BHANWARIA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) These three appeals are directed against the common Judgment rendered by the learned Additional Sessions Judge No. 1, Jodhpur dated 2-12-1989, whereby, the accused-appellant Bhanwariya son of Phoosaram was held guilty of the offences under Ss. 376(2)(g) and 411, IPC and he was sentenced to life imprisonment together with a fine of Rs. 1000.00 and in default of payment of fine, to further undergo rigorous imprisonment for one year for the offence under Section 376(2)(g), lPC; and one year's rigorous imprisonment together with a fine of Rs. I00.00 and in default, to further undergo rigorous imprisonment for one month for the offence under Section 411, IPC. The accused-appellants Bhanwariya son of Surjaram and Mangilal were also held guilty of the offence under Section 376(2)(g), IPC and they were sentenced to ten years rigorous imprisonment together with a fine of Rs. 1,000.00 and in default, to further undergo rigorous imprisonment for one year. The accused-appellant Gutiya alias Bhutiya alias Devaram was held guilty of the offences under Sections 376(2)(g), and S. 41 I, IPC and was sentenced to imprisonment for life together with a fine of Rs.1,000.00 and in default, to further undergo rigorous imprisonment for one year for the offence under Section 376(2)(g), IPC and one year's rigorous imprisonment together with a fine of Rs. 100.00 and in default, to further undergo one month's rigorous imprisonment for the offence under Section 411, IPC. The accused appellant Sriram was also held guilty of the offence under Sections 376(2)(g) and 379, IPC and was sentenced to imprisonment for life together with a fine of Rs. 1000.00 and in default, to further undergo rigorous imprisonment for one year for the offence under Section 376(2)(g), IPC and two years rigorous imprisonment together with a fine of Rs. 500.00 and in default, to further undergo six month's rigorous imprisonment for the offence under Section 379, IPC. The sentences awarded to accused-appellants Bhanwariya son of Phoosaram, Gutiya alias Bhutiya alias Devaram and Sriram on both the counts were ordered to be run concurrently. On recovery of the amount of fine, the Prosecutrix Mst. Gajaraki and Laharaki were ordered to be paid Rs.2250.00 each as compensation.

(2.) It was further ordered that out of the recovered golden ornaments, the golden Kanthi (Art. 8) be returned back to Mst. Gajaraki and all the three silver ornaments Arts.l4, 15 and 16 were ordered to be returned back to Mst. Laharaki and the recovered clothes and pieces of bangles were ordered to be destroyed after the period of appeal is over.

(3.) The facts necessary to be noticed for the disposal of this appeal briefly stated are: that both the prosecutrix i.e. P.W.2 Mst. Gajaraki wife of P.W.I Poonaram and P.W.4 Mst. Laharki wife of Gokalram belong to village Finch situated near village Satlana. P.W. 1 Poonaram and Gokalram are the real brothers. Poonaram is the elder brother of Gokalram. They are sons of Rattaram and Loombaram is the real brother of Rattaram. It is alleged that on 18-3-1987, P. W. 1 Poonaram and his uncle Loombaram went to get their Messey Fergusson tractor repaired at Jodhpur. They started from village Finch at about 7 a.m. on 18-3-1987 i.e. after three days of Holi. It is further alleged that when Poonaram and Loombaram started for Jodhpur for getting repaired their tractor, P.W. 1 Poonaram asked his wife Mst. Gajaraki and his younger brother's wife Mst. Laharaki to go to their well to look after the crop. Thus, at about 8 a.m. these two ladies started from their village Finch. Mst. Gajaraki had her son in her lap and Mst. Laharaki was carrying a she-calf with her. When they reached near the pond of their village, the she-calf got herself released from the hold of Mst. Laharaki and went into the herd of cows, whereupon, it is alleged that Sanwariya caught hold of her she-calf, brought it back to Mrs. Laharaki and enquired from these ladies, where they were going? It is further alleged that at that time, accused-appellants Bhanwariya son of Phoosaram, Bhanwariya son of Surjaram, Gutiya alias Bhutiya alais Devaram, Nangilal and Sriram were sitting on the bank of the village Pond. It may be stated here that initially, these ladies were not knowing the name of accused Sriram. It is further alleged that when these ladies reached near the boundary of village Satlana, all the five accused-appellants i.e. Bhanwariya son of Phoosara, Bhanwariya son of Surjaram, Gutiya alias Deveram, Mangiram and Sriram came there armed with lathies and knives and tried to block their way, whereupon, they took the side way but after some distance, it is alleged that all these accused-persons put off their Dhoties under a Khejri tree and also put their weapons there and became naked. They again tried to block the way of these two ladies, whereupon they came to know about their wrong intention and Mst. Gajaraki caught hold of a branch of a Aakara tree to save her honour but that was of no avail. It is further alleged that Bhanwariya son of Phoosaram snatched the she-calf from the hands of Mrs. Laharaki and tied it to a Khejri tree and accused Mangilal snatched the child from the lap of Mst. Gajaraki and threw it away. All these accused-persons scuffled with these two ladies. lt is alleged that accused Bhanwariya son of Surjaram, Bhanwariya son of Surjaram, Mangilal and Gutiya alias Devaram availed Mst. Gajaraki and accused Sriram availed Mst. Laharaki. They tried to tear their clothes and fell them down. These two ladies resisted their attempts in which their clothes were torn. Ultimately, they over powered Mst. Gajaraki. It is alleged that one more person joined them after 15-20 minutes and that person aged about 20-25 years was also belonging to village Finch and he helped accused Sriram in falling down Mst Laharaki. Thereafter, it is alleged that Bhanwariya son of Phoosaram and Gutiya alias Bhutiya alias Devaram caught hold of Mst. Gajaraki and Bhanwariya alias Sarjaram and Mangial went towards Mst. Laharaki because she could not be over-powered by accused Sriram and his companion i.e. the 6th man, who came to the place of occurrence after about l5-20 minutes. The story regarding reaching of this 6th man at the place of the occurrence and helping accused Sriram has been abandoned by the prosecution witnesses at the trial. Be that as it may, it is alleged that accused Bhanwariya alias Surjaram, Mangilal and Sriram succeeded in felling down Mst. Laharaki and her clothes were torn by them. It is alleged that Mst. Gajaraki was first raped by accused Gutiya alias Bhutiya alias Devaram. After commission of rape, accused Gutiya alias Bhutiya alias Devaram caught hold of the neck of Mst. Gajaraki and accused Bhanwariya son of Phoosaram committed rape with Mst. Gajaraki. Mst. Laharaki was raped by accused Bhanwariys son of Surjaram, Sriram and Mangilal. Thereafter, it is alleged that accused Bhanwariya son of Surjaram came towards Mst. Gajaraki and caught hold of her neck and accused Bhanwariya son of Phoosaram and Gutiya alias Bhutiya alias Devaram went towards Mst. Laharaki and committed rape with Mst. Laharaki. These ladies cried for help but no body came to rescue them and they were not allowed to move from the place where they were fell down. It is alleged that in the scuffle, their bangles were broken and those pieces of bangles were recovered from the place of occurrence. where these ladies were raped.