- (1.) All these three appeals are being decided by common judgment as they have been preferred by the abovenamed three accused-appellants against common judgment and order dated 17-3-1999 passed by the learned Additional Sessions Judge, Sojat, District Pali in Sessions Case No. 2/1996, by which he convicted and sentenced the accused-appellants in the following manner :- @@ Name of the accused appellant Convicted under Section Sentence awarded 1. Bhika Ram 376 IPC Seven years' RI and to pay fine of Rs. 1000/-, in default of payment of fine, to further undergo, three months' imprisonment. 2.Munni devi ) 376 read with Seven years' RI and to pay fine of Rs. 1000/-, in default of payment of fine, to further undergo, three months' imprisonment. 3.Veena @ Kiran ) 109 IPC @@
(2.) The facts giving rise to these three appeals, in short are as follows :- On 7-10-1995, P.W. 2 Bhanwarlal lodged a written report Ex. P/3 before P.W. 7 Kanhaiyalal, SHO, Police Station, Bagdi-nagar, District Pali stating inter alia that his house is situated near the bus stand in village Murdawa and on one side of his house, there is house and chakki of the accused-appellant and near the houses of both of them, there is a Primary Health Centre. It is further stated in the report that he lived in the village Chandawal, where he does the work of blacksmith. His daughter P.W. 8 Gulab (hereinafter referred to as the prosecutrix) was living with his mother and the age of the prosecutrix was about 12-13 years. It is further stated in the report that nearabout one month back he went to meet his brother Joraram at Jetaran and then he came to know that his daughter prosecutrix has become mad and his son P.W. 5 Jeevaram has gone to village Murdawa to take her and thereafter, his wife and brother-in-law also went to the village Murdawa and they took her back to village Chandawal and when he saw the prosecutrix at village Chandawal, he found that she was mad and, thereafter, finding that she was under the influence of Devta, she was taken to Hariyadhana (Bilara) at the place of Ratanji Bawji, where he stayed for five days and when no improvement was made in her condition, the Pujari told him to take her to Mandabada. Thereafter, he took his daughter (prosecutrix) to Chandawal and on that day accused-appellant-Kiran and Munni came there and they gave bottle of medicine to the prosecutrix, upon this, she became excited and she told them that run away otherwise she would broke their heads, as they have ruined her by giving something and her image was ruined. It is further stated in the report that even then he thought that prosecutrix was under the influence of madness and, thereafter, he took her to Manda, where she told that accused-appellant-Kiran exhibited blue films to her and also took her naked photos, after giving some drugs to her and she used to cry and told that she and her father also had reputation. It is further stated in the report that thereafter, he came back to his village from Manda and told to the villagers about his daughter prosecutrix Gulab and villagers told that prosecutrix wandered crying in the whole village and they found that she was under the influence of Devta. It is further stated in the report that on the next day, accused-appellant-Bhika Ram came to his house and told that if young girl would be kept alone, then such things would happen and, thereafter, father and mother of the accused-appellant-Bhikaram came at Chandawal and told that they met prosecutrix and offered Rs. 20,000/- and told that if their son had committed any mistake, he be pardoned. Thereafter, he came to know that his daughter was not under the influence of Devta, but some sin was hidden and thus, these persons have committed sin after giving some drugs to his daughter prosecutrix. It is further stated in the report that accused appellants-Munni and Kiran gave some drugs to the prosecutrix and, thereafter, her naked photos were taken and thus, her mental condition has become deteriorated and this incident has happened one and half months back and since he was under the impression that she was under the influence of Devta, the report could not be lodged earlier and the same is lodged now with some delay. On this report, police registered the case FIR Ex. P/4 for the offence under Ss. 328 and 384, I.P.C. and started investigation. During investigation, the prosecutrix P.W. 8 Gulab was got medically examined by P.W. 6 Dr. Dharam Chand Jain and her medical examination report is Ex. P/5 and the report by which her age was determined is Ex. P/6, where the doctor has opined that her age was from 16-18 years on the date of examination i.e. on 24-11-1995. After usual investigation, the police submitted challan against the accused-appellant-Bhikaram for the offence under S. 376, I.P.C. and against accused-appellants-Munni and Kiran for the offence under S. 376 read with S. 109, I.P.C., before the Court of Magistrate and from where the case was committed to the Court of Session. On 12-8-1997, the learned Additional Sessions Judge, Sojat framed charges against the accused-appellant-Bhikaram for the offence under S. 376, I.P.C. and against accused-appellants-Munni and Kiran for the offence under S. 376 read with S. 109, I.P.C. The charges were read over and explained to the accused-appellants. They denied the charges and claimed trial. In support of its case, the prosecution examined as many as nine witnesses and got exhibited several documents. Thereafter, statements of the accused-appellants under S. 313, Cr. P.C. were recorded. In defence, three witnesses were produced and some documents were also got exhibited. After conclusion of the trial, the learned Additional Sessions Judge, Sojat through his judgment and order dated 17-3-1999 convicted the accused-appellant-Bhikaram for the offence under S. 376, I.P.C. and accused-appellants-Munni and Kiran for the offence under S. 376 read with S. 109, I.P.C. and sentenced each of them in the manner as stated above. Aggrieved from the said judgment and order dated 17-3-1999 passed by the learned Additional Sessions Judge, Sojat, these three appeals have been preferred by the accused-appellants separately.
(3.) In these appeals, the following submissions have been made by the learned counsel for the accused-appellants :- 1. That prosecutrix P.W. 8 Gulab is a married lady aged about 16-18 years and accused-appellant-Bhikaram is her neighbour and before the alleged incident, both were having sexual relations not only at the house of accused-appellant-Bhikaram, but at the house of prosecutrix herself also and this fact is visible from the police statement marked as Ex. D/1. 2. That from the statement of the prosecutrix, it is also clear that she has been watching blue films in the presence of accused-appellants nearabout six months earlier to the alleged incident and she did not tell this to anybody else. Therefore, she was a consenting party to all the activities. 3. That statement of the prosecutrix is neither corroborated by the medical evidence nor by any other evidence. 4.That it is surprising that in the FIR Ex. P/3 which was lodged by P.W. 2 Bhanwarlal on 7-10-1995 though after one and half months, it is not mentioned that accused-appellant-Bhikaram committed rape on the prosecutrix. From this point of view also, no case of rape is made out. 5.That the learned Sessions Judge has grossly erred in placing reliance on the statement of the prosecutrix, which is full of contradictions and omissions. 6.That prosecution has failed to prove that accused-appellants-Munni Devi and Kiran instigated, abetted or intentionally aided the accused-appellant-Bhikaram. Thus, their conviction with the aid of S. 109, I.P.C. is bad. 7.That there is no evidence whatsoever against the accused-appellant-Munni Devi. It is, therefore, prayed that these appeals be allowed and the accused-appellants be acquitted of the charges framed against them. ;