Alok Sharma, J. - (1.) CHALLENGE in these appeals is to the judgment dated July 13, 2009 of the learned Special Judge, Women Atrocities & Dowry Cases, Kota, whereby Mukesh Yogi, Prahlad Meena and Mohan Lal, the appellants were convicted and sentenced as under: - Mukesh Yogi: U/s. 363 IPC: Rigorous imprisonment for one year and fine of Rs. 2000/ -, in default to further suffer simple imprisonment for one month. U/s. 366 IPC: Rigorous imprisonment for one year and fine of Rs. 2000/ -, in default to further suffer simple imprisonment for one month. Mohan Lal: U/s. 368 IPC: Rigorous imprisonment for one year and fine of Rs. 2000/ -, in default to further suffer simple imprisonment for one month. Prahlad Meena: U/s. 363 IPC: Rigorous imprisonment for three years and fine of Rs. 2000/ -, in default to further suffer simple imprisonment for one month. U/s. 366 IPC: Rigorous imprisonment for three years and fine of Rs. 2000/ -, in default to further suffer simple imprisonment for one month. U/s. 376 IPC: Rigorous imprisonment for seven years and fine of Rs. 2000/ -, in default to further suffer simple imprisonment for one month. All sentences were to run concurrently. The prosecution case as set out in the written typed first information report (Ex. P -1) registered on August 5, 2005 at Police Station Vigyan Nagar Kota is that the informant (Pw. 1) Prakash's daughter Jyoti (Pw. 5) aged about 14 years was working at the Gaurav mess. It was stated that Jyoti was kidnapped by Prahlad Meena, Mukesh when she was coming back from the work at Gaurav mess, where she ordinarily worked along with her mother but was alone on the said day. On the said report a case under sections 363 and 366 IPC was registered and investigation commenced. During the course of investigation, the girl was recovered from Bhilwara and the accused were arrested, necessary memos were drawn, the appellants were arrested. On completion of investigation challan was filed against accused Prahlad Meena for the offences under sections 363, 366, 376, 368 and 120 B IPC and against accused Mohan Lal and Mukesh under Sections 363, 366, 368, and 120B IPC. Subsequently appellant Prahlad Meena was charged for the offences under sections 363, 366, and 376 IPC, Mukesh Yogi for the offences under sections 363 and 366 IPC and Mohan Lal for the offence under section 368 IPC. The appellants in three appeals denied the charges and required to be tried. The prosecution in support of its case examined 13 witnesses and exhibited 20 documents. In the explanation under Sec. 313 Cr.P.C., the appellants claimed innocence. No witness in defence was however examined. On hearing final submissions learned trial Judge convicted and sentenced the appellants as indicated herein above.
(2.) HEARD learned counsel for the parties and perused the material available on record. In his evidence before the trial court Prakash (Pw. 1) father of the prosecutrix stated that when his daughter Jyoti did not return home on 31 -7 -2005 till 8 PM in the evening on return from work, he went looking out for his daughter at Gaurav mess. He was told by the In charge of the mess that Jyoti in fact had left the mess at about 12 O' clock earlier in the day. He subsequently met appellant Mukesh's aunt Lad Kanwar, who told him that Prahlad, Mukesh and Uma Shankar had spirited Jyoti away. He stated that he then lodged a report at Police Station Vigyan Nagar Kota, where upon FIR came to be registered on August 5, 2005. The other prosecution witness of relevance is Santosh Bai (Pw. 4), mother of the prosecutrix. She broadly supported the case of prosecution before the court as set up by Prakash and stated that Jyoti had been kidnapped by Mohan Lal, Prahlad, Mukesh and Uma Shankar. She stated that after recovery of her daughter, she was told by her that on the day of incident when she was coming back home in the evening from work on 31 -7 -2005, she had been told by the appellant Mukesh that her father had an accident and that she accompany him. Santosh stated that thereafter, as per Jyoti's say, on the way Prahlad and Uma Shankar met her Talwandi chowk in a jeep and instead of taking her to the purported place of accident of her father about which she was informed by Mukesh, she was taken away to Rawatbhata. Thereafter according to Santosh, Jyoti was taken away to Jhalawar, Delhi, Bhilwara. The prosecutrix (Pw. 5) in her statement before the court stated that she was working along with her mother at the Gaurav mess. She stated that on 31 -7 -2005 she had gone alone to work at mess, and while she was coming back about 8 PM after having cooked food, she met Mukesh on the way