BANSAL, J. - (1.) THE instant appeal is directed against the judgment dated 30. 09. 2000 passed by the learned Special Judge (Women Atrocities & Dowry Cases), Kota in Sessions Case No. 188/1997 whereby all the accused appellants have been convicted and sentenced as under:- Rameshwar, Kanwar Lal, Tulsi Ram, Ashok and Udai Lal each u/s. 366 IPc R. I. for three years and a fine of Rs. 1 000/-, in default of payment of fine to further suffer R. I. for three months. u/s. 376 (2) (G) IPc R. I. for ten years and a fine of Rs. 5 000/-, in default of payment of fine to further suffer R. I. for six months. u/s. 376 IPc No separate sentence has been imposed. Rami Bai and Kanchan Bai each u/s. 366 IPc R. I. for three years and a fine of Rs. 1 000/-, in default of payment of fine to further suffer R. I. for three months.
(2.) THE prosecution case, in nutshell, is that on 22. 02. 92 at about 3. 00 p. m. prosecutrix Hemlata (PW5) was abducted from Kota City and taken to Rawatbhata by all the appellants and kept her in a hut. In the night appellants Rameshwar, Kanwarlal, Tulsiram, Ashok and Udailal forcibly committed sexual intercourse with her. Next day she was taken to another village by all the appellants and again in the night appellants Rameshwar, Kanwarlal, Tulsiram, Ashok and Udailal committed rape on her in a house. In the morning she was taken to the house of appellant Ashok situated in village Gudda. In that house also sexual intercourse was forcibly committed with her by the aforesaid five appellants. As per the prosecution case, in absence of the appellants the prosecutrix went to a shopkeeper and informed him about her abduction and rape who reported the matter at Police Station Bijolia, District Bhilwara whereupon the prosecutrix was rescued by the police and Memo Ex. P8 was prepared. About the abduction of her daughter, mother of the prosecutrix PW2 Smt. Shanti Bai submitted a written report Ex. P7 to SHO, P. S. Dadabai, Kota on 22. 02. 92 at 6. 30 p. m. On the basis of the written report Ex. P7, FIR Ex. P8 was registered and investigation commenced. SHO, P. S. Bijolia informed the SHO, P. S. Dadabadi about the recovery of the prosecutrix on 25. 02. 92 and thereafter the prosecutrix was brought to Kota from Bijolia. On completion of investigation, charge-sheet was filed against the appellants in the competent Court. In due course, the appellants came to be tried for the offence punishable under Sections 366, 376 and 376 (2) (G) IPC. To prove the charges, the prosecution examined as many as nine witnesses. In their statements under Section 313 Cr. P. C. all the appellants pleaded innocence. In defence no evidence was adduced. The learned trial Judge on hearing the final submissions, convicted and sentenced the accused appellants as indicated here- in-above. I have heard the learned counsel for the accused appellants, learned Public Prosecutor for the State and have also perused the impugned Judgment as also the prosecution evidence. In her statement prosecutrix PW5 Hemlata deposed that she was married to Suresh and at the time of the incident she had been residing at her parents' house situated in Kota City for the last eighteen months and she was having a son aged four years. She further stated that on 22. 02. 92 on arrival of her grandmother she went to Shivjyoti School, Mahaveer Nagar, Kota to call her mother Shantibai who was employed there. Her mother asked her to go to her house and assured that she would be coming to the house very soon. While the prosecutrix was coming to her house, appellants Rami Bai and Kanchan Bai met her near Balaji temple. Rami Bai caught hold of her. At that time the remaining five appellants came there in a jeep. Having lifted her, she was put in the jeep and thereafter all the seven appellants took her to Rawatbhata. She was kept there in a hut where in the night appellants Rameshwar, Kanwarlal, Tulsiram, Ashok and Udailal forcibly committed sexual intercourse with her. It was also stated by the prosecutrix that when sexual intercourse was being committed, appellants Rami Bai and Kanchan Bai were sitting outside the hut. She further deposed that next day she was taken to another village where also, in the night appellants Rameshwar, Kanwarlal, Tulsiram, Ashok and Udailal committed rape on her one by one. She further stated that next day she was taken to village Gudda and kept in the house belonging to appellant Ashok. Again all the aforesaid five appellants committed sexual intercourse with her against her will and without her consent in the house of appellant Ashok. It was further stated by the prosecutrix that when all the appellants left for a liquor shop, she went to a shopkeeper and informed him about her abduction and on her request the shopkeeper informed the police. The police came at the house of Ashok and she was taken to Police Station Bijolia. Appellants Rameshwar, Kanwarlal, Tulsiram, Ashok and Udailal were also arrested by the police. The prosecutrix further stated that she was abducted with the intention to compel her to live with appellant Kanwarlal as his wife. When she refused to live with Kanwarlal, she was raped. Pw2 Shanti Bai is the mother of the prosecutrix. She deposed that on the date of the incident at about 3. 00 p. m. Hemlata came to Shivjyoti School, Talvandi where she was on duty and told her that her grandmother was calling her. Shanti Bai further stated that when she reached at her house she did not find Hemlata there. Thereafter she went to Udia Basti and enquired about the whereabouts of Hemlata from the maid-servant of appellant Udailal. The maid-servant told her that Hemlata had been forcibly taken in a jeep by Udailal, Kanwarlal, Tulsiram, Kanchan, Rami and two other persons. Thereafter she went to the Police Station and lodged a written report Ex. P7.
