KAMAL SINGH & ORS. Vs. STATE OF RAJ.

JUDGEMENT

(1.) This appeal is directed against the judgment dated 9.8.79 and the sentence passed on 10.8.79 by the learned Addl. Sessions Judge No. 1, Alwar. Out of the three accused-appellants, Jasram has expired. Accused Kamal Singh has been convicted under and sentenced to 3 years' rigorous imprisonment and a fine of Rs. 1000.00. In default of payment of fine to further undergo 6 months' rigorous imprisonment. Under Sec. 342 Penal Code he has been further convicted and sentenced to 3 months rigorous imprisonment and under section 120B Penal Code to 1 year's rigorous imprisonment and to pay a fine of Rs. 500.00. Deceased Jasram, appellant, was only convicted under section 120B Penal Code and sentenced to 1 year's rigorous imprisonment and a fine of Rs. 500.00. In default of payment of fine to further undergo rigorous imprisonment for 3 months. Accused-appellant Radhey Shyam has been convicted under sec. 376 Penal Code and sentenced to 3 years' rigorous imprisonment and to pay a fine of Rs. 1,000.00. In default of payment of fine to further undergo 6 months' rigorous imprisonment.

(2.) The prosecution story unfolded during the trial is that Kumari Neelam lodged the FIR on 14th Sept. 1976 at Police Station, Alwar. In the FIR Ex. P. 16, it has been mentioned that accused-appellant Radhey Shyam and Kamal Singh committed rape with her on 9th Sept. 1976 and 10th Sept. 1976. There is an allegation that Kamal Singh and the prosecutrix were exchanging love letters prior to the occurrence. There is a further allegation that accused Jasram told her that she should accompany her and he will arrange the return of the letters addressed to Kamal Singh. Under the impression that Jasram will succeed in the matter of love letters, she went at the residence of Kamal Singh and it is said that Kamal Singh committed the rape and some photographs were taken by the accused Radhey Shyam when Kamal Singh was committing rape with her. She went on that day at her house but kept mum. On the next day she stated that she had been at the Studio of Radhey Shyam accused. Radhey Shyam accused told her that come inside and assured he will return the photos and the negatives. She further states that she paid Rs. 20.00 to Radhey Shyam and went inside the Studio in a separate room. There is an allegation that on 10th Sept. 1976 Radhey Shyam committed the rape with her in the Studio and did not return the photos and the negatives which were taken a day earlier. She has further stated that she informed about the incidents to Kishan Lal, PW 3, who is the friend of his brother. She has further stated that the FIR was lodged on 14th Sept. because her father was not at Alwar. Learned counsel for the accused-appellants has assailed the judgment on the following grounds:-

(3.) It is an admitted position that she was not minor according to the medical opinion and she was of about 18 years of age.