JAS RAJ CHOPRA, J. - (1.) THESE two appeals No. 132/78 filed by Kale Khan and the other No. 99/1978 filed by Sher Singh are directed against the judgment of learned District and Sessions Judge, Jalore, dated 16 -2 -1978 whereby the learned lower court held both the accused -appellants guilty of the offences under Sections 376 -511 IPC read with Section 34 IPC as also under Sections 327/34 and Section 323 IPC and sentenced each one of them to a period of three years rigorous imprisonment together with a fine of Rs. 500/ - for the offence under Section 376/511 and Section 34 IPC and sentenced them to two years rigorous imprisonment together with a fine of Rs. 300/ - for the offences under Sections 327/34 IPC and to six months rigorous imprisonment together with a fine of Rs. 100/ - for the offence under Section 322 IPC. In default of the payment of the amount of fine of Rs. 500/ - the accused has been further ordered to undergo three months rigorous imprisonment. In default of the payment of the amount of fine of Rs. 300/ - they were ordered to undergo two months rigorous imprisonment each and in default of the payment of fine of Rs. 100/ - they were further ordered to undergo one months rigorous imprisonment each.
(2.) THE fact of this case briefly stated are that one Mst. Nalini K.K. A.N.M. was working at Primary Health -Sub -Centre, Bhagalsefta under the jurisdiction of Primary Health Centre, Bhinmal, District, Jalore. On the night interventing between 23rd and 24th of November, 1977 when she was sleeping in her house at village Bhagalsefta, accused Kalekhan came to her house at 9.30 PM and called her out and told her that the Thakedar is down with fever and so some medicine may be given. She opened the door and supplied to him the requisite medicine to check the fever and closed the doors. At about 10.15 PM one Bhanwarlal who was then working in the Sheep and Wool Department came to her house and enquired from her whether Thakedar and Kale Khan have come to her residence. She again opened the door and told him that they came there and she has given to them the required medicine and they have already left. On this Bhanwarlal left the place and she then closed the doors of the main gate of her house and while returning to her apartment when she reached near the Neem tree situated in the enclosed court -yard of her house it is alleged that both these accused persons i.e. Sher Singh and Kale Khan came near her. According to her probably they were hiding themselves inside the enclosed court -yard of the Sub -Centre. Sher Singh gagged her mouth whereas Kale Khan lifted her by her waist. They took her near the side lane of her house, felled her down on the ground and Sher Singh then sat on her breasts and tried to rape her on which she cried. Sher Singh then tried to gag her mouth by both his hands and in that process one of his arms came in contact with her mouth and thus she got an opportunity to bite his thumb. On hearing her cries Bansilal, Dayalai Ratan Singh, Bhomiya and Reva Shanker etc. came running to her house. On seeing them the accused persons scaled over the boundary wall of her house and escaped. The neighbours then took her to the Sarpanch, who advised her to report the matter to the police. On the next morning she went to Bhinmal and submitted a written report marked Ex. P. 1 to Doctor P. D. Purohit. Incharge of the Primary Health Centre at Bhinmal who forwarded that report to the Dy. S.P. Bhinmal for necessary action. On the basis of this report a case was registered under Sections 376/511 and 456 IPC. The site was inspected and the site inspection plan has been marked Ex. P. 5. Her injuries were examined by the doctor on that very day i.e. 24 -11 -77. Her injury report has been marked Ex. P. 6. The injuries of Sher Singh were also examined on 29th of November, 1977. His injury report has been marked Ex. P. 7. The arrest memos of accused Kale Khan and Sher Singh have been marked Ex. P. 8 and Ex. P. 9 respectively. After the usual investigation a challan was presented in the court of learned Judicial Magistrate, Bhinmal, from where it was committed for trial to the court of learned Sessions Judge, Jalore. The learned Sessions Judge, charged the accused persons with the offence Under Sections 376/511 read with 34 IPC and Section 323/34 IPC and ss. 327/34 IPC. The accused persons did not plead guilty to the charges and claimed trial whereupon the prosecution examined as many as 9 witnesses in support of its case. The statements of accused persons were recorded under Section 313 Cr. PC Sher Singh has taken the plea that the villagers were enraged with him because of the wire fencing done by him and therefore, he has been falsely implicated. His thumb was injured because of a contact with barbed wires. Accused Kale Khan has stated that Bhero Singh abducted his sister -in -law and because of that enmity he has been falsely implicated. They led to evidence in their defence. After hearing the parties the learned lower court decided the case as aforesaid and hence both these convicted accused appellants have separately come in appeal before this Court.
(3.) I have heard Mr. Suresh Kumbhat representing accused appellant Sher Singh and Mr. M. L. Garg for the accused appellant Kale Khan, as also Mr. B. C. Bhansali, learned Public Prosecutor for the State.;