SUNIL KUMAR GARG,J. - (1.) THIS appeal has been filed by the accused appellant against the judgment and order dated 10.5.2001 passed by the learned Addl. Sessions Judge No. 2, Hanumangarh in Sessions Case No. 43/98 by which he convicted the accused appellant for the offence Under Sections 376, 323 and 341 IPC and sentenced in the following manner: Name of accused Convicted Sentence awarded appellant Under Section Umesh 376 IPC Ten years RI and to pay fine of Rs. 200/ -, in default of payment of fine, to further undergo two months imprisonment. 323 IPC Three months SI and to pay fine of Rs. 100/ -, in default of payment of fine, to further undergo one month imprisonment. 341 IPC One month SI. All the above substantive sentences were ordered to run concurrently.
(2.) THE facts giving rise to this appeal, in short, are as follows: On 15.4.1998, at about 11.30 AM, PW -6 Rampyari (hereinafter referred to as the prosecutrix) lodged a written report Ex.D/2 before the Police Station, Hanumangarh Town stating inter alia that she was living in Hanumangarh Town with her family and on 12.4.1998 at about 11.00 PM in the night she went from her house to take water from the public hand -pump and when she was returning after taking water the accused Akla, Sakla and Umesh (accused appellant) caused wrongful restraint to her and beat her, as a result of which, she received injuries on her eyes and they molested her also with an intention and outrage her modesty and when she made hue and cry, her father -in -law Upendra Das, PW -7 and her Bhabhi Manju Devi, PW -8 came there and they rescued her from them. It was further stated in the report that thereafter Panchayat was held and now she had come to lodge the report. On this report, police registered the case for the offence Under Sections 341, 323 and 354 IPC and chalked out regular FIR Ex.P/14 and started investigation. In the meanwhile, on 17.4.1998, the prosecutrix PW -6 Rampyari lodged a written complaint Ex.P/7 in the Court of Addl. Chief Judicial Magistrate, Hanumangarh against eight persons including those three persons, whose names were mentioned by her in report Ex.D/2 and in this complaint, she has made allegations that rape was committed with her by Akla, Sakla and present accused appellant Umesh and she has also stated that rape was committed with her in the shop of accused appellant Umesh and on her making hue and cry PW -7 Upendra Das and PW -8 Manju Devi came there and thereafter, the shutter of the shop was opened by accused persons and Jeevachhdas, PW -1 also came there. The copy of that complaint was also sent to the police. During investigation, the accused appellant Umesh was arrested by the police on 29.7.1998 through arrest memo Ex.P/10 and on 20.4.1998, the learned Addl. Chief Judicial Magistrate through Ex.D/4 directed SHO Police Station, Hanumangarh that medical examination of the prosecutrix PW -6 Rampyari be got conducted and if she wanted to produce her clothes, they may be taken. The prosecutrix PW -6 Rampyari was got medically examined by PW -3 Dr. Brijesh Gaur on 22.4.1998 and her medical examination report is Ex.P/2. After usual investigation, police filed challan only against two persons, namely, Umesh (present accused appellant) and Sakla for the offence Under Sections 376, 323, 341 and 354 IPC in the Court of Magistrate, from where the case was committed to the Court of Session. It may be stated here that against rest accused persons whose names were mentioned in the complaint Ex.P/7, challan was not filed by the police. On 15.1.1999, the learned Addl. Sessions Juge No. 2, Hanumangarh framed charges for the offence Under Sections 341/34, 376/34 and 323/34 IPC against the present accused appellant Umesh and another accused Akleshwar. The charges were read over and explained to the accused persons. They denied the charges and claimed trial. During the course of trial, the prosecution in support of its case examined as many as 12 witnesses and got exhibited some documents. Thereafter, statements of accused persons Under Section 313 Cr.P.C. were recorded and three witnesses were produced in defence. Note: 1. That during trial before the learned Addl. Sessions Judge No. 2, Hanumangarh, another accused Akleshwar died, therefore, proceedings were dropped against him. 2. That from the record it also reveals that on 15.9.2000 an application Under Section 319 Cr.P.C. was filed on behalf of the prosecution and the learned Addl. Sessions Judge No. 2, Hanumangarh vide order dated 17.10.2000 accepted that application and took cognizance for the offence Under Sections 376, 341 and 323 IPC against accused Sakla and trial of that accused Sakla was separated from the trial of two other accused. After conclusion of trial, the learned Additional Sessions Judge No. 2 Hanumangarh through his judgment and order dated 10.5.2001 convicted the accused appellant for the offence Under Sections 376, 323 and 341 IPC and sentenced in the manner as stated above holding inter -alia that prosecution has proved its case beyond all reasonable doubts against the accused appellant for the said offences. Aggrieved from the said judgment and order dated 10.5.2001 passed by the learned Additional Sessions Judge No. 2, Hanumangarh, the present appeal has been filed by the accused appellant. In this appeal, the following submissions have been made by the learned Counsel for the accused appellant: 1. That in the present case, the incident took place on 12.4.1998 and the first report Ex.D/2 was lodged by the prosecutrix PW -6 Rampyari on 15.4.1998 and the allegations of rape through complaint Ex.P/7 were added or made for the first time on 17.4.1998 and thus there is a considerable delay in the present case and the whole case of prosecution should be thrown on this ground alone as the delay has not been explained by the prosecution. 2. That statement of the prosecutrix PW -6 Rampyari should not have been believed by the learned trial Judge as her statement suffers from many infirmities and there is considerable improvement in her statement as in her earlier report Ex.D/2 dated 15.4.1998, she has not made any allegation of rape against the accused appellant and others and thus, her statement suffers from omissions, contradictions, improvements and infirmities and should be discarded. Hence, it was prayed that this appeal may be allowed and the accused appellant be acquitted of the charges framed against him.
(3.) ON the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Additional Sessions Judge No. 2, Hanumangarh.;