- (1.) IN challenge is the judgment and order dated 23.03.1989 passed by the learned Sessions Judge, Jhunjhunu in Sessions Case No.32/1988 convicting the appellants under sections 376 and 447 IPC and sentencing them to undergo rigorous imprisonment for 7 years and pay a fine of Rs.500/-, in default to suffer simple imprisonment for further two months for the offence under section 376 and to undergo rigorous imprisonment for 1 month for his conviction under section 447 IPC. Thereby both the sentences were directed to run concurrently. I have heard Mr. Vishnoi, learned counsel for the appellants as well as Mrs. Alka Bhatnagar, learned Public Prosecutor for the State.
(2.) ON 07.04.1988 at about 10 AM one Naru Ram husband of Smt. Nimbo Devi-the victim, lodged a written report with the Police Station Gudha to the effect that in the previous night while his wife was sleeping with her children and he was away to the nearby agricultural land, he, on hearing her cries, rushed back to be told that the appellant had committed rape on her. The FIR mentioned that the neighbours Jhabar and Prabhu had seen the appellant making good his escape. On the FIR, a police case was registered and investigation was started in course whereof, the prosecutrix as well as the appellants were medically examined and her wearing apparels were seized. Eventually, chargesheet was laid against the appellant under sections 376 and 447 IPC. At the trial, the prosecution examined, amongst others, the prosecutrix Nimbo (PW-10), her husband Naru Ram (PW-1), and one Gyarshi (PW-2). The victim in her statement at the trial deposed that in the night of the occurrence at about 10-11 PM while she was sleeping with her children in the open and her husband was away to the nearby cultivating field to attend to the crop, the accused-appellant suddenly came and covered her mouth with his hand, fell her on the ground and raped her. She stated that she could not make any sound and the offending act continued for 5 to 7 minutes. As soon as the appellant removed his hand from her mouth she raised alarm and on this he escaped. The prosecutrix stated that on hearing her cry, her neighbour Gyarshi (PW-2) reached the place of occurrence. After some time, her husband, Jhabar and Prabhu also came. She disclosed about the incident to them and in the next morning, FIR was lodged. She stated to have been medically examined and claimed to have suffered injuries on her hands, legs and thighs. She also deposed that her wearing apparel had been seized by the police.
(3.) IN cross-examination, the prosecutrix stated that the night was a moon late night and repeated that the appellant had threated her not to make any sound. She admitted further that Gyarsi (PW-2) at the time of occurrence was 20 steps away. Gyarsi, however, deposed to the extent of seeing appellant fleeing from the place of occurrence. She did not see the actual act of sexual intercourse. Naru (PW-1) is a reported witness. Prabhu (PW-3) did not support the case of the prosecutrix and stated on oath that he did not see the appellant fleeing from the place of occurrence. Incidentally, he was one of the witnesses, who, it was stated in the FIR, had seen the appellant fleeing after committing the offending act.;