HARIRAM AND ANS Vs. STATE

JUDGEMENT

(1.) THE appellants Hariram and Bhoorya @ Ramesh Chand have filed this appeal against the judgment dated July 23, 2003 of Additional Sessions Judge, (Fast Track) No. 2 Baran in Sessions Case No. 91 of 2003 whereby the accused appellants have been convicted for the offence under section 376 IPC and sentenced for 10 years RI with a fine of Rs/ 500-500 each and in default of payment of fine they have been directed to suffer further one month S.I. By the order of this court dated Feb. 10, 2004, the sentence of appellant Bhooriya @ Ramesh Chand was suspended during the pendency of this appeal.

(2.) BRIEF facts of the case are that on August 5, 1998 complainant Kailash Bai appeared before the Police Station Mothpur and lodged report Ex. P.2. In the report it was alleged that in the morning when she was going to Beshar Gaon for giving respect to Khinchi Maharaj and on returning back five persons near Doonger Ki Doli met her. She gave description of all these five persons. When she reached near Mines of Badhora at about 4 p.m. one person wearing Dhoti and Green Baniyan raped her. Another person wearing black bushirt also raped her. On this report FIR No. 128/98 was registered for the offence under sections 342, 376/34 IPC. On the request of SHO, the Judicial Magistrate Chhipabarod on August 20, 1998 recorded the statements of Kailsh Bai (prosecutrix) and one Dhoolilal, who was one of the five persons whose descriptions were given by Kailash Bai, under section 164 Cr.P.C. In her statement the prosecutrix taken the names of the accused appellants Hariram and Bhootia (actual name is Bhooriya). Dhoolilal taken the names of appellants who committed rape on Kailash Bai. Identification parade was also done. In the identification parade the prosecutrix identified Hariram accused appellant. After investigation the police filed challan against the accused appellants for offence under sections 376 and 504/34 IPC. The trial court framed charge against the accused appellants for offence under section 376 IPC. The accused appellants denied the charge and claimed to be tried.

(3.) THE alleged incident of rape occurred on August 4, 1998 at 4.00 p.m. while the prosecutrix lodged the report of the incident on August 5, 1998 at 6. 00 p.m. THE prosecutrix in her statement stated that she immediately reached the police station and narrated the incident. Thus the FIR was drawn without any delay. THEre is no such discrepancy either in the FIR, or in the statement recorded under section 164 Cr.P.C. or in the statement recorded before the court of the prosecutrix regarding rape committed by the accused appellants. THE prosecutrix in her court statement stated that Dhoolia committed rape with her, but she pointed out towards Bhooria who was present in court. She explained in her statement that the rape was committed by Bhooria but she could not identify Bhooriya in identification parade as he was wearing different clothes at that time. Both the accused appellants were named in the statement under section 164 Cr.P.C. of prosecutrix and in the statement of Dhoolilal under section 164 Cr.P.C.. Thus even if during identification if accused Bhooria was not identified makes no difference as she has stated in her statement before the court that as he was wearing different clothes she could not identify him. THE prosecutrix was not knowing the accused appellants by name and that is why she has not mentioned the names of the accused appellants in the FIR, and hence it could not be a suspicious on the thoughtfulness of prosecution story. Dr. J.P. Yadav (PW.10) in his statement stated that no such injury or abrasion was found on the body of the accused appellants. THE doctor has opined in his statement that forceful sexual was done on the prosecutrix. In the FSL report semen was detected on the Petticot. THE age of prosecutrix was given by the doctor as 25 years and the appellants were near to 19-20 and 25-26 years and they were capable of doing sexual intercourse. In the struggle the prosecutrix received injuries and thus it cannot be said that with her consent the accused appellants did intercourse. Thus the arguments raised by the counsel for the accused appellants cannot be accepted. It is a clear case of forceful intercourse with the prosecutrix by the accused appellants. THE cases relied on by the learned counsel for the appellants have already been dealt with in detail in the findings given by the trial court. I am in agreement with the findings given by the trial court.