S.C.AGGARWAL, J. - (1.) THIS appeal has been filed by the appellants, Gopiram @ Gopi Kishan and Dhanraj, against the judgment dated 18th April, 1977, passed by the Additional Sessions Judge, Churu in sessions case No. 33/75. In the sessions case aforesaid the appellants, along -with one Hanuman, were prosecuted. Appellant Gopiram @ Gopikishan was charged with the offences under sections 376 and 448 IPC, Dhanraj was charged with the offences under sections 376/114 and 448 IPC and Hanuman was charged with the offences under sections 376/109 and 448 I.P.C. The Additional Sessions Judge acquitted accused Hanuman of all the charges but convicted appellant Gopiram @ Gopikishan of the offences under sections 376 and 448 I.P.C. and appellant Dhanraj of the offences under sections 376/114 and 448 I.P.C. Gopiram has been sentenced to rigorous imprisonment for three years and a fine of Rs. 500/ - and in default of payment of fine to undergo rigorous imprisonment for six months under section 376 I.P.C. and to rigorous imprisonment for one year and a fine of Rs. 100/ - anti in default of payment of fine to undergo rigorous imprisonment for one month under section 448 I.P.C. Dhanraj has been sentenced to rigorous imprisonment for two years and a fine of Rs. 200/ - and in default of payment of fine to undergo R.I. for three months under section 376/114 I.P.C. and one year R.I. and a fine of Rs. 100/ - and in default of payment of fine to undergo R.I. for one month under section 448 I.P.C.
(2.) THE case of the prosecution is that Rajamma, P.W. 1, was employed as a staff nurse at Government hospital Sujangarh. She was staying in the staff quarters within the hospital compound and she was sharing the quarter No. 2 with another staff nurse, Vijayamma. On the date of the incident Girija the younger sister of Vijayamma was also staying in the said quarter. On 21st March 1975 Rajamma after completing her duties in the hospital, returned to the quarter at about 8.30 p.m. and after taking her meals she retired to bed at about 9.15 p.m. Vijayamma and her sister. Girija, were sleeping on another cot in the same room. After about half an hour then: was a knock at the door and the door was opened by Vijayamma. The person who knocked the door told Vyayamma that Smt. Shanti, the wife of compounder Deep Chand, who was living in the adjacent quarter No. 3, was calling her and thereupon Vijayamma left after closing the door from outside. About 15 minutes thereafter the appellants opened the door and entered the room and switched on the light and told Girija that her sister was calling her and thereupon Girija left the room and Rajamma was left alone with the appellants. The case of the prosecution is further, that thereafter the appellants closed the door, switched off the light and appellant Gopiram committed rape on Rajamma and while he was doing so, appellant Dhanraj had caught hold of the hands of Rajamma, After some time, Vijayamma returned and knocked at the door and thereupon appellants switched on the light and opened the door and Vijayamma entered the room along -with her sister Girija and accused Hanuman. Thereafter all the three accused left and, while leaving Hanuman as well as Gopiram extended the threat to Rajamma that if she told anybody about this incident, she would be killed. After they had gone away, Rajamma started crying loudly and, other persons staying in the quarters nearby armed at the scene. At about 12 -12.30 P.M. Dr. Girish Prasad Mathur P.W. 9, Dr. Raghuvir Singh Shekhawat. P.W. 8 and Dr. Miss -Shanti Jain P.W. 7 arrived at the quarter of Rajamma and Rajamma complaint to them about her having been raped by the appellants and thereupon Dr. Girish Prasad Mathur telephoned the police station and the police constable came to the hospital. Rajamma went to police station Sujangarh and lodged the report (Ex. P. 1) at the police station on 22nd March 1975 at 2.30 a.m. Rajamma was medically examined by Dr. P. P. Gupta, P.W. 10 Medical Jurist, S.M.J.A. Hospital, Ratangarh, on 22nd March, 1975 at 12.30 p.m. and after the said examination Dr. Gupta prepared the injury report Ex. P. 7. On 24th March, Dr. Gupta sent a supplementary report Ex. P. 8. wherein he expressed the opinion that rape had been committed on Rajamma. The petticoat which was worn by Rajamma at the time of the incident was seized by the police vide memo Ex. P. 3 and was sent to the Department of Chemical. Examiner, Rajasthan Jaipur. The report Ex. P. 14, of the chemical examiner shows that sentence and spermatozoa could not be detected on the petticoat. After completing the investigation, the police filed the charge sheet against the accused persons in the court of Chief Judicial Magistrate, Churu, who committed the accused persons for trial to the court of sessions and thereupon the accused persons were tried for the charges referred to above by the Additional Sessions Judge, Churn. The accused pleaded not guilty and claimed to be tried. The prosecution, in support of its case, has examined 14 witnesses out of whom the complainant Rajamma is P. W. 1, Smt. Shanti P.W.2 is the wife of compounder Deep Chand, Smt. E.L. Chand P.W.3, Sushil kumar P.W.5 and Smt. Vijaykumari P.W.6 were staying in quelled No.4 adjacent to the quarter of Deep Chand compounder and had reached the quarter of Rajamma shortly after the incident. Dr. Miss. Shanti Jain P.W.7, Dr. R.S. Shekhawat P.W.S and Dr. Girish Prasad Mathur P.W. 9 are the doctors attached to the Government hospital, Sujangarh and had reached the quarter of Rajamma at about 12 0Clock in the night. Dr. P.P. Gupta, P.W. 10 is the medical officer at Ratangarh hospital, who bad medically examined Rajamma. Mumtaz Ali P.W. 14 is the head constable attached to the police station, Sujangarh who had conducted the investigation in the case. Vijayamma and Girijahad returned to Kerala after the incident and they could not he examined.
(3.) THE accused persons in their statements recorded under section 313 Cr. P.C. have denied the prosecution case. Appellant Gopiram has submitted that he has been falsely implicated by Sushil the son of the Smt. Chand bai. The accused persons also examined one witness, Babulal D.W. 1 in their defence.;