HASAN, J. - (1.) THESE appeals having been arisen out of Sessions case No. 53/82 of one and the same incident alleged to have taken place on December 19, 1991 of which FIR No. 95/81 was lodged at police station Mandana (Kota) against four persons including the present appellants, are being disposed of by this common judgment.
(2.) IN the first information report lodged on verbal report by Smt. Achuki (informant & prosecutrix) it had been alleged that, on December 19, 1981 at about 8 p. m. she heard noise of opening a door which was being unbolted, thereupon she, asking as to who was, rushed outside room towards courtyard then one Mangilal asked her about calling of her by one Kishna Gujar, to which she answered that none had been in her house, and she came to the exit door of the house but as soon as she reached the exit door, by catching her hand she was drawn out of her house by Kishna; and thereupon she had clamoured but her mouth was gagged with hand by Mangilal, then she was dragged by Kishna to enclosure of Laxminarain Patel's land situated opposite her house where Devlal & Babulal were already waiting. It had also been alleged by Smt. Achuki that in the said enclosure she was moved down to lie on the grass but she continued to uproar then Devlal by gagging her mouth slapped her, thereupon her petticoat was lifted by Kishna who committed forcibly sexual intercourse upon her despite her desist by kicking and legging to Kishna but he was successful in his sexual lust and did not lift himself from her body till he completed sexual intercourse. However, in the meantime, upon hearing some whispering of coming person all the four fled away. Thereafter, she rushed outside the place of Laxmi Narain and at the door, one Lalchand met, to whom also, the incident was narrated and later on, to her husband upon his return. It had also been stated that in the night since there was no conveyance facility available, the report was lodged in the next morning. The police registered criminal case against the present appellants and two others, Babulal & Devlal who have been acquitted by the Sessions Judge under the impugned judgment, for offences punishable under Section 376/34 IPC. After usual investigation, the challan was presented in the court and after committal proceedings, besides co-accused (who have been acquitted after trial), Kishna & Mangilal (Present appellants) were charged of offences punishable under Sections 376 & 342, IPC and 376/34/109, IPC, respectively, to which they denied and pleaded not guilty by claiming trial. After recording the evidence adduced by the prosecution and explanation of the accused under Section 313, Cr. P. C, and after hearing both the parties, the learned trial Court acquitted two co accused (named above) but convicted & sentenced the present appellants as under : - 1 - Kishna U/s 376, IPC - Five years' R. I. with a fine of Rs. 500/- (in default, further two months' S. I.) U/s 342, IPC No sentence was awarded. 2 - Mangilal U/s 376, Two years' R. I. with a fine of r. w. S.- Rs. 200/- (in default, further 109, IPC one month's S. I.) Hence these appeals. Having heard the rival contentions on behalf of the parties, and perused the impugned judgment, I find that the learned trial Court based its findings so as to convict the present appellants, solely upon the evidence of the prosecutrix, which has been assailed by the learned counsel for the appellants by urging that her evidence is not of sterling worth because, the lower court erred in placing sole reliance upon her evidence particularly when her testimony has been disbelieved as against co-accused, named above, who have been acquitted by it, without distinguishing the facts and circumstances of the case as against the present appellants, despite its own findings in the impugned judgement that the prosecutrix has exaggerated her testimony in whole hog to support her case, Learned counsel added that admittedly, as would be evident from the impugned judgment, itself, the evidence of prosecutrix stands uncorroborated by any independent source of evidence muchless circumstantial evidence goes against her testimony, itself, and that being so, her evidence could not have been believed by the trial Court as against the present appellants also. Conversely, learned Public Prosecutor controverting the contentions raised on behalf of the accused, argued that the conviction could be based solely upon the testimony of the prosecutrix and no corroboration was required of any independent source, and in that view of the matter, the lower court was justified in convicting the appellants on the sole testimony of the prosecutrix.
