SUNIL KUMAR GARG - (1.) The abovenamed accused appellants have preferred this appeal against the judgment and order dated 23-9-2000 passed by the learned Additional Sessions Judge, Nimbahera District Chittorgarh in Sessions Case No. 29/99 by whi ch he convicted both the accused appellants for the offence under Sections 376 and 341, IPC and sentenced in the following manner :- Name of accused appellants convicted under section sentence awarded 1.Babu Lal 2.Devi Lal 376 IPC Seven years RI and to pay fine of Rs. 1000/-,in default of payment of fine,to further undergo one month SI. 341 IPC One month SI. Both the substantive sentence were ordered to run concurrently.
(2.) The facts giving rise to this appeal, in short, are as follows :- ON 17-6-1998, PW1 Mst. Lehribai (hereinafter referred to as the prosecutrix) gave a written report Ex. P/1 to the Supreintendent of Police, Chittorgarh in the form of a complaint stating inter-alia that she and accused appellants hailed from the same village and on 29-4-1998 at about 11.00 a.m. when she went towards well for drinking water to the buffaloes and after that, when she was coming to her house, accused appellant Babulal came there on cycle and told her that he would pay Rs. 500/- and asked her to go to the Bada and when she tried to run away, he forcibly took her to the Bada, where accused-appellant Devilal also came and thereafter, they both caught hold her and committed rape on her one by one and in doing so, they caused injuries on her breast etc. and blood-stained were found on the clothes which were wearing by her at that time and thereafter, they both ran away and when she was returning to her house, her husband PW7 Ramchandra met her and she told him that both accused-appellants have committed rape on her and her bangles which were broken at the time of committing rape on her by the accused-appellants were also lying on the spot and, thereafter, her husband PW7 Ramchandra reported the whole incident to the parents of the appellant Devilal and they told that they would take him to task. Thereafter, th e prosecutrix narrated the whole incident to her father-in-law PW5 Amritram and mother-in-law PW6 Sitabai. It is further stated in the report that she remained for 15 days at Badoli and when her father came to know, he took her to village Khermaliya, where she told the whole story to her parents also and the story about commission of rape on her by the accused-appellant has spread in whole of the village. It is further stated in the report that as the accused-appellants have given threat, therefore, report could not be lodged earlier and the same has been lodged on 17-6-1998, though the incident took place on 29-4-1998. On this report, a case FIR No. 287/98 (Ex. P/19) was registered at the Police Station Nimbahera District Chittorgarh and investigation was started. During investigation, prosecutrix PW1 Lehribai was got medically examined by PW9 Dr. B. R. Alawat on 23-6- 1998 and her medical examination report is Ex. P/6. She was also got examined in respect of age by PW8 Dr. Vijay Purohit and her report about age is Ex. P/9. After usual investigation, police submitted challan against the accused-appellants before the Court of Magistrate and from where the case was committed to the Court of Session. On 7-10-1999, the learned Additional Sessions Judge, Nimbahera framed charges against both the accused-appellants for the offence under Sections 376 and 341, IPC. The charges were read over and explained to the accused-appellants. Both the accused-appellants denied the charges and claimed trial. In support of its case, the prosecution examined as many as 19 witnesses and got exhibited several documents. Thereafter, statements of the accused-appellants under Section 313, Cr. P.C. were recorded. No evidence in defence was produced. However, some documents were got exhibited in defence. It may be stated here that during the course of investigation, statement of the prosecutrix under Section 164, Cr. P.C. was also recorded by the Magistrate PW15 Govind Agrawal and the same is Ex. P/7. After conclusion of trial, the learned Additional Sessions Judge, Nimbahera District Chittorgarh through his judgment and order dated 23-9-2000 convicted both the accused-appellants for the offence under Sections 376 and 341, IPC and sentenced in the manner as stated above holding inter-alia that prosecution has proved its case beyond all reasonable doubts and the argument of delay was not found favourable with the learned Additional Sessions Judge. Aggrieved from the said judgment and order dated 23-9-2000 passed by the learned Additional Sessions Judge, Nimbahera, the present appeal has been filed by the accused-appellants.
(3.) In this appeal, the following submissions have been made by the learned counsel for the accused-appellants :- 1. That FIR in the present case has been lodged after delay of one and half months and no explanation is forthcoming for the said delay. The reasons which have been mentioned in the complaint for the delay in filing the FIR are absolutely false one and thus, from this point of view also, the whole case of the prosecution washes out. 2. That PW1 Mst. Lehribat, prosecutrix has also admitted in her cross-examination that accused-appellants had given her Rs. 500/- after the alleged incident and if the accused-appellants had forcibly committed intercourse with her, then there was no question of accused-appellants having given money to her and thus, from this point of view also, no case of rape is made out against the accused-appellants and it is a case of consent. 3. Hence, it is prayed that this appeal may be allowed and the accused-appellants be acquitted of the charges framed against them.;