G.R.MOOLCHANDANI,J. - (1.) This appeal is directed against the judgment dated 31/05/2011 passed by Additional District and Sessions Judge (Fast Track) No.1, Udaipur in Sessions Case No.202/2008 convicting and sentencing the accused under Section 376 of I.P.C. for life imprisonment with a fine of Rs.2,000/- and further to undergo one month's simple imprisonment.
(2.) The recitals of the F.I.R Ex.P1 read as under:- The complainant Kika son of Kanaji, by caste Garasiya, aged 38 years, resident of Teja Ka Vas, PS Bekariya gave a verbal information that at seven in the evening, he came to his home, where his wife Meethi informed that their seven year old daughter Sita had gone to fetch Chhachh from her Nana Vagji's house in the morning, who came in the evening at around half past six in naked condition, blood was coming out of her private part, on querry, she informed that when she was coming with Chhach Ranga son of Jagga resident of Teja Ka Vas got hold of her forcibly and took her to nearby Ratanjot Khet (field) and raped her there, cloths of baby were lying there, he too asked his prosecutrix daughter Sita, then she confirmed it and after informing the incident to Narsa son of Dhula Garsiya and Jagga Garsiya son of Deeta Garsiya, resident of Teja Ka Vas, he came there for information, Ranga belongs to their village so, Sita recognised him, this F.I.R was lodged as F.I.R. No.68/2008 on 24.10.2009 at 11 p.m., which was investigated and charge-sheet was filed against the accused-appellant, after framing of charge, prosecution produced fourteen witnesses and got exhibited twenty three documents and the case was concluded with the aforesaid finding of conviction.
(3.) Heard arguments of both the sides, learned counsel for the accused-appellant has contended that prosecution has failed to establish its case despite learned trial Court has passed impugned erratic judgment, statements of prosecutrix have not been recorded and in absence of which, accused-appellant cannot be convicted, the case of the prosecution is based on surmises and there is no evidence against the appellant, so, appeal be allowed and the accused be acquitted. Per contra, learned public prosecutor has contended that prosecution has adduced reliable evidence, prosecutrix is a minor baby, who was ravaged by the accused-appellant and positive medical evidence is there, which shows that minor girl was raped and her body was having serious injuries, medical and FSL have also corroborated the incident, all the witnesses of the prosecution have narrated the incident correctly, so there is no flaw in the findings and he has further argued that the accused is a gruesome habitual rapist, he has also outraged chastity of two women earlier, so he should be dealt with stringently, there is no infirmity in the impugned finding, so appeal be dismissed.;