GARG, J. - (1.) THE above appeals being No. 136/99, 133/99 & 169/99 and the State appeal No. 326/99 are being decided by this common judgment as they all have been preferred against the judgment dated 8. 2. 1999 and order of sentence dated 9. 2. 1999 passed by the learned Special Judge, SC/st Cases, Sri Ganganagar in Sessions Case No. 8/98.
(2.) BY the said judgment dated 8. 2. 1999, the learned Special Judge acquitted accused respondents Hanuman Prasad and Parmanand of the charges for the offence under Sections 363, 366, 342 and 376 (2) (g) IPC; accused respondents Jethu Singh of the charges for the offence under Sections 363, 366, 342, 376 (2) (g) IPC and Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989 (hereinafter referred to as the `sc/st Act'); accused respondent Sanjay Kumar of the charges for the offence under Sections 363, 366, 342, 376 (2) (g), 376 (2) (g) IPC and Section 3 (2) (v) of SC/st Act; and accused respondent Gaurav Kumar @ Ganga of the charges for the offence under Sections 363, 366, 342, 376 (2) (g) IPC and Section 3 (2) (v) of SC/st Act. BY the said judgment dated 8. 2. 1999, the learned Special Judge also acquitted accused appellant Dhruvendra Singh in appeal No. 136/99 of the charges for the offence under Sections 376 (2) (g), 376 (2) (g), 376 IPC, for the incident which occurred on 24. 6. 1997, but convicted this accused appellant Dhruvendra Singh of the charges for the offence under Section 363, 366, 342, 376 IPC and Section 3 (2) (v) of the SC/st Act and sentenced him for the said offences vide order of sentence dated 9. 2. 1999 in the following manner:- Name of accused appellant Convicted under Section Sentence awarded Dhruvendra Singh 363 IPC Two years RI and to pay fine of Rs. 1000/-, in default of payment of fine, to further undergo imprisonment for one month. 366 IPC Three years RI and to pay fine of Rs. 1000/-, in default of payment of fine, to further undergo imprisonment for one month. 342 IPC One year RI and to pay fine of Rs. 500/-, in default of payment of fine to further under go imprisonment for 15 days. 376 IPC Ten years RI and to pay fine of Rs. 10000/- in default of payment of fine, to further undergo imprisonment for six months. 3 (2) (v) of SC/st Act Six months RI and to pay fine of Rs. 500/-, in default of payment of fine, to further undergo imprisonment for 15 days. All the above substantive sentence were ordered to run concurrently. BY the same judgment, the learned Special Judge also acquitted the accused appellant Sushil Kumar in appeal No. 133/99 of the charges for the offence under Sections 376 (2) (g), 376 (2) (g) IPC, but convicted this accused appellant Sushil Kumar of the charges for the offence under sections 363, 366, 342, 376 IPC and Section 3 (2) (v) of the SC/st Act and sentenced him for the said offences vide order of sentence dated 9. 2. 1999 in the following manner:- Name of accused appellant Convicted under Section Sentence awarded Sushil Kumar 363 IPC Two years RI and to pay fine of Rs. 1000/-, in default of payment of fine, to further undergo imprisonment for one month. 366 IPC Three years RI and to pay fine of Rs. 1000/-, in default of payment of fine, to further undergo imprisonment for one month. 342 IPC One year RI and to pay fine of Rs. 500/-, in default of payment of fine to further under go imprisonment for 15 days. 376 IPC Seven years RI and to pay fine of Rs. 10000/- in default of payment of fine, to further undergo imprisonment for six months. 3 (2) (v) of SC/st Act Six months RI and to pay in of Rs. 500/-, in default of payment of fine, to further undergo imprisonment for 15 days. All the above substantive sentence were ordered to run concurrently. BY the same judgment, the learned Special Judge also acquitted the accused appellant Shiv Muni in appeal No. 169/99 of the charges for the offence under Sections 376 (2) (g), 376 (2) (g) IPC, but convicted this accused appellant Shiv Muni of the charges for the offence under sections 363, 366, 342, 376/109 IPC and Section 3 (2) (v) of the SC/st Act and sentenced him for the said offences vide order of sentence dated 9. 