R.R.YADAV, J. - (1.) The instant Criminal Jail Appeal is preferred against the judgment dated 6-8- 1986 passed by learned Sessions Judge, Merta in Cr. Case No. 33/85 convicting and sentencing accused Bhawani Giri alias Deo Karan u/Ss. 366-A, 376, 377, 324 and 342, I.P.C. The learned Sessions Judge found the accused-appellant guilty of the aforesaid offences and convicted and sentenced him for seducing minor girl aged about 3 years namely Kumari Durga prosecutrix for illicit intercourse committing rape and unnatural offence causing voluntary hurt by his teeth on her cheeks and wrongfully confining her. The learned Sessions Judge sentenced the accused-appellant u/S. 376, IPC for imprisonment of life together with a fine of Rs. 100.00 and in default to further undergo six months' R.I., u/S. 366-A, IPC the learned Sessions Judge convicted the accused-appellant for l0 years' R.I. together with a fine of Rs. 100.00 and in default to further undergo six months' R.I., u/S. 377, IPC the accused-appellant is sentenced for 10 years' R.I. together with a fine of Rs. 100.00 and in default to further undergo six months' R.I. u/S. 324, IPC the learned Sessions Judge has sentenced the accused-appellant for one year's R.I. and u/S. 342 sentenced the accused-appellant for six months' R.I. According to the judgment of learned Sessions Judge the sentences awarded by him to accused-appellant are to run concurrently.
(2.) The facts of the prosecution story in nutshell can be recapitulated within the narrow compass. It is alleged by the prosecution that on 29-7-85 at about 10 a.m. the accused-appellant Bhawani Giri alias Deo Karan Maharaj was going with prosecutrix Durga PW-3 by holding her finger. When PW-6 Rukma and PW-8 Laxman Dan saw accused-appellant going with prosecutrix PW-3 Durga they enquired from the accused-appellant as to where he was taking the prosecutrix, whereupon the accused-appellant replied that prosecutrix was demanding in 'Santha', (sugarcane) therefore, he was going with her to provide her 'santha' and as such the accused-appellant went along with prosecutrix. The prosecutrix Durga reached her house at about 2 p.m. Looking at the physical condition of the prosecutrix her mother PW-5 Suwati/and her grand-mother went along with prosecutrix where PW-8 Laxman Dan, Awar Dan and Kailash were sitting. Both ladies showed the physical condition of the prosecutrix to the aforesaid persons and requested them to see what has been done with the prosecutrix by the accused-appellant. All the witnesses present at the shop of Kailash saw and found that blood was coming out from her vagina and anas and further found that there was swelling on these parts of the body of the prosecutrix. They further found injuries of teeth on her cheeks. All these witnesses asked from the prosecutrix how all this happened upon which the prosecutrix named the accused-appellant. All these witnesses were satisfied from the physical condition of the prosecutrix that the accused-appellant has committed rape and sodomy with the prosecutrix. The villagers collected at the shop of Kailash went in search of accused-appellant. PW-4 Bhanwarlal, PW-8 Laxman Dan, PW-9 Vishan Dan and Daroga reached at the Jhunpa of PW-10 Badri, where the accused-appellant was sitting. All these persons caught hold of the accused-appellant and brought him in the village. Many more villagers collected there and after seeing the act of bestiality committed by the accused-appellant with the prosecutrix enraged and infuriated mob started to belabour the accused-appellant. It is further alleged in the FIR that the accused-appellant was living in the village for one year as a sadhu and was respected by the villagers as a saint. Earlier he was living at Ghariawali Bagechi where his 'Gudra' was lying. It is alleged that the accused-appellant has committed rape and sodomy with the prosecutrix at Ghariawali Bagechi. The accused-appellant was taken to police station along with prosecutrix where written FIR Ex. P/5 was lodged on the basis of which formal FIR Ex. P/6 was drawn at Police Station Pilwa district Nagaur and investigation commenced.
(3.) After completion of usual investigation, a challan was submitted by the police in the court of Additional Chief Judicial Magistrate, Parbatsar who committed the case for trial vide his order dated 19-10-85 to the Court of Sessions Judge. The learned Sessions Judge framed charges against the accused-appellant for the offences u/Ss. 366-A, 376, 377, 324 and 342 IPC. The accused-appellant pleaded not guilty and claimed trial.;