MANGALIYA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) These appeals has been filed against a judgment dated 2/4/2003 of the learned Additional Sessions Judge. (Fast Track) Pratapgarh by which the appellant has been found guilty for the offence punishable under Section 376, of the IPC. He has been awarded rigorous imprisonment for seven years and a fine of Rs. 5,000/and for non-payment of fine, simple imprisonment for six months has been ordered. The case was listed on an application for suspension of sentence but since the record has been received, the appeal has been heard on merits finally.

(2.) First the facts Smt. Kurt (PW 1), on 7/7/2000 at 8.45 p.m., lodged a typed report Ex. p ii at police station, Arnod. According to the report she had gone to collect firewood on 5/7/2000 in the jungle of the village where she was forcibly ravished by the accused. Further, it was stated that on the next day i.e. 6/7/2000, after evening while she was sleeping in her house the accused again came and had forcible sexual intercourse with her. During the act she raised hue and cry and hearing her cries the members of her family as well as other villagers came on the spot and the accused was caught by them and thereafter the accused was thrashed by the villagers. According to the FIR earlier many a times on previous occasions Smt. Kurt was raped by the accused. According to the report the, bicycle, Pagadi, Lathi and Dhariya belonging to the accused were still lying other house. A case under Section 376 of the IPC was registered at police station Arnod. The statement of Smt. Kuri was recorded under Section 161 of the Cr. P.C. on 7/7/2000 itself wherein she stated that on 5/7/2000 the accused made a proposal for sex to which she replied that if her brother-In-law comes to know about the same. In will be enraged to which the accused plied that he will take care of the same. Thereafter, the sexual inter course took place. She further stated that some two months prior to that also the accused had sex with her in her house and the fact was discovered by her brother-in-law Ramchandra (PW-4) on account of which she received a beating at the hands of Ramchandra. Regarding tile alleged incident dated 6/7/2000, she stated that though the accused came to her house but on account of arrival of her son Kana, nothing happened and the accused was caught by the villagers. At the request of the Investigating officer the statement of Smt. Kuri was also recorded under Section 164 of the Cr. P.C. on 4/8/2000 wherein she neither alleged in respect of any rape on 5/7/2000 nor on 6/7/2000. Still the challan was filed and the accused was put to trial. The accused pleaded not guilty to the charge. Fifteen witnesses were examined by the prosecution in support of its story. No defence evidence was led. The learned trial court heard the arguments and delivered the judgment on 2/4/2003 as indicated above. According to the charge, which was framed on 25/1/2003, the accused was charged 191 committing rape on two occasions. The first charge pertained to the incident dated 5/7/2000 when the accused allegedly committed rape at about 2 p.m. in the Jungle of the village. Further charge was to the effect that the accused committed rape allegedly on, 6/7 /2000 after the evening in the house of the prosecutrix. Regarding both the events the accused has been found guilty.

(3.) I have heard the learned counsel for the appellant as well as learned Public Prosecutor for the State and I have gone through the record of the trial court. find that the appeal deserves to the allowed.