2. 1999 in the following manner:- Name of accused appellant Convicted under Section Sentence awarded Shiv Muni 363 IPC Two years RI and to pay fine of Rs. 1000/-, in default of payment of fine, to further undergo imprisonment for one month. 366 IPC Three years RI and to pay fine of Rs. 1000/-, in default of payment of fine, to further undergo imprisonment for one month. 342 IPC One year RI and to pay fine of Rs. 500/-, in default of payment of fine to further under go imprisonment for 15 days. 376/109 IPC Seven years RI and to pay fine of Rs. 10000/- in default of payment of fine, to further undergo imprisonment for six months. 3 (2) (v) of SC/st Act Six months RI and to pay fine of Rs. 500/-, in default of payment of fine, to further undergo imprisonment for 15 days. All the above substantive sentence were ordered to run concurrently Aggrieved from the said judgment dated 8. 2. 1999 and order of sentence date 9. 2. 1999 passed by the learned Special Judge, SC/st Cases, Sri Ganganagar, the accused appellants Dhruvendra Singh, Sushil Kumar and Shiv Muni have preferred appeals separately and similarly State has also filed appeal against the said judgment and order acquitting accused Hanuman Prasad, Parmanand, Jethu Singh, Sanjay Kumar and Gaurav Kumar @ Ganga of the charges framed against them and against Dhruvendra Singh, Sushil Kumar and Shivmuni for enhancement of sentence and it was also prayed that all accused persons namely, Dhruvendra Singh, Sushil Kumar, Shiv Muni, Hanuman Prasad, Parmanand, Jethu Singh, Sanjay Kumar and Gaurav Kumar @ Ganga should be convicted for the offence of gang rape. The facts giving rise to these appeals, in short, are as follows:- On 6. 10. 1997 at about 4. 10 PM, PW6 Puja (hereinafter referred to as the prosecutrix) daughter of Nemchand, PW4 lodged a report Ex. P/9 before PW5 Kan Singh, Dy SP, Raisingh Nagar District Sri Ganganagar against eight accused respondents mentioned in the State appeal and one more person Vinod Sachdeva stating inter- alia that her father Nemchand, PW4 was under the employment of Indian Agriculture Farm as Win Keeper and she has two brothers and one elder sister. It was further stated in the report Ex. P/9 that in the month of April, 1996, when she was going to her house, accused appellants Dhruvendra Singh, Sushil and Shiv Muni and accused respondents Sanjay, Parmanand, Jethu and Hanuman encircled her and took her forcibly to the house of accused appellant Shivmuni, who was Chowkidar and when she tried to make hue and cry, she was beaten by them and she was offered water and after drinking water, she felt giddiness and, thereafter, she was raped by the accused appellant Dhruvendra Singh and rest accused persons were flirting with her and when she came to senses, they told her that what had happened, that had happened and in case she would tell this incident to anybody, her brothers would be killed. Thereafter, she came to her house. It was further stated in the report that whenever she went to school, all accused persons used to take her to the house of accused appellant Shivmuni and all accused persons No. 1 to 8 mentioned in the report Ex. P/9 used to commit rape on her and this process remained continued for many times. It was further stated in the report that when she was perturbed, she was asked by her mother PW3 Panadevi, then she unfolded the whole story to her mother PW3 Panadevi and then, her mother PW3 Panadevi narrated the whole story to her husband PW4 Nemchand. It was further stated in the report that thereafter, they met Vinod Sachdeva, who told them that accused persons hailed from high family and if they were enjoying with her, let them do so and he further told them that he would arrange the marriage of the prosecutrix with accused appellant Dhruvendra Singh. It was further stated in the report that she might have not developed conception, therefore, she was given tables for preventing pregnancy and she was given Mala-D tablets also. This report was sent by PW 5 Kan Singh to Police Station Sri Vijaynagar, District Sri Ganganagar, where the case was registered and regular FIR Ex. P/10 was chalked out and investigation was got conducted by PW7 Tajaram. During investigation, on 6. 