S.P. Pathak, J. - (1.) THESE two criminal appeals under Section 374(2) of the Code of Criminal Procedure have been filed against the judgment and order dt. 27.11.2002 passed by the learned Additional District and Sessions Judge (Fast Track), Jaipur District Jaipur in Sessions Case No. 139/2001 (116/1998) whereby appellants Gajendra @ Rocky and Surendra @ Palli have been convicted and sentenced as under: Gajendra @ Rocky Under Section 376(2)(g) IPC : 10 years rigorous imprisonment and a fine of Rs. 5,000/ -. Under Section 376 IPC : 7 years rigorous imprisonment and a fine of Rs. 2,000/ -. Under Section 366A IPC : 10 years rigorous imprisonment and a fine of Rs. 2,000/ -. Under Section 323 IPC : acquitted Surendra @ Palli Under Section 376(2)g IPC : 10 years rigorous imprisonment and a fine of Rs. 5,000/ -. Under Section 366A IPC : 10 years rigorous imprisonment and a fine of Rs. 2,000/ -.
(2.) IN default of payment each of the appellant was directed to undergo one year imprisonment. Since both the appeals arise out of same judgment of conviction and order of sentence, therefore, they are being decided together.
(3.) BRIEFLY stated the facts are that the prosecutrix (name with held) lodged a written report Ex. P -1 in the Police Station Phulera accompanied with her mother Mayarani and maternal -grand -mother Smt. Gulab Devi stating therein that she was living along with her mother in Ilahi Manzil Kasba. There was nobody in the family except her mother in the house. On 02.07.1998, at about 1.00 p.m. during noon, when her mother was sleeping in the house, she went outside the house to ease herself, there she found Rocky son of Yatish brahmin standing who caught hold of her and thereafter took her in his room and closed the doors. Accused Rocky thereafter removed all clothes from her body and committed rape with her. It is also alleged by the prosecutrix that prior to this incident of 02.07.1998, on 01.07.1998 at 2.00 p.m. in the noon while she was sleeping in the house, Rocky called her outside the house and thereafter accused Rocky took her to his house and after removing her clothes committed rape with her. At that time accused Surendra @ Palli was also there. Both of them threatened her not to disclose the incident to anybody, failing which her mother would be killed. On this report, FIR No. 97/1998 was registered in the Police Station under Section 366A, 376 and 387 IPC and investigation commenced. During the course of investigation, statements of witnesses were recorded. Site was inspected and inspection report Ex.P -5 was prepared. The prosecutrix was medically examined and in this regard medical report for the purpose of rape was prepared as Ex.P -6. For age estimation, X -ray was taken. The age estimation report Ex.P -7 after examination was prepared. Vaginal swab of the prosecutrix was taken. Cloths of the prosecutrix were also seized and sent for examination in the FSL but no FSL report has been produced. The accused were arrested. After completion of investigation, charge -sheet was filed before the Civil Judge (J.D.) and Judicial Magistrate, Sambher district Jaipur and the case was committed to the Court of Sessions and ultimately came for trial before the Additional District and Sessions Judge (Fast Track) Jaipur district Jaipur. On hearing arguments on charge against the accused -appellant Surendra @ Palli charge under Section 376(2)(g) and 366A was framed and against Gajendra @ Rocky charge under Section 376(2)(g), 376, 365 and 366A was framed on 28.04.2001. Both the accused denied the charge and claimed trial. In support of its case, prosecution examined PW -1 Smt. Maya who is the mother of the prosecutrix. PW -2 Smt. Gulab Devi who is maternal grand -mother of the prosecutrix. PW -3 is the prosecutrix. PW -4 is Abdul Latif who was examined in relation to site plan Ex.P -5. He has denied his signatures on Ex.P -5. PW -5 is Shri Ram. He has been declared hostile by the prosecution, therefore, his evidence is of no help to the prosecution. PW -6 is Harish Kamra. He has also been declared hostile. His statement as a whole is of no help to the prosecution. PW -7 is Ramesh Chand. He has proved the arrest memo Ex.P -11 of accused Gajendra @ Rocky and the arrest memo Ex.P -12 of accused Surendra @ Palli. PW -8 is Baluram Choudhary, Constable at the relevant time in the Police Station Phulera. He was examined in relation to seizure of a diary, purse, photo and some letters. He has also prepared site plan Ex.P -14. PW -9 is Dr. Anjali Agrawal. She has examined the prosecutrix and found no injury, tenderness or redness on the private part of the prosecutrix. She also did not find any injury on the person of the prosecutrix and she also took vaginal swab. PW -10 is Dr. Saroj Kumar Mishra. He has examined the accused appellants in relation to their potency and found that both the accused appellants were competent to perform sexual act. PW -11 is Govind Singh, constable. He was also examined in relation to seizure made of purse etc. vide Ex.P -13 and P -14. PW -12 Motilal is the investigation officer. PW -13 Laxmi Narain has been declared hostile. He has denied his signatures on inspection note Ex.P -5. PW -14 is Dr. G.C. Mathur. He has prepared X -ray report Ex.P -15 and the X -ray plate Ex.P -19. After close of the prosecution evidence, statement of the accused appellants under Section 313 Cr.P.C. were recorded by the trial Court to explain the circumstances appearing against them. Both the accused appellants stated that they have been falsely implicated in the case. On hearing final submissions, learned trial Court convicted and sentenced the accused appellants as stated here -in -above. Hence, the present appeals have been filed.;