JAIN, J. - (1.) THREE accused-persons - Gopal S/o Gyarsilal Kalal, Mohanlal S/o Bhanwarlal Dhakad and Mst. Geeta W/o Gopal Kalal, have preferred this appeal against the judgment and order dated 6. 10. 2001 passed by the Additional Sessions Judge (Fast Track) No. 2, Bundi, in Sessions Case No. 112/2001, whereby accused Gopal and Mohanlal have been convicted and sentenced under Section 376, IPC, to seven years rigorous imprisonment and a fine of Rs. 1,000/-, in default of payment of fine to further undergo one month's imprisonment; and accused Geeta has been convicted and sentenced under Section 6 (1) of the Immoral Traffic (Prevention) Act, 1956, to one year's rigorous imprisonment and a fine of Rs. 500/-, in default of payment of fine to further undergo one month's imprisonment.
(2.) PW-17, Indra W/o Jagdish, filed a criminal complaint dated 1. 7. 1991, under Sections 498-A, 366 and 376, IPC, in the court of Munisff and Judicial Magistrate, Nainwa, against accused-persons Gopal, Geeta, Mohan and Girraj, alleging therein that marriage of the complainant was solemnized with Jagdish S/o Gyarsilal, Resident of Village Jajawar, about a year ago. Her husband Jagdish became mad about nine months ago. Accused Gopal is the elder brother of her husband Jagdish. Accused Geeta is wife of Gopal and sister-in-law (Bhabhi) of Jagdish, therefore, accused no. 1 Gopal is her brother-in-law (Jeth) and accused No. 2 Geeta is her sister-in-law (Jethani ). In the complaint, it was further alleged by the complainant that after her marriage when her motherin- law Nurka came at her maternal house to bring her, she went with her to Village Jajawar and lived there for about one month, but her husband became mad, and thus marital relations could not take place in between them, and, therefore, she came back to her maternal village Sanwatgarh with her father. It was further alleged by the complainant that about three months ago Geeta, her sister-in-law (Jethani), came at her maternal village Sanwatgarh and requested her parents to send Indra with her. The parents of Indra send her with Geeta. Thereafter the accused- persons started harassing the complainant. Accused Geeta used to tell her that Jagdish, husband of Indra, is impotent, therefore, she should do as per Geeta's wish. It was further alleged that her brother-in-law (Jeth) accused Gopal committed rape with her. It was also alleged that about a month ago accused Geeta took Rs. 50/- each from accused Mohan and Girraj and sent both of them to have sexual intercourse with the complainant. It was further alleged in the complaint that about eight days ago Geeta told her that she should marry with her brother Bhairon. About four days ago Kamla, the mother of the complainant, came to meet her. Accused Gopal and Geeta both told her mother to marry the complainant with Bhairon, the brother of Geeta and brother-in-law (Sala) of accused Gopal. However, her mother brought her to village Sanwatgarh, otherwise both the accused-persons would have sold her to Bhairon. Accused Gopal and Geeta, both, wanted to sell her and the reason behind it is that her husband Jagdish has become mad and, in case, she goes elsewhere then they will capture her entire property. She was detained for about three months and she was not allowed to go anywhere, therefore, it was prayed in the complaint that the above action of the accused- persons is punishable under Sections 376, 366 and 498- A, IPC, and they may be punished accordingly. The learned Judicial Magistrate, vide its order dated 1st of July, 1991, forwarded the said complaint for investigation under Section 156 (3) of the Code of Criminal Procedure. The Police Station, Dablana, registered F. I. R. No. 118/91 against all the four accused-persons for the offence under Sections 498-A and 376, IPC, and started investigation. After completion of investigation, the police filed a challan against accused- appellants under Section 498- A, 366, 376 and 120-B, IPC, and Section 6 (1) of the Immoral Traffic (Prevention) Act, 1956. So far as another accused Girraj is concerned, at that time his age was found less than 16 years, therefore, a challan was filed against him in Juvenile Court. The learned trial court framed charge against accused Gopal under Sections 498-A and 376, IPC; against accused Mohan under Sections 376, IPC; and against accused Smt. Geeta under Sections 498-A, 120- B, IPC, and under Section 6 (1) of the Immoral Traffic (Prevention) Act, 1956. The accused persons denied the charge and claimed to be tried. The learned trial court, after conclusion of the trial, acquitted accused Gopal from the charge under Section 498-A, IPC, accused Geeta from the charge under Sections 498-A and 120-B, IPC, but convicted and sentenced both of them as well as accused Mohan Lal, as mentioned above.
(3.) THE learned counsel for accused-appellant Shri Kamlakar Sharma, contended that the offence under Section 376, IPC, is not made out against any of the accused-persons for the reason that the conviction is based on sole testimony of PW-17 Indra, whose statement appears to be unnatural. He read out the statement of PW-17 Indra, wherein she stated that Geeta allowed her husband Gopal to have sexual intercourse with Indra. He contended that no lady will allow her husband to have sexual intercourse with another lady, therefore, her statement does not appear to be trustworthy and in case her statement is discarded then there is no other evidence to connect the accused persons with the crime. He also contended that the statement of Indra is not corroborated with any other evidence including the medical evidence. He also contended that so far as Section 6 of the Immoral Traffic (Prevention) Act, 1956 is concerned, the same is also not made out as PW-17 Indra was residing in her residential house along- with her mother-in-law Nurka and other family members including accused Gopal and Geeta and the said residential house cannot be treated as brothel and it is not correct that Indra was detained in her in-law's house. He, therefore, contended that the learned trial court committed serious illegality in convicting and sentencing the accused-persons. Alternatively, the learned counsel for the appellants contended that accused Gopal and Mohan both have remained in actual custody for about five-and half- year and in case the period of remission is included in it then almost they have completed seven years of imprisonment and either they have been released or they are likely to be released from jail, therefore, in case, this court does not agree with his contentions then the sentence of the accused appellants may be reduced to a period of sentence of imprisonment already undergone by them. So far as accused Geeta is concerned, the learned counsel for the appellants contended that she also remained in jail for about sixteen days and, she being a lady, her sentence of imprisonment of one year, awarded by the learned trial court, may also be reduced to a period of imprisonment already undergone by her. ;