FOTA AND DAMRA Vs. STATE

JUDGEMENT

(1.) Through this appeal under Sec. 374(2), Cr. P.C. Fota and Damra have called in question the judgment dt. 23-3-98 passed by the learned Addl. Sessions Judge, Barmer whereby he convicted Fota under Sec. 376, IPC and sentenced him to undergo R.I. for five years and pay a fine of Rs. 1,000/-, and Damra u/S. 376/34, IPC and u/S. 25(1-B) of the Arms Act and sentenced him to five years R. I. and a fine of Rs. 1,000/- under the first count, and one year R. I. and a fine of Rs. 100/- under the second count.

(2.) The case relates to an occurrence which is said to have taken place on 5-8-97 at 3 p.m. in village Dhanau, 30 kms. away from Police Station Chauhatan. The prosecution case is that Kumari 'B' (name withheld by me) (PW 12) was returning to her house from the flour mill along with Rama (PW 13) when the two accused met her and dragged her to some distance. It is alleged that she was raped by Fota and accused Damra remained standing having a gun in his hand. The victim reported the matter to her mother and father and other persons whereupon report Ex. P-4 was lodged on the next day at 5 p.m. After the registration of the case, the police inspected the site, interrogated the witnesses and arrested the accused. The prosecutrix was medically examined by Dr. K. C. Chopra, P.W.1, Dr. Anil Kumar Goyal, P.W. 14 and Dr. Saroj Choudhary, PW 15. After the accused were arrested, weapons were recovered at their instance. On the completion of the investigation a challan was filed.

(3.) Learned Addl. Sessions Judge framed a charge u/S. 376, IPC against Fota and charges u/S. 376/34, IPC and u/S. 25(1-B) of the Arms Act against Damra. Both the accused pleaded not guilty. The prosecution examined as many as 21 witnesses. Accused in their statements u/S. 313 Cr. P.C. denied accusation. They led no evidence in defence. After hearing the learned counsel for the parties, the Addl. Sessions Judge found the charges proved. He, therefore, convicted and sentenced them as stated above.