S.N.Modi, J. - (1.) This is an appeal by Sukkram and Mohammed Saddiq against the judgment of the Additional Sessions Judge No. I, Jodhpur, dated 31st August, 1974, whereby the appellants have been convicted and sentenced as under;- (1) Sukhram: (1) under section 376, I.P.C., sentenced to five years rigorous imprisonment and a fine of Rs. 200/ - , and, in default of payment of fine to undergo simple imprisonment for 15 days more ; (2) under section 325, I.P.C. sentenced to four years rigorous imprisonment and a fine of Rs. 200/-, and in default of payment of fine to undergo simple, imprisonment for 15 days more ; and (iii) under section 323, I.P.C. sentenced to a fine of Rs. 100/-, and, in default of payment of fine to undergo simple imprisonment for one week. (2) Mohammed Saddiq (i) under section 376, I.P.C. sentenced to five years' rigorous imprisonment and a fine of Rs. 200/ - , and, in default of payment of fine to undergo simple imprisonment for 15 days more; (ii) under section 325, read with section 34, I.P.C. sentenced to four years rigorous imprisonment and a fine of Rs. 200/-, and, in default of payment of fine' to undergo simple imprisonment for 15 days more ; and (iii) under section 323, I.P.C. sentenced to a fine of Rs. 100/-, and, in default of payment of fine to undergo simple imprisonment for one week. Both these appellants were tried by the Additional Sessions Judge of the offence under section 376, 394 and 325 read with section 34, I.P.C. As regards the charge against them under section 394, I.P.C. the learned Additional Sessions Judge acquitted both the accused.
(2.) The learned counsel for the appellants has not challenged the correctness and validity of the conviction of the appellants under section 325, 323, and 325 read with section 34, I.P.C.
(3.) The relevant facts, so far as offence under section 376, I.P.C. is concerned are like this : The prosecutrix is Mst. Shanti. Her age at the time of commission of the offence has been estimated by the doctor as 19 years. She is a married woman and before the date of occurrence she had given birth to two children. The date: of occurrence is 12-3-73. At about 11, a.m., on that day, Mst. Shanti along with her mother and children was passing in front of Um maid Hospital located in the city of Jodhpur. The two appellants met them near Geeta Bhawan. The appellants asked the mother of Mst. Shanti to accompany them to Sursagar as they would be employed at some wedding party. The two appellants, the mother of Mst. Shanti and her children, were carried in a auto-rikshaw. All of them alighted from the auto-rikshaw near Kutton-ka-Bara. The two appellants asked Mst. Shanti. her mother and her children to go inside the Kutton-ku-Bara. The prosecution case is that at Kutton-ka-Bara both these appellants commuted rape on Mst. Shanti and belaboured her mother causing several injuries on her person. A report about the incident was lodged by Mst. Shanti on reaching Ummaid Hospital, where she got admitted her mother as indoor patient. Mst. Shanti was examined by P. W. 3 Dr. Prakash Dayal on 13.3.73 at 9.50. a. m. The Doctor found that Mst. Shanti was well built and well developed. Her height was 148 cm. and her weight was 39 kilograms. She had 28 teeth, 14 in each jaw. Her breasts were well developed and were in a state of breast feeding. Her axilliary hairs were black and about 1.5. cm. long. Her pubic hairs were black and about 0.5 cm. long and showed evidence of previous shaving. The doctor also examined her private part and found that her hymen showed old tears. The doctor further found that he was not in a position to give any opinion whether any person had recent sexual intercourse with her. According to the, doctor Mst. Shanti was used to sexual interceresse and her age was about 19 years. The doctor also examined her other parts of the body and found one defused swelling over the upper lip and bruise 0.5cm. on the bridge of nose on right side. Mst. Shanti also complained to the doctor that she had pain on the left scapular region.;