated 1.12.1992 passed by learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Udaipur in Sessions Case No. 44/90 whereby the appellants were convicted and sentenced as below:-- Offence Under Section Imprisonment Fine Sentence in default of fine Rs.100/- 376 I.P.C. 2 Years' RI 1 Month's SI Rs.100/- 366 I.P.C. 1 Year's RI 1 Month's SI (Both the sentences were ordered to run concurrently)
(2.) Brief facts relevant and essential for the disposal of the appeal are noted hereinbelow:-- The oral report of the incident (which was surprisingly not exhibited by the prosecution and was rather exhibited by the defence as Ex.D/3) came to be lodged by the first informant Mst. 'S' at the Police Station Gogunda on 23.2.1987 at 5.00 pm wherein the prosecutrix alleged that a couple of days earlier, she had gone to Village Gogunda to purchase bangles. After having purchased bangles, she started for the village Obra. On the way, a young boy of Mahajan community, resident of village Gogunda came around on a bicycle. He caught hold of her hand. Another Mahajan boy came there on foot. Both these boys forcibly took away the bag being carried by the prosecutrix in which certain silver ornaments were lying. She pleaded with the boys to return the bag on which her mouth was gagged and she was forcibly made to board the bicycle and was taken to the well of a Sunar (goldsmith). Two other boys were present at the well. Another boy of Modi village came there. The Mahajan boys, who had brought the prosecutrix on the bicycle demanded the key of the room but the boys present at the well refused on which the Mahajan boys forcibly snatched the keys. The three boys i.e., the two Mahajan boys and the boy of Modi Village took her inside the room and then tried to rape her. She resisted on which she was beaten. Thereafter, all the three boys subjected her to forcible sexual intercourse one after the other. On the next day also, all the three boys stayed with her inside the room. No one had anything to eat but in the night time, at about 11-12 O' clock, the three boys took her out of the room and took her to the road. She was boarded on to a truck. She got down from the truck and went home and shared this unfortunate set of events with her sister. She alleged that she did not know the names of the three boys who had raped her and that these boys were having the bag containing her ornaments. On the basis of the report aforestated, an FIR No. 13/87 was registered at the Police Station Gogunda and investigation was commenced. The accused- appellants and the co-accused Bhagwatilal were arrested and were then subjected to test identification proceedings where, the prosecutrix Mst. 'S' (PW.7) identified all three correctly. After investigation, a charge sheet came to be filed against the appellants herein and one co-accused Bhagwatilal for the offences under Sections 366 and 376 I.P.C. The case was committed and transferred to the Court of learned Special Judge, SC/ST (Prevention of Atrocities Act) Cases, Udaipur for trial. The Trial Court, framed charges against the appellants and the co-accused Bhagwatilal for these offences. The accused pleaded not guilty and claimed trial. The prosecution examined as many as 21 witnesses to prove its case. It may be mentioned here that the prosecutrix Mst. 'S' who was examined as PW.7 totally gave up her allegations to the extent of the co-accused Bhagwatilal and was declared hostile to his extent. She resiled from her allegations attributed to the said accused in her police statement and denied the same when confronted with the same by the public prosecutor. The accused appellants and the co-accused Bhagwatilal were confronted with the prosecution allegations when examined under Section 313 Cr.P.C. They denied the same and claimed to have been falsely implicated. At the conclusion of the trial, the learned Trial Court proceeded to acquit the co-accused Bhagwatilal for lack of evidence but the appellants herein have been convicted and sentenced as above. Hence this appeal.
(3.) Shri Ravi Bhansali, learned Senior Counsel assisted by Shri Vipul Dharnia, Advocate representing the accused-appellants vehemently and fervently urged that the entire prosecution case is false and fabricated. The prosecutrix was a woman of easy virtue and she implicated the appellants falsely in this case for the purpose of extracting money. When she was examined on oath, she categorically admitted that she had compromised the matter with the co- accused Bhagwatilal after some monetary transaction took place between them and that is why, she gave up her allegations to his extent. He further submitted that the accused were not named in the FIR and their identification by the prosecutrix is tainted because she admitted in her cross-examination that the accused persons were shown to her by the police before the test identification proceedings were held. He thus urges that the appellants too deserve to be acquitted by discarding the testimony of the prosecutrix which is vacillating and unreliable.;