- (1.) This is an appeal by the accused-appellant against the judgment and order dated 30-4-1982 passed by the learned Sessions Judge, Sri Ganganagar in Sessions Case No. 34/1981, by which the learned Sessions Judge convicted the accused-appellant for the offence under Sections 376 and 450, IPC and sentenced in the following manner :- @@909.htm@@ The above sentences were ordered to run concurrently.
(2.) The facts giving rise to this appeal, in short, are as follows :- On 10-1-1981, PW-1 Indobai lodged an oral report Ex. P/1 before PW-7 Mani Ram, who was SHO on that day at Police Station, Matilirathan District Sri Ganganagar stating inter alia that day before yesterday she had gone to Gurusar to take the Muklawa of her son Mahendra and Mahendra was also with her. It is further stated in the report that at her house, she has left her daughters Mst. Mukhtyaro, PW-2 (prosecutrix) aged about 28 years and Guddi, PW-3 aged about 16 years and Pappi, aged about 10 years and her husband was also out of station and had gone to Bikaner. PW-2 Mukhtyaro was married and she had one son of one and half years and for the last one and half years, she has been living with PW-1 Indobai. It is further stated in the report that on the previous day i.e. on 9-1-1981, she has come to her house and when she came she was informed by PW-2 Mukhtyaro (prosecutrix) that at about 2.00 p.m. when she was sitting in her house on the cot and combing her hair, Guddi and Pappi had gone to the field and accused-appellant came there and committed rape on her. It is further stated in the report that thereafter PW-3 Shishuguddi came there and she made hue and cry and thereafter, accused-appellant ran away from the scene and when he was running, he was seen by PW-5 Kartar Singh and PW-4 Chandu Ram. It is further stated in the report that as she was having no transportation, therefore, report has been lodged on the next day i.e. on 10-1-1981. On this report, PW-7 Maniram registered the case and started investigation. During investigation, PW-2 Mukhtyaro (prosecutrix) was got medically examined by PW-6 Dr. Rajendra Kumar and her medical examination report is Ex. P/3 and the report determining her age is Ex. P/4, where her age has been determined as 20 years. After usual investigation, a challan was filed against the accused-appellant in the Court of Magistrate and from where the case was committed to the Court of Session. On 28-7-1981, the learned Sessions Judge, Sri Ganganagar framed charges against the accused-appellant for the offence under Sections 376 and 450, IPC. The charges were read over and explained to the accused-appellant. The accused-appellant denied the charges and claimed trial. During the course of trial, the prosecution examined as many as seven witnesses and got exhibited several documents. Thereafter, statement of the accused-appellant under Section 313, Cr. P.C. was recorded. No evidence was led by the accused-appellant in defence. After conclusion of trial, the learned Sessions Judge, Sri Ganganagar vide his judgment and order dated 30-4-1982 convicted the accused-appellant for the offence under Sections 376 and 450, IPC and sentenced in the manner as stated above. Before proceeding further, it may be stated here that when the statement of PW-2 Mukhtyaro (prosecutrix) was being recorded by the learned Sessions Judge, he felt that she was suffering from mental disease and she was not in a position to give statement and, therefore, he ordered that her mental state be got examined by the doctor. On the file, there is a report of the Superintendent, Mental Hospital, Jaipur dated 27-2-1982, which speaks that PW-2 Mukhtyaro was suffering from mental retardation and her mental age was three years and I.Q. was 21. It may further be stated here that because of this fact her statement could not be recorded and proceedings have taken place in the absence of her statement. The learned Sessions Judge while recording conviction of the accused-appellant came to the following conclusions :- 1. That on the date of incident, PW-2 Mukhtyaro (prosecutrix) was patient of mental retardation. 2.That PW-6 Dr. Rajendra Kumar has proved X-ray report Ex. P/4 and has come to the conclusion that on the date of incident, the age of PW-2 Mukhtyaro (prosecutrix) was 20 years. 3.That PW-6 Dr. Rajendra Kumar has come to the conclusion that no definite opinion can be given about the commission of rape with PW-2 Mukhtyaro in the absence of FSL report and the FSL report has not been produced in the present case. 4.That the learned Sessions Judge has relied on the evidence of PW-3 Shishuguddi and after relying on her statement, he has convicted the accused-appellant for the offence under Sections 376 and 450, IPC. Aggrieved from the said judgment and order dated 30-4-1982 passed by the learned Sessions Judge, Sri Ganganagar, the present appeal has been filed by the accused-appellant.
(3.) In this appeal, the following submissions have been made by the learned counsel for the accused-appellant :- 1. That there is no evidence of intercourse with PW-2 Mukhtyaro (prosecutrix) by accused-appellant and there is also no evidence on record which shows that PW2 Mukhtyaro has any injury on her private part and thus, there is no medical evidence in this case and in such circumstances, in absence of statement of PW-2 Mukhtyaro, the conviction of the accused-appellant for the offence under Sections 376, IPC cannot be maintained. 2.That since there is statement of PW-3 Shishuguddi which shows that she saw the accused-appellant committing rape on PW-2 Mukhtyaro (prosecutrix), therefore, from this point of view also, a case at the most under Section 354, IPC can be said to have been proved beyond reasonable doubt and not under Section 376, IPC, as the fact that sexual intercourse by accused-appellant with her has taken place in actual form has not been established by the prosecution. 3.That the accused-appellant is in jail for the last more than eight months and, therefore, he should be sentenced to the period already undergone by him. ;