Mahesh Chandra Sharma, J. - (1.) THE appellants Hariram and Bhoorya @ Ramesh Chand have filed this appeal against the judgment dated July 23, 2003 of Additional Sessions Judge, (Fast Track) No. 2 Baran in Sessions Case No. 91 of 2003 whereby the accused appellants have been convicted for the offence under section 376 IPC and sentenced for 10 years RI with a fine of Rs/ 500-500 each and in default of payment of fine they have been directed to suffer further one month S.I. By the order of this court dated Feb. 10, 2004, the sentence of appellant Bhooriya @ Ramesh Chand was suspended during the pendency of this appeal.
(2.) BRIEF facts of the case are that on August 5, 1998 complainant Kailash Bai appeared before the Police Station Mothpur and lodged report Ex. P.2. In the report it was alleged that in the morning when she was going to Beshar Gaon for giving respect to Khinchi Maharaj and on returning back five persons near Doonger Ki Doli met her. She gave description of all these five persons. When she reached near Mines of Badhora at about 4 p.m. one person wearing Dhoti and Green Baniyan raped her. Another person wearing black bushirt also raped her. On this report FIR No. 128/98 was registered for the offence under sections 342, 376/34 IPC. On the request of SHO, the Judicial Magistrate Chhipabarod on August 20, 1998 recorded the statements of Kailsh Bai (prosecutrix) and one Dhoolilal, who was one of the five persons whose descriptions were given by Kailash Bai, under section 164 Cr.P.C. In her statement the prosecutrix taken the names of the accused appellants Hariram and Bhootia (actual name is Bhooriya). Dhoolilal taken the names of appellants who committed rape on Kailash Bai. Identification parade was also done. In the identification parade the prosecutrix identified Hariram accused appellant. After investigation the police filed challan against the accused appellants for offence under sections 376 and 504/34 IPC. The trial court framed charge against the accused appellants for offence under section 376 IPC. The accused appellants denied the charge and claimed to be tried. The prosecution in support of its case recorded statements of 15 witnesses and exhibited several documents. The statements of accused appellants under section 313 Cr.P.C. were recorded. No witness was produced in defence. After hearing arguments of both the sides, the trial court convicted the accused appellants for the offence under section 376 IPC and sentenced for 10 years RI and fine of Rs. 500-500 each and in default one month SI vide judgment dated July 23, 2003. Mr. B.M. Sharma, learned counsel appearing for the appellants argued that the trial court convicted the accused appellants without considering the material available on record. The alleged incident of rape occurred on August 4, 1998 at 4.00 p.m. while the prosecutrix lodged the report of the incident on August 5, 1998 at 6. 00 p.m. No satisfactory explanation has been given for the inordinate delay of about 26 hours in lodging the report. There are discrepancies in FIR, statement of prosecutrix under section 164 Cr.P.C. and in the statement recorded before the court on the point as to who committed rape first with the prosecutrix and how many times. The prosecutrix in her court statement stated that Dhoolia committed rape with her, but she pointed out towards Bhooria who was present in court. The prosecutrix stated that she could not identify Dhoolia in identification parade as he was wearing different clothes at that time. The learned counsel submitted that identifying accused in court for first time has no legal evidence value. The prosecutrix knew the name of Hariram at the time of incident, but she had not mentioned his name in the FIR, which creates a great suspicious on the thoughtfulness of prosecution story. Dr. J.P. Yadav (PW.10) in his statement stated that no such injury or abrasison was found on the body of the accused appellants. No bruise or abrasions were found on the back of the prosecutrix, while the prosecutrix mentioned that the place where rape was committed with her was a rough and hard surface. In the FSL report no semen was detected in the vegina. The age of prosecutrix is 40 years and the appellants are teenageers. From the medical report it is clear that no injury was found either on prosecutrix body or on appellants body. This fact reveals that no such struggle was made by the prosecutrix from restraining the appellants from committing rape with her. In support of his contentions, the learned counsel for the appellants relied upon the cases reported