JOGI DAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal has been filed by the accused appellants against the judgment and order dated 28-5-1987 passed by the learned Sessions Judge, Jalore in Sessions Case No. 58/1986 by which he convicted the accused appellants for the offence under Sections 376(2) (g) and 342, IPC and sentenced them in the following manner : Name of Convicted Sentence awaraccused under Sec- ded to each acappellants tion cused appellant

(2.) It arises in the following circumstances: On 2-10-1986 at about 11.00 pm. PW-3 Panku wife of Moolchand (PW-4) (hereinafter referred to as the prosecutrix) lodged a written report Ex.P/8 with the Police Station Jalore before PW-5 Chaunaram, SHO of that Police Station stating inter alia that she was not having parents nor brothers and sisters and since childhood she was living with her Mama Hamira and she was married with Mool Chand, PW-4 about 3 years back and for the last one and half years, she was living with her husband PW-4 Moolchand in village Gol in a rented house and she was having a kirana shop in Gol. It was further stated in the report Ex. P/8 by the prosecutrix that on the last Sunday at about 3.00 pm. she left her house for the purpose of satisfying nature's call and when she was returning back to her house, PW-1 Kamla followed her and asked her to help in lifting the Tagari and upon which, first she refused but later on, she agreed and then she followed PW-1 Kamla and thus, she reached the Bera of accused appellant Jogl Dan, where other three accused persons, namely, Phoolchand, Shankaria and Baga Ram were also there and all the four accused appellants were taking drink and seeing, them, she tried to run away, but PW-1 Kamla cried and asked the accused appellants to catch-hold the prosecutrix and then all the accused appellants came there and they lifted her and gauged her mouth by lungi and thereafter, PW-1 Kamla left that place. It was further stated in the report Ex. P/8 by the prosecutrix that thereafter, all the accused appellants committed rape with her one by one against her will and she pushed them by her legs and fist, but they caught hold her and forcibly committed rape with her. It was further stated in the report Ex. P/8 by the prosecutrix that she made hue and cry and 2-3 persons, who were doing the job of mason, came there and seeing them, the accused appellants after leaving her ran away. It was further stated in the report Ex.P/8 by the prosecutrix that she returned home having tears in her eyes and told the whole incident to her husband PW-4 Moolchand, but her husband PW-4 Moolchand, because of fear and pressure, did not lodge the report. Therefore, she had come to lodge the report on 2-10-1986. On this report Ex. P/8, police registered the case for the offence under Section 376, IPC and started investigation. During investigation, the accused appellants Jogi Dan, Phoolchand, Baga Ram and Shankaria were got arrested on 3-10-1986 through arrest memos Ex.P/3, Ex. P/4, Ex.P/t and Ex.P/6 respectively. The prosecutrix PW-3 Panku was also got medically examined and her medical examination report is Ex. P/7, which was got admitted by the counsel for the accused appellants during the course of trial and therefore, concerned doctor was not examined. After usual investigation, police submitted challan for the offence under Sections 376 and 342, IPC against the accused appellants in the Court of Magistrate and from where, the case was committed to the Court of Session. On 27-10-1986, the learned Sessions Judge, Jalore framed the charges for the offence under Sections 376(2) (g) and 342, IPC against the accused appellants. The charges were read bver and explained to the accused appellants, who pleaded not guilty and claimed trial. During trial, the prosecutrix got examined as many as 5 witnesses and exhibited several documents. Thereafter, the statements of the accused appellants under Section 313, Cri.P.C. were recorded. In defence, two witnesses were produced by the accused appellants. After conclusion of trial, the learned Sessions Judge, Jalore through judgment and order dated 28-5-1987 convicted the accused appellants for the offence under Section 376(2)(g) and 342, IPC and sentenced them in the manner as stated above holding inter alia :

(3.) In this appeal, the following submissions have been made by the learned counsel appearing for the accused appellants :