(3.) PW6 Dhanna Lal Bhat, R/o village Gudda has deposed that in March, 1992 Hukma came to him and informed that a lady had sought his help and informed him that she had been abducted. Thereafter he went to a house and found four persons and a lady there. Dhanna Lal further stated that he informed the police whereupon police came at that house and took that lady to the Police Station. Accused appellants were also arrested by the police from that house. Pw1 Dr. G. S. Vishnar deposed that on 25. 02. 92 at 2. 30 p. m. as Medical Jurist, M. B. S. Hospital, Kota, he conducted medical examination of Hemlata D/o Ishwarlal and found the following injuries on her person:- 1. Scratch 1" obliquely on right malar region. 2. Abrasion 1/4" on right side of bridge of nose. Dr. Vishnar also stated that both the above injuries were simple in nature and caused by the blunt weapon. He further deposed that hymen was old torn, vagina admits two fingers easily. She was habitual to sexual intercourse. It was also stated by him that in view of the above two injuries, possibility of rape cannot be ruled out. He prepared Report Ex. P1 which bears his signature. On close and careful scrutiny of the testimony of the aforementioned witnesses and other prosecution evidence, I have found the following infirmities in the prosecution case:- (i) Duration of both the injuries found on the person of the prosecutrix at the time of medical examination was neither mentioned in the Report Ex. P1 nor stated by Dr. Vishnar in his deposition. Therefore, it cannot be held that these injuries were sustained by the prosecutrix during the alleged incident of rape. (ii) As per the testimony of the prosecutrix, five appellants committed sexual intercourse with her without her consent and against her will thrice but no injury was found on her private parts, thighs, buttocks, chest and back. If five persons committed sexual intercourse with a lady without her consent forcibly in three successive nights one by one, it cannot be imagined that there would be no injury on the private part of the lady. There must be some swelling or laceration on the private part. Though the lady was habituated for intercourse but the fact is that five persons committed intercourse with her in three successive nights, the prosecutrix was not just a child who would have surrendered herself to a forced sexual assault without offering any resistance whatsoever. (iii) As per the testimony of the prosecutrix, in absence of the appellants she went to a shopkeeper and told him about her abduction but that shopkeeper has not been examined by the prosecution. As per the testimony of Dhanna Lal, he was informed by Hukma and Gheesalal about the abduction of Hemlata but both Gheesalal and Hukma have not been examined by the prosecution before the Trial Court. (iv) As per the testimony of Pw2 Shanti Bai, she was informed about the abduction of Hemlata by the maid-servant of appellant Udailal but Pw9 Shakeela who was working as maid- servant at the house of appellant Udailal, has not supported the prosecution and she has turned hostile. (v) Pw8 Omprakash, driver of the jeep who was not declared hostile by the prosecution stated that a lady was taken to Rawatbhata by his jeep by Tulsiram and two ladies. He did not state that the lady was taken to Rawatbhata against her will. (vi) The prosecutrix was allegedly abducted from a public place of Kota City at about 3. 00 p. m. but no eye-witness has been examined by the prosecution. It is not believable that nobody had seen the alleged incident. (vii) Appellants Kanwarlal, Tulsiram and Udailal are real brothers. Appellant Rami Bai is the wife of the maternal Uncle of the prosecutrix. As per the testimony of Hemlata she was forced to live with appellant Kanwarlal as his wife. It is not believable that three real brothers and two other appellants would commit sexual intercourse with a lady who was allegedly abducted with the intention to force her to live with appellant Kanwarlal as his wife, one by one and in presence of two ladies out of which one is closely related to her. (viii) The concerned police officer posted at P. S. Bijolia at the relevant time, has not been examined by the prosecution and, therefore, it has not come on record that what was the earliest version of the prosecutrix when she was found in the house of appellant Ashok. ;