SUBHASH KOLI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment dated 25.6.94 passed by the Additional Sessions Judge No. 3, Kota, by which the learned Additional Sessions Judge convicted the appellant for the offences under Sections 363,366 and 376 Indian Penal Code and sentenced him to undergo rigorous imprisonment for three years and a fine of Rs. 1000.00 and in default of payment of fine further to undergo six months' rigorous imprisonment for the offence under Sec. 363 Indian Penal Code; five years' rigorous imprisonment and a fine of Rs. 1000.00 and in default of payment of fine further to undergo one year's rigorous imprisonment for the offence under Sec. 366 Indian Penal Code and seven years' rigorous imprisonment and a fine of Rs. 2,000.00 and in default of payment of fine further to undergo one year's rigorous imprisonment for the offence under Sec. 376 Indian Penal Code. All the substantive sentences were ordered to run concurrently. The learned Additional Sessions Judge, also, observed that the period of detention undergone by the accused-appellant shall be set-off against the term of imprisonment undergone by the accused-appellant during investigation, enquiry or trial.

(2.) Accused-appellant Subhash Koli was tried by the learned Additional Sessions Judge for the offences under Sections 363, 366 and 376 Indian Penal Code. The case of the prosecution is that he kidnapped Pushpa Bai, aged about 15 years, from the lawful guardianship of her parents and committed rape upon her. The prosecution, in support of its case, examined ten witnesses. The accused-appellant did not examine any witness in his defence. The learned trial Court, after trial, convicted and sentenced the appellant, as stated above. It is against this judgment dated 25.5.1994 passed by the learned Additional Sessions Judge that the appellant has preferred this appeal.

(3.) The nature of the evidence, produced by the prosecution, consists of the evidence of PW 1 Narain Lal - the father of the prosecutrix. He has stated that his daughter Pushpa Bai, at the relevant time, was aged about 13 years when accused Subhash Koli forcibly taken her on the knife-point. According to him, before taking Pushpa Bai with him, the accused-appellant gave two slaps to his son Peeru Singh who was, also, with Pushpa. Peeru returned to the house and informed them that accused Subhash Koli had taken Pushpa and it was only on the asking of Peeru that they came to know regarding the kidnapping of Pushpa by the accused and thereafter the report of the incident was lodged with the police. After recovery, Pushpa Bai was given to his custody. This evidence of PW 1 Narain Lal is sought to be corroborated by the evidence of Smt. Jatan Bai (PW 2) - the mother of the prosecutrix, whose statement is similar to the statement of PW 1 Narain Lal. She, also, has stated that Pushpi Bai was aged about 13 years and she had gone to clear the call of the nature alongwith her brother Peeru Singh, wherefrom she was taken away by the accused-appellant after giving two slaps to Peeru. PW 4 Gordhan is the maternal uncle of Pushpa Bai, who has, also stated that the prosecutrix was taken by the accused and he lodged the First Information Report at the Police Station. PW 3 Peeru is the real brother of the prosecutrix who was aged about 8 years at the relevant time. He had gone with Pushpa to clear the call of nature and according to him, near the public latrines, the accused took away his sister Pushpa forcibly after giving two-three slaps to him. PW 5 Pushpa Bai is the prosecutrix in this case. She has stated that on the date of the incident, at about 3.00 p.m., she had gone alongwith her brother Peeru to clear the call of the nature in the public latrines. According to her, she went inside the public latrines while her brother Peeru remained standing outside. The accused came there, gave two-three slaps to Peeru who cries and when she came out from the latrine, the accused put a hand-kerchief on her mouth and forcibly put two tablets in her mouth, due to which she became unconscious and when she regained consciousness, she found herself in a room which was latched from inside. According to her, it was 7.30 p.m. at that time. According to her, the accused threatened her with the dire consequence if she would cry and thereafter the accused took her towards Soyabeen Factory, where he asked her to put off her clothes, upon which she put off her clothes and thereafter the accused, also, put off his clothes and committed rape upon her. After committing rape, both of them put-on their clothes and came on foot to Talora, where she sat down near the bus stand and the accused went away to take betel. The accused took ticket for her and she boarded the bus while the accused remained there. From Talora she came to Bundi and therefrom to Kota and left the bus at Ashram Circle, from where was taken to the Police Station. In the cross-examination she has admitted that she herself put off her clothes and lie down on the ground. She has, also, admitted that from Kesharpura she went with the accused in a Maruti car and got down at Balakund and in Balakund they stayed in a room for sometime and she slept alongwith the accused in the room but in that room they were wearing the clothes. Thereafter from Balakund they went towards the side of Soyabeen factory. Certain persons met them in the way. In the Soyabeen factory, the accused asked her to put off her clothes, she put off her clothes and the accused, after putting off his clothes, committed rape upon her. She has, also, admitted that when the accused was putting-off his clothes, at that time he was not having any weapon with him. She has, also, admitted that she did not raise or create any obstruction or resistance while the accused was having sexual intercourse with her and she has also, admitted that from Soyabeen factory they went to village Talora on foot and took their meals in a hotel. Certain persons were sitting there but she did not narrate the incident to anyone of them. From Talora they came on foot to the village but the name of that village is not known to her but there were tempos and buses and it was a bus stand. From there the accused took two tickets for Bundi and reached there at 7.30 p.m. from Bundi, she went to Kota. PW 6 Jata Shanker and PW 9 Mishri Lal Goswami are the two police constables, in whose presence the prosecutrix was recovered. PW 7 Prem Shanker is the Constable, who took the sealed packets of the incriminating articles for F.S.L. examination to the State Forensic Science Laboratory, Jaipur and deposited the same there. PW 8 Dr. Prakash Sharma was the Medical Jurist, who medically examined the prosecutrix as well as the accused and has stated that there were no injuries found on the person or private parts of the victim and no opinion regarding commission of rape can be given. However, the vaginal swab and smear were taken but the report of the swab has not been produced by the prosecution. He has, also, opined that the age of Pushpa Bai was in between 15 to 17 years. PW 10 Ghasi Lal is the Assistant Sub-Inspector of Police, who conducted the investigation and presented the challan.