ASHOK KUMAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The accused - appellants have preferred this appeal under Section 374 Cr.P.C. against the judgment of conviction dated 10.11.2006 and order of sentence dated 15.11.2006 passed by Additional Sessions Judge, Neem Ka Thana (District Sikar) in Sessions Case No. 05/2006 whereby the appellants have been convicted for offence under Section 376(2) (g) IPC and each of them has been sentenced for rigorous imprisonment for 10 years with a fine of Rs. 10,000/- and in default thereof to further undergo rigorous imprisonment for one year. It was also ordered that out of amount of fine Rs. 15,000/- may be paid to the prosecutrix as compensation. The brief relevant facts for the disposal of this appeal are that complainant- PW1 Shri Raju, elder brother of prosecutrix, submitted a written report Ex. P1 on 14.01.2006 before Dy.S.P. Neem Ka Thana alleging therein that his sister the prosecutrix is a student of Class-VI and on 13.01.2006 at 10.00 A.M. when she was going to her school in the way the appellants forcefully took her in the house of one Shri Birbal son of Shri Malaram Balai and the appellant Ashok committed rape upon her, whereas appellant - Dilip Kumar locked the house from outside. It was further stated in the report that when in the interval his sister did not return from school for taking her meals and upon inquiry being made, it was revealed that she did not attend the school on that day and thereafter she was found in the house of Birbal where the crime was committed. Upon the written report, the Dy. S.P. directed the SHO Police Station Patan. to register a case and FIR No. 7/2006 for offences under Section 376, 342 and 120-B IPC was registered against the appellants at Police Station Patan on 14.01.2006 at 6.30 P.M. and after usual investigation charge sheet was filed against the appellants. The learned trial court framed charge under Section 376 (2) (g) IPC against each of the appellants to the effect that on 13.01.2006 at 10.00 A.M. in village Raipur Patan the appellants in furtherance of their common intention took the prosecutrix aged 12 years and 7 months in the house of one Shri Birbal and there the appellant Ashok Kumar committed rape upon her whereas the appellant - Dilip Kumar locked the house from outside. To prove the charge the prosecution produced oral as well as documentary evidence whereas each of the appellants in his statement under Section.313 Cr.P.C. denied the allegation and evidence produced on behalf of the prosecution and specifically stated that there was previous intimacy between the appellant - Ashok Kumar and the prosecutrix and she used to write love letters to appellant - Ashok Kumar and by that reason the family members of the prosecutrix were annoyed and she was scolded several times by that reason and the appellants have been falsely implicated. The appellant - Dilip Kumar further stated that there Was a dispute regarding' Bada' and by that reason also he has been falsely implicated whereas he neither caught hold of the prosecutrix nor he locked the house from outside. In their defence, the appellants produced DW1 - Pawan, DW2 - Smt. Murti and DW3 - Shri Banshidhar and also produced documentary evidence.

(2.) The learned trial court after appreciating and evaluating the evidence available on record and hearing both the parties by passing the impugned judgment and order convicted and sentenced the appellants as aforesaid. Hence, the instant appeal.

(3.) The learned trial court arrived at a conclusion that on the date, time and place as alleged by the prosecution sexual intercourse took place between the appellant - Ashok Kumar and prosecutrix but the prosecutrix was consenting party to it but as she was below the age of 16 years at the time of incident, her consent is irrelevant and thus, the intercourse between her and appellant - Ashok Kumar comes within the purview of rape within the meaning of Section 375 IPC. It was also held that the appellant - Dilip Kumar was also involved in the incident and although, he did not commit rape upon the prosecutrix but the offence was committed in furtherance of common intention of both the appellants each of them is guilty for offence under Section 376(2)(g) IPC.