in State of Rajasthan vs. Mahendra Singh and others (RLR 2002 (1) page 113), Papuriya @ Rajesh vs State (1995 Cr. L.R. (Raj.) 258), State of Raj. vs. Babu 1986 Cr.L.R. (Raj.) 277 and Sujan Singh vs. State (1991 RCC 159). The learned Public Prosecutor on the other hand supported the judgment of conviction and argued that it is a gang rape. The trial court rightly convicted the accused appellants. The findings arrived at by the trial court are just and proper. The trial court critically examined the material available on record and judgment of conviction is based on evidence and the accused appellants have been rightly convicted and sentenced. "I have heard the learned counsel for the parties and gone through the entire record. Before proceeding further it is necessary to have a look at the evidence produced by the prosecution before the trial court." PW.1 Devlal in his statement only stated about the good character of Kailash Bai (prosecutrix). He stated that he has no knowledge about the incident happened with Kailash Bai. PW.2 Sheokaran was declared hostile. PW.3 Ramesh son of Balchand stated that he was one of them when Kailash Bai met them in the forest. The other persons were Dhulya, Bhuriya, Hariram and Kalu. All of them used to go in the forest grazing their cattles. PW.4 Kailash Bai (prosecutrix) stated about the rape done on her by the accused appellants. PW.5 Devkaran stated about the Ex.P.4 Map prepared by the police in his presence and he has put his signatures A to B. Ex.P.5 and Ex. P.6 were the recovery memos of Pettikot and Blouse of Kailash Bai. He put his signatures A to B on Ex. P.5 and Ex. P.6. PW.6 Jagdish Prasad is also witness of Ex.P.4, Ex. P.5 and Ex. P.6 where he has put his signatures C to D. PW.7 Yamkumar, Head Constable stated about the deposit of Packets in the Malkhana and thereafter handing over the same to Jamil Ahmed for sending the same to FSL. PW.8 Dhoolilal son of Gangaram was declared hostile. It is submitted that statement of Dhoolilal was recorded under section 161 Cr.P.c. before the police and before the Judicial Magistrate Chhipabarod under section 164 Cr.P.c. In his statement under section 161 and under Section 164 Cr.P.C. he has implicated both the accused appellants. In his statement under section 164 Cr.P.C. he has stated that he has seen both the accused appellants committing rape on Kailash Bai. PW.9 Jamil Ahmed stated about the handing over of sealed packets to FSL. PW.10 Dr. Jai Prakash Yadav stated about the sexual capability of accused appellants Hariram and Bhooriya @ Ramesh and he stated that both of them were capable of doing sexual intercourse. PW.11 Makbool Mohammed, ASI proved Ex. P.2 report lodged by Kailash Bai. He also proved the thumb impression of Kailash Bai on FIR. He also stated about the statements of kailash Bai recorded under section 164 Cr.P.C. and thereafter filing of challan before the court. PW.12 Kalulal was declared hostile. PW.13 Tarun kant Somani, SI, supported the investigation done by him in the case. PW.14 Dr. N.D. Hirani stated about the medical examination of Kailash Bai and stated that she was having abrasion on her chest. He has also stated about forceful rape on Kailash Bai. PW.15 Nand kishore Karnani, ACJM, stated about the statements recorded by him under section 164 Cr.P.c. and the test identification parade done by him in Jail. He stated that while recording statements under section 164 Cr.P.c. he has given sufficient time to the witnesses and thereafter their statements were recorded. Smt. Kailash Bai only identified Hariram in the test identification parade. Extracted portion of the statement of Kailash Bai, in the trial court and under section 164 Cr.P.C. before the Judicial Magistrate and statement of Dhoolilal before the Judicial Magistrate under section 164 Cr.P.C. implicating the accused appellants read as under : (before trial court ) ...[VERNACULAR TEXT OMITTED]... (before Judicial Magistrate u/s.164 Cr.P.C.) ...[VERNACULAR TEXT OMITTED]... (before Judicial Magistrate u/s. 164 Cr. P.C.) ...[VERNACULAR TEXT OMITTED]... In FSL report dated August 18, 2000 it was stated that Human semen was detected on exhibit No.1 (from packet marked A-1) Petticoat. In the injury report of Kailash Bai following injuries were found : 1. Abrasion 2 x cmn. On Rt. Breast with blood clot. 2. Bruise with Resish 2 x1 cm. Left Breast just medial with Bluish about 24 hours. In the injury report the doctor given the opinion that she has passed suggestive for forceful intercourse sexual with external injury about 24 hrs. old. So rape could not be denied.