10. 1997, medical examination of the prosecutrix PW6 Puja in respect of her age as well as for rape was not conducted by the Medical Board, of which, PW1 Dr. Devilal was one of the members, who gave report Ex. P/1 and radiological report is Ex. P/4, where age of the prosecutrix PW6 Puja was determined as 17 to 18 years. The prosecution has also produced TC Form of Kirti Public Secondary School, Jetsar (Sri-Ganganagar) Ex. P/8. which shows that date of birth of the prosecutrix was 16. 5. 1982. The accused appellants and other accused respondents in State appeal were not arrested through Ex. P/13 to Ex. P/20. After usual investigation, police submitted challan against the accused appellants and accused respondents in State appeal in the Court of Magistrate, from where the case was committed to the Court of Section. On 26. 3. 1998, the learned Special Judge, SC/st Cases, Sri Ganganagar framed charges against the accused appellants and other accused respondents in State appeal in the following manner:- Name of accused persons Charges 1. Hanuman Prasad 363, 366, 342, 376 (2) (g) IPC. 2. Parmanand 3. Dhruvendra Singh 363, 366, 342, 376 (2) (g), 376 (2) (g), 376, 376 IPC and 3 (2) (v) of SC/st Act. 4. Shivmuni 363, 366, 342, 376 (2) (g), 376 (2) (g) 5. Sanjay Kumar 6. Sushil Kumar IPC and 3 (2) (v) of the SC/st Act. 7. Jethu Singh 363, 366, 342, 376 (2) (g) 8. Gaurav Kumar @ Ganga IPC and 3 (2) (v) of the SC/st Act The charges were read over the explained to the accused persons, who pleaded not quality and claimed trial. During the course of trial, the prosecution, in support of the case, examined as many as seven witnesses and got exhibited some documents. Thereafter, statements of the accused persons under Section 313 Cr. P. C. were recorded. No evidence in defence was produced by the accused persons, but some documents were got exhibited by them. After conclusion of the trial, the learned Special Judge, SC/st Cases, Sri Ganganagar through his judgment dated 8. 2. 1999 acquitted accused Hanuman Prasad, Parmanand, Jethu Singh, Sanjay Kumar and Gaurav Kumar @ Ganga of the charges framed against them, but convicted and sentenced the accused appellants Dhruvendra Singh, Sushil Kumar and Shivmuni Vide judgment dated 8. 2. 1999 and order of sentence dated 9. 2. 1999 in the manner as indicated above holding inter-alia:- 1. That in the month of April, 1996, prosecutrix PW6 Puja was below the age of 16 years and in coming to this conclusion, he placed reliance on Ex. P/8 TC Form of Kirti Public Secondary School, Jetsar (Sri Ganganagar), which was produced by the prosecution and on Ex. D/2, another school certificate produced in defence, which shows that date of birth of the prosecutrix was 7. 2. 1981 and thus, even Ex. D/2 be taken as correct one, the age of the prosecutrix from all point of view in the month of April, 1996 was below 16 years as from the date of birth 7. 2. 1981, her age would be 15 years and two months. 2. That in the present case, prosecution has not been able to prove beyond all reasonable doubt the offence of gang rape. 3. That it is proved by the prosecution that accused appellants Dhruvendra Singh enticed prosecutrix PW6 Puja and took her to the house of accused appellant Shivmuni, where he committed rape on her. 4. That what was done by accused appellant Dhruvendra Singh in the house of accused appellant Shivmuni, it was done with the help of accused appellant Shivmuni and hence, he abetted the commission of rape. 5. That prosecution has not been able to prove beyond all reasonable doubts any of the charges framed against accused Hanuman Prasad, Parmanand, Jethu Singh, Sanjay Kumar and Gaurav @ Ganga and hence, they are entitled to acquittal. 6. That offence of rape was also committed by accused appellant Sushil Kumar. 