MAHVEER Vs. STATE

JUDGEMENT

(1.) This criminal appeal under Sec. 374(2) Cr.P.C. has been preferred against the judgment dtd. 29/9/1995 passed by learned Additional District and Sessions Judge, Churu ('trial court') in Sessions Case No. 89/1993, whereby the accused-appellant was convicted for the offence under Sec. 376(2)(G) of the IPC and sentenced to undergo ten years rigorous imprisonment and a fine of Rs.100.00, in default of payment of which, he was to undergo further fifteen days rigorous imprisonment.

(2.) Brief facts of this case, as noticed by this Court, are that on 3/7/1993, one Gulab (complainant) lodged a verbal report before the Police Station Sardarshahar against the present accused-appellant-Mahaveer, alongwith two others namely, Debu and Ganesh, to the effect that on 2/7/1993 in the morning, while he went to his field, situated within the boundary of Naharsara, his daughter (aged 13 years on that date) and his brother's (Mamraj) daughter (aged 11 years on that date) alongwith one child Krishan also came to the field; in the afternoon on the same day, he told them to go back home and they all went accordingly; while the complainant stayed there to look after the other side of the field.

(3.) Learned counsel for the accused-appellant, at the outset itself, tried to strike at the substratum of the prosecution case, while submitting that the prosecution case is based on surmises, conjectures and assumptions, which is apparent on the face of the record, to the effect that the necessary identification of the accused was not made on the spot, nor the prosecution witnesses were known to the accused-appellant prior to the alleged incident in question, and nor such occasion for having acquaintances ever arose. As per learned counsel, on that count alone, even if it is assumed that the alleged incident of forcible sexual intercourse with both the prosecutrix had occurred, no role can be attributed to the accused-appellant; this is more so when there is no incriminating evidence has been placed on record by the prosecution before the learned trial court. Thus, as per learned counsel, the present case is clearly fabricated as a case of gang rape, so as to make wrongful and false implication of the accused-appellant.