A.K.MATHUR, J. - (1.) THIS is an appeal directed against the judgment of learned Sessions Judge, Balotra dated 17th April, 1992 whereby the learned Judge has convicted the accused appellants under Section 376 read with 511 and sentenced them five years rigorous imprisonment to each of the accused and imposed a fine of Rs. 2000/ - each and in default to further undergo one year's rigorous imprisonment. He also convicted them under Section 363 I.P.C. and sentenced them to one year's R.I. each and a fine of Rs. 500/ - each, and in default to further undergo three months' R.I. Both these sentences were ordered to run concurrently. He further ordered that if the amount shall be given to Mst. Shailu.
(2.) THE case of the prosecution is that on 15.10.1991 a First Information Report was filed at police Station, Mandoli by Aman Singh, resident of Kalyanpura stating therein that his Dhani is on the Balotra route where he resides alongwith his family members. He had gone to Suratgarh to attend some date in the Court and returned back at about 5 P.M. His daughter Shailu, aged 11 years told him that at about 4 P.M. when she had gone from Dhani to Kalyanpur for the purpose of grinding Bajari, when sl1e was on the road, two boys came on motor cycle, who were from village Doli and were by caste Bishnoi, stopped their motor cycle and pulled her up and took her to some distance and thereafter fell her on the ground and one caught hold of her hands and the other who had opened his pant sat over her and pulled her paticot and attempted to commit intercourse on her. He also bite on her right check. She started shouting and on hearing her cry her uncle Bahadur Singh and Poora Ram Jat, resident of Shighaw came there and on that both the boys ran away on their motor - cycle. It is alleged that Bahadur Singh told that the person who caught hold of her hands was Hanumap and who sat on her was Papiya, both by caste Bishnoi, resident of - Doli. The motor cycle bore the Number RPK 935. On this report, Mst. Shalu was medically examined and thereafter a case was registered against both the accused persons and they were arrested on 16.10.1991. On the information of Papiya, motor cycle RPK 935 was recovered and after close of investigations, both the accused were challenged under Section 376/511, 341, 323, 354 and 365 I.P.C. Learned Magistrate committed the case to the Court of Sessions and the accused were charged under Section 365 and 376/511 I.P.C. According to the medical report she was said to be 11 years age and had an injury of bite on her check. No other injury was found on the body of Mst. Shailu. Prosecution in support of its case examined 11 witnesses including the girl (P.W. 6) and Amari Singh, her father (P.W. 2) as also Bahadur Singh, her uncle (P.W. 3) and Poora Ram (P.W. 4). P.W. 3 and P.W. 4 i.e. Bahadur Singh and Poora Ram are said to be the eye -witnesses of the incident. P.W. 1 Dr. Mohanlal has also proved the medical certificate. Learned Sessions Judge after examining as the witnesses came to the conclusion that the accused have attempted rape on the girl and kidnapped the girl, therefore, convicted the accused appellants as aforesaid. Hence, the present appeal. Mr. Vyas, learned counsel for the appellants has taken me to the statements of P.W. 3 Bahadur Singh, P.W. 4 Poora Ram, P.W. 2 Aman Singh and P.W. 6 Mst. Shailu and statement of Dr. Mohanlal P.W. 1. Learned counsel has submitted that the statement of P.W. 3 and P.W. 4 the so cased eye witnesses are unreliable as they have not seen the incident happening and he has also pointed certain contradictions in the statements of the witnesses. He also submitted that P.W. 6 Shailu does not bear any other injury on her any part of the body except a scar on her cheek alleged to have caused on account of the biting by the accused. He also referred in detail to the statements of P.W. 6 and tried to challenge veracity of the statement of this witness viz. a viz. the other two eye witnesses that she has deposed 'Mare -re, Mare -re', whereas the eye witnesses have said that she uttered 'Chhudao, Chhudao'. He has also submitted that in the cross examination of P.W. 2, Aman Singh a suggestion has been put that Aman Singh who is a Driver had a row with these accused persons some time back and, therefore, Aman Singh malafidely motivated towards the accused and has wrongly foisted this case. He has also submitted that the statements of the witnesses were actually recorded on 16th i.e. the next date of the incident but an these statements have been ante - dated. As against this, learned Public Prosecutor has supported the judgment of the learned Sessions Judge.
(3.) I have considered the rival submissions and gone through the record. So far as the statements of P.W. 6 Shailu is concerned, she has very categorically stated that both these accused persons took her and tried to commit rape on her but on account of coming of P.W. 3 Bahadur Singh and P.W. 4 Poora Ram, both these accused ran away from that place. She has also deposed that accused Hanuman caught hold of her hands and accused Papiya sat on her and attempted to commit rape and she cried for the help as a result of which Bahadur Singh and Poora Ram came and these accused persons ran away on their motor cycle. This statement of P.W. 6 stands corroborated from the medical evidence that there is an injury on her right cheek of bite leaving behind a scar of teeth mark. Therefore, the version given by P.W. 6 substantially corroborated from the medical evidence.;