(3.) IN examination-in-chief, Smt. Achuki (PW 1) stated that Kishna Gujar lifted her petticoat and inserted his penis in her vagina and his semen was discharged into her vagina whereas in her cross-examination she gave out that during sexual intercourse by Kishna, the blood was being oozed out of her vagina thereby he cloth, i. e. petticoat smeared with blood. I may state that the doctor who medically examined the prosecutrix has not stated that during her examination, her found her in state of menstruating, nor he found any spots of either menses of blood on her petticoat or cloth, inasmuch as I find that there is no circumstance on record either in the evidence of the prosecution witnesses or in the documents prepared by the police during investigation to show that her petticoat or cloth were found duly smeared with blood either when she came to lodge in report at the police station or when she appeared before the doctor during her medical examination or when her cloth or petticoat were seized for being onward transmission to the chemical examiner for examination. Further neither any blood or its spots nor any human semen or blood has been found by the chemical examiner, in the vaginal smear, or vaginal swab, as would be evident from the chemical examiner's report (Ex. P. 12a ). On the one hand, seizure memo of petticoat (Ex. P. 3) gives out that there was a blood spot on the petticoat but contrarily, there is no corroboration to it in the report (Ex. P. 12a) because it states that human semen was detected on Ghaghara (petticoat) and Chaddi (under wear of the accused), and it does not state that any blood was detected on these articles. Similarly, seizure memo of the petticoat (Ex. P. 3) does not depict of detecting either any human semen or its spot on the petticoat but, as wrung out from the chemical examiner's report (Ex. P. 12a), human semen was detected on the seized petticoat, which casts smack and doubt on the seizure of the petticoat and the report of the chemical examiner. And it is fatal to the prosecution. According to the evidence of the prosecutrix, she was dragged and taken to the enclosure of Laxminarain (cattle pond) where she was laid on the grass land and then was raped. Her testimony (above) appears to be believed in view of other prosecution evidence, such as, in the site plan (Ex. P. 2) there is no mention that there has been any grass or fodder of the catties laid in the enclosure or the place of occurrence, inasmuch as it is her version in her evidence that she desisted when Kishna prompted to rape her by kicking or legging and by her physical efforts by pushing him in order to get her relieved from him, while laying on the grass land, and in my view, in this state of evidence, it cannot by any stretch of imagination be believed of inferred that she could not have sustained any bruises or abrasions or contusions during her struggling efforts to get her relieved from him, either on her back or hips or any part of the body including hands and legs, had there been any incident of forcible commission of rape upon her person in the circumstances narrated by the prosecutrix herself. The site plan gives out that during site inspection there has been no grass either grown or laid and that apart, there has been no signs of any occurrence found. The doctor who medically examined the prosecutrix found no injury on the body or back part of the prosecutrix so as to show that she sustained injuries at the scene of occurrence during forcible commission of sexual intercourse upon her, or at the time of her dragging to the place or scene of occurrence. It is her version that during the course of forcible sexual intercourse by Kishna and when she desisted to the efforts of commission of sexual assault, other accused persons were not nearby them but were standing far. It makes clear that other accused were not holding her by their physical force or any duress any during the commission of forcible sexual intercourse, at best she could have been prompted or dealt with by Kishna but was not under any such duress or threat (because there is no prosecution evidence that the accused were armed with any sharp or blunt weapon) which might have made her handicapped or unabling her to raise any hue or cry attracting any person, and it is obscured herein. Further, the prosecution evidence of Laxminarain duly corroborated by Motilal shows that Laxminarain used to put lock at the door of the enclosure after sun-set. It is not the version of the prosecutrix that she was taken to the said enclosure by lieting her over the fencing enclosing but according to her, she was taken there through the exit door where after the incident, she met one Lalchand. If the aforesaid circumstances are believed then there is no explanation from the prosecution side as to how the prosecutrix was taken by the accused persons allegedly to the enclosure which was evidently and duly locked. However, such an evidence also makes a doubt on the veracity of the evidence of the prosecutrix who has admittedly exaggerated her version on material particulars obviously because of her whole hog and anxiety to support herself for the impugned allegation. ;