(3.) THE alleged incident of rape occurred on August 4, 1998 at 4.00 p.m. while the prosecutrix lodged the report of the incident on August 5, 1998 at 6. 00 p.m. THE prosecutrix in her statement stated that she immediately reached the police station and narrated the incident. Thus the FIR was drawn without any delay. THEre is no such discrepancy either in the FIR, or in the statement recorded under section 164 Cr.P.C. or in the statement recorded before the court of the prosecutrix regarding rape committed by the accused appellants. THE prosecutrix in her court statement stated that Dhoolia committed rape with her, but she pointed out towards Bhooria who was present in court. She explained in her statement that the rape was committed by Bhooria but she could not identify Bhooriya in identification parade as he was wearing different clothes at that time. Both the accused appellants were named in the statement under section 164 Cr.P.C. of prosecutrix and in the statement of Dhoolilal under section 164 Cr.P.C.. Thus even if during identification if accused Bhooria was not identified makes no difference as she has stated in her statement before the court that as he was wearing different clothes she could not identify him. THE prosecutrix was not knowing the accused appellants by name and that is why she has not mentioned the names of the accused appellants in the FIR, and hence it could not be a suspicious on the thoughtfulness of prosecution story. Dr. J.P. Yadav (PW.10) in his statement stated that no such injury or abrasion was found on the body of the accused appellants. THE doctor has opined in his statement that forceful sexual was done on the prosecutrix. In the FSL report semen was detected on the Petticot. THE age of prosecutrix was given by the doctor as 25 years and the appellants were near to 19-20 and 25-26 years and they were capable of doing sexual intercourse. In the struggle the prosecutrix received injuries and thus it cannot be said that with her consent the accused appellants did intercourse. Thus the arguments raised by the counsel for the accused appellants cannot be accepted. It is a clear case of forceful intercourse with the prosecutrix by the accused appellants. THE cases relied on by the learned counsel for the appellants have already been dealt with in detail in the findings given by the trial court. I am in agreement with the findings given by the trial court. From the above, it is clear that forceful sexual intercourse was done on Kailash Bai by the accused appellants, which is corroborated by the medical evidence, FSL report and the statement of the prosecutrix in court and the statements under section 164 Cr.P.C. recorded by the Judicial Magistrate of Kailash Bai and Dhulilal who has stated that he has seen both the accused appellants committing rape on Kailash Bai. It is true that Dhoolilal has not supported the prosecution case in court and he was declared hostile. The findings recorded by the trial court cannot be said to be perverse and I am in agreement with the findings recorded by the trial court. The accused appellants committed rape on the prosecutrix and thus the prosecution has been able to prove the case beyond reasonable doubt against the accused appellants. The accused appellants have been rightly convicted by the trial court. But looking to the age of the accused appellants I am of the opinion that the ends of justice would be met in case the accused appellants are sentenced to 7 years rigorous imprisonment instead of 10 years. For the foregoing reasons the appeal is partly allowed and the judgment of the trial court is modified as indicated below : (i) The conviction of the accused appellants under section 376 IPC is confirmed. (ii) The sentence of accused appellants is reduced to 7 years instead of 10 years with fine of Rs. 500/- each and in default of fine they shall suffer one month SI. (iii) The accused appellant Bhooriya @ Ramesh is on bail, he shall be taken in custody forthwith for serving out the remaining sentence. (iv) The State Government is directed to consider the case of the accused appellants under Section 432 Cr.P.C. for granting them the benefit of remission in accordance with law. The judgment of the trial court is modified to the extent indicated above. ;