7. That incident, which is alleged to have taken place on 24. 6. 1997 at the back of house of the prosecutrix, was not found proved and thus, on that day, accused appellant Dhruvendra Singh did not commit rape on the prosecutrix PW6 Puja. 8. That if for the sake of argument, it be taken for granted that prosecutrix used to love with accused appellant Dhruvendra Singh, but this aspect would not be helpful to this accused appellant, as from every point of view, prosecutrix was below 16 years of age and her consent was immaterial. Aggrieved from the said judgment dated 8. 2. 1999 and order of sentence dated 9. 2. 1999 passed by the learned Special Judge, SC/st Cases, Sri Ganganagar, the accused appellants Dhruvendra Singh, Sushil Kumar and Shivmuni have preferred appeals separately and State of Rajasthan has also filed appeal. In the appeals filed by the accused appellants, the following submissions have been made:- 1. That on the date of alleged incident, the prosecutrix PW6 Puja was above 16 years of age and the learned Special Judge erred in holding that she was below 16 years of age. 2. That evidence of the prosecutrix PW6 Puja is not reliable and her evidence is not supported, the learned Special Judge erred in convicting the accused appellants on the basis of her sole testimony. 3. That in the present case, there is a delay in lodging the report Ex. P/9 and as the same has not been satisfactorily explained, therefore, it is fatal to the prosecution case. 4. That looking to the evidence on record, the prosecutrix PW6 Puja was a consenting party to all the alleged activities right from very beginning. 5. That from the evidence on record, no case for the offence under Section 3 (2) (v) of SC/st Act is made out against the accused appellants. The learned Public Prosecutor appearing on behalf of the State of Rajasthan has argued that it is a case of gang rape and for that he drew my attention towards Explanation-1 to clause (g) of sub-section (2) of Section 376 IPC. He has further submitted that the learned Special Judge has mis-interpreted the provisions of law in general and Section 376 (2) (g) IPC in particular. Hence, he has prayed that all accused persons be convicted of the charge for the offence u/sec. 376 (2) (g) IPC and the findings of the learned Special Judge acquitting them of the said charge be set aside. The learned counsel appearing for the accused persons, who have been acquitted by the learned Special Judge, submitted that learned Special Judge has not committed any error in acquitting them of the charges framed against them and the findings of the learned Special Judge are based on correct appreciation of evidence and after giving cogent reasons, the learned Special Judge acquitting them. The learned Special Judge was also right in holding that it is not a case of gang rape. Hence, no interference is called for with the impugned judgment and order by which five accused persons were acquitted of the charges framed against them.
(3.) I have heard the learned counsel for the accused appellants, learned Public Prosecutor, learned counsel for the complainant and the learned counsel for the accused respondents, who have been acquitted by the learned Special Judge, I have also gone through the record of the case. Before proceeding further, medical evidence of this case has to be seen. The prosecution has produced Dr. Devilal, PW1, who has stated that on 6. 10. 1977, he was Senior Medical Officer and he examined prosecutrix PW6 Puja and found:- 1. That she was not having any injury on any part of body and even her private part was not having any injury. 2. That her hymen was totally ruptured. 3. That she was habitual to sexual intercourse. He has proved the report Ex. P/1. He has further stated that he took x-rays of elbow, wrist and pelvis bones of the prosecutrix PW6 Puja and as per radiological findings, he came to the conclusion that on the date of examination i. e. on 6. 10. 1997, her age was between 17 to 18 years. Thus, this is the age of the prosecutrix PW6 Puja as per the medical evidence. ;