SUNIL KUMAR GARG - (1.) This appeal has been filed by the accused appellant against the judgment and order dated 4-12-2000 passed by the learned Addl. Sessions Judge, Barmer in Sessions Case No. 27/99, by which he acquitted the accused appellant of the charges for the offence under Sections 342, 323, I.P.C., but convicted him for the offence under Section 376, IPC and sentenced him to undergo seven years RI and to pay fine of Rs. 2,000/-, in default of payment of fine, to further undergo RI for three months.
(2.) It arises in the following circumstances:- On 8-5-1999 at about 9.30 a.m. PW6 Durgaram lodged a written report Ex.P/5 before PW16 Shanti Prakash, S.I., Police Station Bakhasar, District Barmer stating inter alia that he hailed from village Tadla and his sister Mangi, PW4 (hereinafter referred to as the prosecutrix) was living in the village with his mother, Father and younger brother and he had gone to Dissa (Gujarat) for the purpose of doing labour work. It was further stated in the report that he received a message that his sister Mangi PW4 prosecutrix was ravished by accused appellant and after hearing this news, he came to his village on the same day i.e. on 6-5-1999 and he asked his sister Mangi PW4 prosecutrix and PW4 Mangi told him that when she went to collect cow-dung and reached near the Nadi, the accused appellant was there and he caughthold her left hand and tried to take her behind the Nadi, but she managed to set free her hand from accused appellant and thereafter, again accused appellant caughthold her hands and dragged her and took her in the Nadi and put her on the ground and thereafter he slapped her and pressed her mouth, as a result of which she received injuries near the eyes and thereafter, accused appellant caughthold her both hands and committed rape on her and she made hue and cry and on hearing her cries, PW2 Kesharam came there and seeing PW2 Kesharam, accused appellant ran away from the place of occurrence. Thereafter, prosecutrix PW4 Mangi came to her house and told the whole incident to her mother PW5 Varju and also showed her injuries. In these circumstances, the report was lodged on 8-6-1999 though the incident took place on 6-5-1999. It was also mentioned in the report that the accused appellant also tried to molest prosecutrix PW4 Mangi before 15 days back. It was further mentioned in the report that since he came late, the report has been lodged with delay. On this report, police registered the case and chalked out FIR Ex.P/21 and started investigation. During investigation, the accused appellant was arrested on 14-5-1999 through Ex.P/19 and the accused appellant was got medically examined by Dr. P.C. Deepan, PW8 and his medical examination report is Ex. P/7 and injury report is Ex.P./12. The prosecutrix PW4 Mangi was also got medically examined for the purpose of rape as well as for ascertaining her age by Dr. P.C. Deepan, PW8 and Dr. A. K. Goyal, PW10 and her injury report is Ex. P/9, medical examination report is Ex. P/8 and radiological opinion is Ex.P/10. After usual investigation, police submitted challan against the accused appellant in the Court of Magistrate, from where the case was committed to the Court of Session. On 10-8-1999, the learned Addl. Sessions Judge, Barmer framed charges under Sections 376, 342 and 323, IPC against the accused appellant. The charges were read over and explained to the accused appellant, who pleaded not guilty and claimed trial. During trial, the prosecution in support of its case examined as many as 17 witnesses and got exhibited some documents. Thereafter, the statement of the accused appellant under Section 313, Cr.P.C. was recorded. In defence, one witness was produced by the accused appellant. After conclusion of the trial, the learned Addl. Sessions Judge, Barmer through his judgment and order dated 4-12-2000 acquitted the accused appellant of the charges for the offence under Sections 342, 323, IPC, but convicted and sentenced him for the offence under Section 376, IPC in the manner as indicated above holding inter alia :- 1. That in the present case, the delay in lodging the report has been explained. 2. That on the date of occurrence, the prosecutrix PW4 Mangi was minor.
(3.) That though other witnesses including PW5 Varju, mother of the prosecutrix, PW6 Durgaram, real brother of the prosecutrix and other independent witnesses, namely, PW1 Motiram, PW2 Kesharam and PW3 Bhera do not support the statement of the prosecutrix PW4 Mangi, yet the statement of the prosecutrix PW4 Mangi gets corroboration from her medical report.;