- (1.) THIS is an appeal against the judgment of learned Sessions Judge, Jalore dated 29th May 1987 whereby the learned trial Court has held accused Kapura guilty of the offence u/sec. 376 and 342 IPC and has sentenced him to 1 year R. I. for the offence u/sec. 342 (PC and he has been sentenced to 7 years R. I. together with a fine of Rs. 100/- and in default to undergo one months for the offence u/sec. 376 IPC. Along with him accused Hadumana was also held guilty of the offence u/sec. 342 IPC but he has preferred no appeal.
(2.) THE facts necessary to be noticed for the disposal of this appeal briefly stated are: that prosecutrix Kumari Sita went to purchase sugar at about 7 or 7. 30 P. M. to the shop of one Pukhraj Mahajan on 3/11/85 in village Bhavrani. After purchasing the sugar and Tobacco, when she was returning back to her home and came on the way near 'panchoda Ki seri' she met Kapura & Hadumana who induced her to accompany them and when they reached near the house of Kapura, she was forced inside the house of Kapura and was asked to marry Kapura. Mst, Sita refused to marry Kapura and raised hue and cry whereupon these two accused alongwith one lady Leela gave beating to her and Hadumana told Kapura that she will not agree willingly and so he must rape her. On hearing her cries, one Mangal Singh Rajput who was going on the way, went inside the house of Kapura and told him not to marry the girl forcibly against her will. When Mangal Singh asked Kapura not to marry her, he threatened Mangal Singh with knife injuries whereupon Mangal Singh came out. When Mst. Sita did not return home in reasonable time, her father Sona and her aunt Smt. Bhanwari went in search of her. Mangal Singh met them and informed about this incident. In the mean while, it is alleged that Kapura raped Mst. Sita and when these persons went to the house of Kapura alongwith other persons of the village, Mst. Sita was turned out of the house at about 8. 30 P. M. THE matter was reported to the police on the next day at about 8 P. M. THE written report of the incident was lodged which has been marked Ex. P. 2. Mst. Sita was got examined for her age and evidence of rape. THE Doctor has opined that she was 15 years old at the time of the incident and she has been raped forcibly. After usual investigation, the case against the accused was challaned in the Court of learned CJM Jalore from where it was committed for trial to the Court of learned Sessions Judge, Jalore, who after holding the trial, convicted and sentenced the accused appellants as aforesaid and hence this appeal. Mr. Kumbhat, learned Amicus-curiae appearing for the accused appellant has not challenged the conviction of the accused appellant recorded u/sec. 376, 342 IPC. I feel that he has rightly done so. It has come in the evidence of Pukhraj that Mst. Sita came to his shop on 3. 11. 85 and purchased half kilo of sugar and some Tobacco. Mst. Sita has stated that after purchasing the sugar and tobacco, when she was returning back to her house, accused Hadumana and Kapura met her in the way near Panchoda Ki Seri. Mst. Leela also met her at that place and told her that she should accompany her to see the 'odni' of Leela but when she came to his house, Kapura forcibly took her in his house and there she was asked to forcibly marry Kapura and when she declined to marry with him, she was forcibly raped. She has told this incident to her aunt Smt. Bhanwari P. W. 3 who fully supports the testimony of Mst Sita. P. W. 4 Sona is the father of the prosecutrix and he too has supported the testimony given by Smt. Bhanwari. P. W. Mangal Singh has stated that when he heard the cries of Mst. Sita, he went inside the house of Kapura and saw that Kapura was holding the hand of Mst. Sita and Hadumana was holding her mouth tight by pressing it. When he asked as to what they were doing, Kapura told him that he has performed his marriage with Sita. Mangal Singh told him that marriages are not performed like this, whereupon Kapura told him to go away as it is their inter-nal affair. He was further threatened that if he does not go, his nose will be cut. He further told him that he has gone to Jail several times and he does not care for all this and thus Mangal Singh came out and when he reached near Hanu-manji Ki Chabutari he met Sona & Smt. Bhanwari and told them about the incident. P. W. 7 Doctor Guman Mal Solanki has opined that on the basis of the X-ray findings, the age of Mst. Sita was found to be 15 years at the time of the incident and P. W. . 8 Dr. K. N. Mathur has stated that accused Kapura is fit to commit sexual inter-course with anybody. Dr. Hanuman Dutt has examined Mst. Sita and he found injuries on her back, one on the left side of her nose and four injuries on her left cheek. Her hymen was found torn and there was swelling on Libia Majora and Libia Mynora and the hymen was found in the healing process. This clearly supports the testimony of Sita that she has been forcibly raped and prior to this rape, she was a virgin. In view of this testimony, the learned lower Court was perfectly justified in holding the accused appellant guilty of the offence u/sec. 376 and 342 IPC. Mr. Kumbhat next submitted that lenient view may be taken so far as sentence is concerned. This is a case where accused has tried to forcibly marry a girl, who was 20 years younger to his in age and when she refused to marry him, after she was forcibly taken inside his house, he committed a rape with her. So much so, on intervention of Mangal Singh also, he did not desist or refrain from him criminal design. Ordinarily, such person does not deserve any sympathy or indulgence from the Court but looking to the fact that Mst. Sita has now been married as admitted by her as also by Sona, father of Mst. Sita, I deem it proper to reduce the sentence of the accused appellant recorded u/sec 376. IPC from 7 years R. I. to 4 years R. I together with a fine of Rs, 100/- this sentence recorded u/sec. 342 IPC by the learned trial court is maintained. In the result, I partially accept this appeal, the conviction of accused appellant Kapura u/sec. 376 and 342 IPC is maintained. His sentence recorded by the learned Sessions Judge, Jalore u/sec. 342 is also maintained but the sent-ence of 7 years R. I. together with a fine Rs. 100/- awarded to him for the offence u/sec. 376 IPC is reduced to 4 years R. I. together with a fine of Rs. 100/- and in default to undergo R. I. for a period of 1 month. Both the substantive sentences shall run concurrently. The learned Special Judge is directed to send the revised warrant of arrest to the Jail authorities for necessary action. .;