SUBHASH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE appellant Subhash has been convicted under Section 376 IPC and sentenced to four years r.i. and a fine of Rs. 400/ - by the learned Sessions Judge, Banswara by his judgment dated 13 -6 -1986. He has come up in appeal.

(2.) THE facts giving rise to this appeal may be briefly stated here. Smt. Antar aged about 19 years in the second wife on one Nathu. Her husband is employed at Mahi Dam where as she used to live in her village Hariyapada. It is alleged that on 19 -4 -1985 she came to the village Kutumbi in order to take a bus to Mahi Dam via Banswara. She boarded a bus of which one Lala, co -accused was the cleaner (some time called conductor also) at Kutumbi and reached Banswara. She was made to get down at Banswara in the market and was not taken to the bus stand from where she was to get another bus for Mahi Dam. She however, managed to reach the bus stand at Banswara. There she found that the bus for Mahi Dam had already left. She, therefore, came back to the place where the same bus in which she had come from Kutumbi was standing and the cleaner Lala co -accused told her that it was going back to Kutumbi. She therefore, boarded that bus. The bus left for Kutumbi but there was a break down on the way near Sehman bridge. Thereafter when the bus was repaired it went upto Nayala from where it turned back and came to Banswara. At Banswara Smt. Antar was asked to get down from the bus. She resisted saying that there was no place for her to stay in the night and, therefore she would spend the night in the bus itself. The cleaner Lala did not allow her to stay in the bus and threatened her that if she did not get down from the bus, she would be taken to the Kotwali. It is further alleged that thereupon Smt. Antar was forcibly taken down from the bus by Lala and Lala then summoned a tempo of which one Jahur was the driver. Four or five persons were already sitting in the tempo Jahur brought the tempo and Lala forced Smt. Antar to enter the tempo saying that she was being taken to the Kotwali, Lala also came inside the tempo. She was threatened to keep quiet at the point of knife. Lala had asked another co -accused Munshi who was in the tempo to get the knife. It is further alleged that her eyes were closed by some person and some other person gagged her mouth. She was carried to a tank known as Daylab There tempo was left and she was made to walk to the nearby mango tree. According to the prosecution there Lala called Subhash who is alleged to have forcibly raped her. After finishing Subhash called Munshi who also raped her. Then Munshi called Dadu and he also raped her. Later Dadu called Mehmood and he also did the same. The driver Jahur was then called by Mehmood but he refused to have intercourse with Smt. Antar and then Lala had forcible intercourse with her without her consent. After all these persons had thus committed rape on her, the persons other than Lala and Subhash left the place in the tempo. Lala and Subhash stayed back and Smt. Antar kept lying at the place wheret he had been raped. It is also alleged that Lala and Subhash wanted to place a stone on her mouth but she told them not to do so telling them that she would not recognise them at any place latter. The Lala and Subhash left. Smt. Antar followed them. While they were thus coming back they came across three constables. On seeing them Smt. Antar told these constables to arrest Lala and Subhash as they had raped her whereupon the constables arrested both of them. They and Smt. Antar were brought to the police Station, Banswara where Smt. Antar lodged the first Information Report involving the accused Lala, Subhash, Munshi, Mehboob Khan, Ansar Ahmed, Dadu and Jahur. After the investigations the police put up a challan against the accused persons. They were committed to the court of Sessions where Jahur was discharged and the remaining five were charged with Section 376 IPC. They pleaded not guilty and were tried. At the trial the learned Sessions Judge found that the evidence of Smt. Antar regarding rape was coroborated by the medical evidence and, therefore, it was established that she had been raped but on the question as to who out of the six accused had raped her, he found that the identity of the accused other than Lala and Subhash was not satisfactorily established. He, therefore, acquitted the other accused but convicted aad sentenced Lala and Subhash as aforesaid.

(3.) I have heard the learned Counsel for the appellant and the learned P.P. and have gone through the record.