who told her that her father was involved in an accident at Talwandi crossing. Thereupon she accompanied Mukesh for Talwandi crossing, where Prahlad, Uma Shankar and two others in a jeep offered to take her to the hospital, but instead of taking her to the hospital they took her towards Rawatbhata. The prosecutrix stated to have protested and even tried to call for help having seen on the way a boy (unnamed) known to her. But her face had been muffled by Mukesh and she was threatened at knife point that in the event she did not stop yelling he would first kill her, and thereafter her parents, brothers and sister. Consequent to which she ceased calling for help. It was further stated by the prosecutrix that subsequently she was taken to Jhalawar and kept in Prahlad's house, where Prahlad committed rape on her. According to her, on the accused Prahlad apprehending that she would be recovered by the police and parents from his house, she was coerced into wearing a saree and taken away to Ramganjmandi, from where she was then taken to Sawai Madhopur. At Sawai Madhopur the prosecutrix stated that she was lodged at a Dharamshala and again raped by Prahlad. Subsequently she was made to travel along with Prahlad to Delhi and lodged at the house of Onkar for 20 -25 days, where she was again continuously raped by Prahlad. It was stated that her protestation against her sexual intercourse invited beatings and her request to be let of was met with a demand of Rs. 25,000/ - in lieu of her release. According to her she was thereafter made to travel from Delhi to Jhalawar, and further to Bhilwara where she was lodged at the house of Gopi Kishan. During this period the prosecutrix stated that she was continued to be raped by Prahlad from time to time. It was stated that Prahlad was a rikshaw -puller and during the period he was out at the work, she was locked in the room. According to the prosecutrix, finally one day she got an opportunity and called her maternal cousin Shashikant on his phone. Thereupon the prosecutrix's mother, uncle, and Shashikant arrived at Bhilwara and with the help of local residents of the colony where she was lodged at Bhilwara she was rescued. At the relevant time Prahlad had gone out pulling rickshaw to make a living. Thereafter she was taken to Kota by her rescuers and then to the Police Station where a report was lodged. The prosecutrix stated that she was also medically examined by the Doctor at the instance of police and her statement was recorded under Section 164 Cr.P.C. before the Magistrate. The other prosecution witness of relevance is Dr. Arun Sharma (Pw. 6), who stated that he was posted as Medical Jurist at MBS Hospital Kota and on 25 -10 -2005 on a request by SHO Police Station Vigyan Nagar, Kota conveyed to him by Radha Kishan ASI, he conducted a medical examination of the Prosecutrix Jyoti @ Arti with regard to her age and forced sexual intercourse. He stated that Dr. Bharti Saxena had assisted him for the medical examination. The doctor in his examination stated that there were five scratches on right cheek of the prosecutrix, and one injury 5x2 cm long on middle of her back. Both the injuries were only about a week old. It was stated by the Doctor that on the basis of ossification test of the prosecutrix and result thereof based on x -ray report and the physical condition of the prosecutrix it could be stated that the prosecutrix was 15 -16 years of age. Mohan Lal Sharma (Pw. 9), was the Head Master of the Govt. Primary School, Sanjay Nagar Kota. According to Mohan Lal the Transfer Certificate (Ex. P -2) of Arti had been issued by him on the basis of School Register (Ex. P -14) showing the date of birth of the prosecutrix as 16 -6 -1992. He stated that the said entry was made on 4 -7 -2002, when Arti sought admission in class III in the school. It was stated that Arti had left the school on 10 -8 -2005 when she was in class VI.
(3.) APART from the aforesaid prosecution witnesses, the prosecution relied upon Ex. P -7, which was the medical examination of the prosecutrix. The medical examination showed that apart from two minor injuries neutral on the issue of rape no other external injury indicative of rape was found on the person of prosecutrix. The hymen of the prosecutrix was found old lacerated and she appeared to be used to sexual intercourse. The Doctors opined that no opinion could be given with regard to recent sexual intercourse, Blood, saliva, vaginal swab and vaginal slide were taken of the prosecutrix for chemical analysis. However no FSL report appears to have been received or relied upon by the prosecution in the trial court.;