SHANKERIA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment dated 30.7.1981 passed by the learned Sessions Judge, Jalore, convicting the appellant for the offence under Sec. 376 Penal Code and sentencing him to five years rigorous imprisonment and to pay a fine of Rs. two hundred and in default of payment to further undergo five months' rigorous imprisonment.

(2.) The prosecution case is that on 22.12.1980, PW 5 Surta lodged an FIR at Police Station Jalore, stating that on 21.12.1980, his niece Miss Tulchhi aged ten years had gone for grazing the cattle. She was accompanied by her younger sister Laju, Asia and Pankhi. It is alleged that in the afternoon, accused Shankeriya approached the prosecutrix Miss Tulchhi and asked her to accompany. It is further alleged that the accused Shankeriya lifted her "Ghaghra'' and committed rape on her. Hearing the cries of Mst. Tulchhi, her other companions reached on the spot. Seeing them, accused Shankeriya ran away. Thereafter, they all returned to the house. Mst. Tulchhi reported the incident to her mother. On this information, police registered a case for the offence under Section 376 Penal Code and proceeded with investigation. After usual investigation, police filed a challan against the appellant for the offence under Secs. 376 and 354 IPC. The learned trial Judge relying on the testimony of PW 1 Mst. Tulchhi and PW 3 Asia, corroborated by medical evidence, convicted the appellant and sentenced him as stated above.

(3.) It is contended by Mr. Doongar Singh, learned counsel appearing for the appellant, that the prosecution witnesses viz.; PW 1, PW 2 and PW 4 are related tc each other and the very eye witnesses have admitted the presence of PW 8. Toliya and PW 12 Pankhi, who have not supported these witnesses. It is further submitted that one set of eye witnesses have contradicted the other set of eye witnesses. It is also elicited in the cross examination that Mst. Tulchhi was earlier engaged with accused Shankeriya, on that account, the relations between the two families had become strained. Learned counsel appearing for the appellant has also read the statement of PW 11 Dr. Rajendra Prasadi Purohit and contended that the prosecution has failed to establish that the rape was committed on Mst. Tulchhi. It is submitted that in any case, it cannot be a case beyond attempt to rape punishable under Sec. 376/511 IPC.