Rajendra Saxena, J. - (1.) This appeal has been preferred against the judgment dated 22.11.95 passed by the Additional Sessions Judge No. 3, Kota, whereby he convicted appellant Dhannalal for offences under Sections 376 & 342 Indian Penal Code and appellant Prakash Under sections 376/109 & 342, Indian Penal Code and sentenced each one of them to R.I. for ten years with a fine of Rs. 200/- in default 3 months' RI on the first count, and to one year's RI on the second count and further directed that their substantive sentences shall run concurrently.
(2.) Succinctly stated, relevant facts for disposal of this appeal are that PW 6 Smt. Lila by caste Bairwa r/o village Devli had come to her aunt's (Bua's) house situated in village Lakheriya, that on 10.8.94 at about 1.30 PM. while she was coming back after answering the call of nature and had reached in front of the house of Ganga Ram, appellants Dhannalal and Om Prakash s/o Gangaram and co- accused Kajod (who has been acquitted by the trial Court) met her. It is alleged that appellant Dhannalal caught hold of her hand and forcibly dragged her inside the house of Gangaram and that co-accused Prakash & Kajod bolted and locked the doors of that house from outside and then went away. It is further alleged that appellant Dhannalal wrapped a towel around her mouth, caught hold of both her hands, forcibly fell her down and committed rape with her. Ms. Lila after removing that towel raised an alarm, which attracted her 'Bhabhi' PW 5 Kani Bai, who came there and got opened the lock of that house from Om Prakash. Ms. Lila narrated about the incident to Smt. Kani Bai. PW 8 Jai Shankar, the 'Phupha' of the prosecutrix, who had come later on took her to police station Suket, where she submitted written report Ex.R 4 to PW 11 Akhtar Ali,.H.C. the then incharge of police station on the same day at 6.10 PM., whereupon formal FIR Ex.P 5 was drawn. PW 14 Dalip Singh ASI, who conducted the investigation in this case, inspected the place ot occurrence on 13.8.94 and prepared site plan Ex.P 2 at the instance of the prosecutrix. He also seized her skirt (Ghaghra) vide seizure memo Ex.P 3. On 13.8.94 Dr. N.D. Hirani, Medical Officer incharge of the Primary Health Center, Ramganj Mandi examined the prosecutrix but did not find any external or internal injury either on her body or her genitals. He vide his report Ex.P 8 opined that the prosecutrix was in habit of regular sexual intercourse and there was no evidence of recent intercourse. He, however, reserved his final opinion till the receipt of chemical examination report of her vaginal swabs and pubic hair. On 16.8.94 PW 12 Purshottam Radiologist conducted the radiological examination of Ms. Lila and opined that her age was above 16 years but below 17 years. Appellant Dhannalal was arrested on 16.8.94 and it is alleged that in pursuance to his voluntary disclosure made under Section 27 of the Evidence Act, he got recovered his under-wear (Chaddi), which had already been washed off. The vaginal swab, public hair and the skirt of the prosecutrix as also the underwear of appellant Dhannalal were sent to the State Forensic Science Laboratory but the prosecution- did not file the chemical examination report. Appellant Prakash and co-accused Kajod were also arrested and after investigation, challan was filed in the Court of Additional Chief Judicial Magistrate Ramganj Mandi, who in turn, committed the case to, the Court of Sessions.
(3.) Appellant Dhannalal was charged for offences under Sections 376 and 342, Indian Penal Code while appellant Om Prakash & co- accused Kajod were charged under Sections 376/34 & 342 Indian Penal Code. All of them denied the indictment and claimed trial. To prove its case, the prosecution examined as many as 14 witnesses. Appellants and co-accused Kajod in their examination under Section 313, Criminal Procedure Code denied all the circumstances appearing against them in the prosecution evidence and claimed that they have been falsely implicated due to enmity. However, they did not examine any witness in defence. After trial, the learned Special Judge by his impugned judgment acquitted co-accused Kajod but convicted & sentenced the appellants in the manner indicated above. Hence this appeal.;