LAXMI NARAYAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is an appeal filed by Laxmi Narayan alias Laxman and Mst. Sayari against the judgment of the Assistant Sessions Judge, Pali, dated Jan 22, 1974, by which the two appellants were convicted and sentenced to imprisonment and fine as follows: Laxmi Narayan under Section 366, IPC Rigorous imprisonment for six years and a fine of Rs. 100/ -, in default 1 month's further R.I. under Section 376, IPC Rigorous imprisonment for 8 years and a fine of Rs. 100/ -, in default 1 month's further R.I. Both the sentences, however, were ordered to run corcurrently. Safari under Section 368, IPC Rigorous imprisonment for 5 years and a fine of Rs. 100/ -, in default 1 month's further R.I.

(2.) THE prosecution case against both the appellants was as follows : Mst. Sushila, a minor girl, used to live with her parents in the first floor of quarter No. 98, situated within the precincts of the Meel Chali Mohalla, Pali. Laxmi Narayan appellant also lived in the ground floor of the same quarter. On April 3, 1973, at about 3 p.m. Mst. Sushila was all one in her quarter. Her father had gone for work to the Mill while her mother was discharging her duties as a Nurse in Bangur Hospital, Pali. Her brother also had gone to attend his classes in the College. At that time Mst. Dhagalai, sister of Laxmi Narayan appellant, visited Sushila Devi and informed that her mother met an accident. On hearing the news, Sushila came down -stairs to go to the place of accident. As soon as she came down, she found Laxmi Narayan appellant standing there. Laxmi Narayan asked her to sit on his bicycle so that she might be taken to her mother without loss of time. Sushila Devi sat on the carrier of the bicycle and Laxmi Narayan took her towards labour colony. Mst. Sushila was unwilling, in the 1st instance, to go towards the labour colony, but when she was informed by Laxmi Narayan that her mother had met an accident in the said colony, she raised no objection. In the labour colony Sushila Devi was taken to the house of Mst. Sayari, wherein she was detained in a locked room. The appellant held out threats to her that in case she raised a hue and cry, she would be done away with Mst. Sushila kept quiet in the room out of fear. In the evening the appellant opened the room and asked Sushila to take in liquor. Sushila refused to drink the wine, but she was forced by Laxmi Narayan to take it. As soon as she took the liquor, she felt giddiness and Laxmi Narayan appellant then committed rape on her despite her resistance. Mst. Sushila was kept confined in the room through out the night. On the next day in the morning, Laxmi Narayan appellant gave her a 'Sari' of blue colour to wear on her body. Sushila wore the 'Sari' out of fear and thereafter she was taken to the courts where her signatures were obtained on a paper. From the court she was brought back to the house of Mst. Sayari and kept confined in the room. In the night she was again raped by Laxmi Narayan appellant. On April 5, 1973, while she was sitting in the house of Mst. Sayari along with the appellant, her brother Vasudeo accompanied by Badri Kalal and Atma Singh came there all of a sudden and took her to the house of her parents. In the way she related to them the whole of the incident. Latter on, her brother took her to the police station, Pali for making a report of the occurrence. At police station Pali, Mst. Sushila Devi lodged a verbal report with the Station House Officer, on the basis of which a criminal case under Sections 366, 376 and 342, IPC was registered the very day, i.e. on 5 -4 -1973. The Station House Officer made usual investigation into the case and arrested the appellant. After his arrest, Laxmi Narayan appellant gave an information to the Station House Officer that he find given a blue coloured 'Sari' to one Mishri Lal and that he was prepared to get it recovered from the latter. The Station House Officer recorded the above information and thereafter recovered a blue coloured 'Saree' from Mishri Lal The 'Saree' so recovered was put up for identification in a test -parade and it was correctly identified by Sushila Devi to be the same 'Sari' which she was asked by the appellant to wear on her body. After collecting other necessary evidence in the case, the Station House Officer filed a charge sheet against both the appellants and Mst. Dhaglai in the court of the Munsiff and Judicial Magistrate, pali, under Sections 366, 376 and 368, I.P.C. The Munsiff and Judicial Magistrate, upon finding a prima facie case exclusively triable by the Court of Sessions, committed the accused persons to the court of the Sessions Judge, Pali, for trial for the aforesaid offences. The Sessions Judge, Pali, transferred the case to the court of the Assistant Sessions Judge, Pali, for trial in accordance with law. The Assistant Sessions Judge tried the accused persons and found Laxmi Narayan appellant guilty of the charges under Sections 366 and 376, I.P.C. Mst. Sayari was found guilty by him under Section 368, IPC only while no charge was held to be proved against Mst. Dhaglai. The Assistant Sessions Judge, therefore acquitted Mst. Dhaglia of the charge under Section 366, IPC, and convicted and sentenced the two appellants in the manner stated above. Aggrieved by their conviction and sentences, the two appellants have come up in appeal to this Court.

(3.) ANOTHER contention put forward by the learned Counsel for appellants is that the prosecution could not adduce positive proof about the age of the girl, although the burden of proving that Sushila Devi was below the age specified in Section 361, IPC was on the prosecution. It was further urged that it is highly doubtful whether Sushila Devi was below 18 years of age at the time when the offence was alleged to have been committed by the two appellants. The above contention also is devoid of substance. Babu Lal, father of Sushila Devi, stated in his cross -examination that he was married to the mother of Sushila in the year 1945 or 1946. Two or two and half years after his marriage, his wife gave birth to a daughter. Then a son was born after two or two and a half years of the birth of the daughter. After an interval of two or two and a half years, his wife gave birth to another son and then after a gap of two or two and a half years, Sushila was born. Similar is the evidence of Mst. Laxmi Devi, mother of Mst. Sushila, who also stated in her deposition that Sushila was born about 8 or 10 years of her marriage which was celebrated in the year 1946. The evidence of the girl's father and the mother relating to the age of their daughter is wholly unsatisfactory aad so it cannot be the basis for determination of correct age of Mst. Sushila Devi The parents of the girl could not make a positive statement about the age of their daughter. They even could not state in which year and on which date their marriage was performed and their sons and daughters were born after the marriage Consequently, the evidence of the parents is not at alt helpful far determination of the correct age of Sushila.