GHANSHYAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) These two appeals are directed against the common judgment dated 25.1.2007 passed by learned Special Judge Atrocities on Women and Dowry Cases Kota in Sessions Case No. 18/2006 whereby, both the accused-appellants-Ghanshyam @ Ghansu and Vishal @ Babu were convicted for offence u/S. 376(2)(G) IPC and sentenced to life imprisonment with fine of Rs. 5000/- and in default of payment of fine, they were required to further undergo simple imprisonment of two months, convicted for offence u/S. 366 IPC and sentenced to rigorous imprisonment of five years with fine of Rs. 2000/- and in default of payment of fine, they were required to further undergo simple imprisonment of one month and convicted for offence u/S. 342 IPC and sentenced to rigorous imprisonment of one year with fine of Rs. 1000/- and in default of payment of fine, they were required to further undergo simple imprisonment of fifteen days. Accused-appellant Ghanshyam @ Ghansu was additionally convicted for offence u/S. 4/25 of the Arms Act and sentenced to rigorous imprisonment of two years with fine of Rs. 2000/- and in default of payment of fine, he was required to further undergo simple imprisonment of one month. All the sentences were directed to run concurrently. The first information report bearing No. 84/2006 was registered with Police Station Mahaveer Nagar, Kota for offence u/Ss. 365(6), 342 and 34 IPC on 8.3.2006 on the basis of parcha bayan of Kumari Chandrakala, aged 20 years recorded at 1.40 PM in M.B.S. Hospital, Kota about the incident which allegedly took place at 6.00 PM on 7.3.2006. In the parcha bayan, it was alleged that in the evening of 7.3.2006 at 6.00 p.m., when she was returning from House No. 1-G-21, Mahavir Nagar-III of her grand-mother, two persons met her in front of the street adjacent to the house of her grand-mother's house of her grand-mother's house on the motorcycle. One person asked her to sit on the motorcycle, but she refused. However, they forcibly took her on their motorcycle to a room situated in the park of Vigyan Nagar. One person in the room took off her clothes and committed rape upon her Thereafter, second accused person also committed rape upon her. These person threatened her not to tell anybody about the incident; otherwise they would kill her. Thereafter, one person accompanied her towards Talwandi. It was alleged that they were also seen by a Chowkidar present there. At Talwandi Circle, she was paid Rs. 15/- to go to her house in an auto rickshaw. When she sat in the auto rickshaw then, driver demanded Rs. 50/-. Since she had no money, she got down from his auto rickshaw. Then, another auto rickshaw driver left her in front of MBS Hospital in his auto rickshaw. There, she narrated the entire incident to the doctors, who got her admitted in the hospital. It was alleged that two persons committed rape upon her. It was also mentioned in the parcha bayan that she did not receive any injury. The police after investigation arrested the accused-appellants Ghanshyam @ Ghansu and Vishal @ Babu. On completion of investigation, challan was filed against them for offence u/S. 365, 376(2)(g) and 342/34 of IPC. Charges against them were framed for the aforesaid offence as also for the offence u/S. 4/25 of the Arms Act. The accused denied the charges and claimed to be tried. The prosecution produced as many as 18 witnesses and exhibited 36 documents. Defence produced 6 witnesses and also exhibited 5 documents. On conclusion of the trial, the trial court convicted and sentenced the accused-appellants in the manner as indicated above.

(2.) We have heard Smt. Kamla Jain, learned counsel for accused-appellant Ghanshyam @ Ghansu in appeal No. 423/07 and Shri Surendra Sharma, learned counsel for accused-appellant Vishal @ Babu in appeal No. 464/07 and Shri Javed Choudhary, learned Public Prosecutor for the State.

(3.) Smt. Kamla Jain and Shri Surendra Sharma, learned counsel for the accused-appellants argued that it was a case of consent and the accused-appellants have been falsely implicated on allegation of rape. The prosecutrix is a major girl of 20 years of age. Dr. Ashok Mundra (PW 3), who subjected the prosecutrix to medical examination has proved the medical examination report Ex. P8, according to which hymen was turn with old tear and admitting one finger easily. Though the FIR was registered on the basis of parcha bayan, but in fact, information received by the police earlier point of time was entered in rojnamcha rapat No. 541 at 12.35 AM on 8.5.2006. The information was given by one Rajendra, Constable to the police alleging that prosecutrix was abducted by 5-6 persons and they committed rape upon her at Vigyan Nagar and that she was admitted to the hospital due to excessive bleeding and presently was on bed No. 19. Learned counsel submitted that if the prosecutrix knew the appellants, there was no reason why she could not disclose their names to the Constable Rajendra, whose information was entered in the rojnamcha. The fact that reference to 5-6 persons was made in the entry made in the rojnamcha clearly show that in fact rape was committed by some other accused and accused-appellants have been falsely implicated only because those accused have not been apprehended by the police.