The consistent testimonies of the prosecutrix, medical evidence, and the heinous nature of the crime were crucial in upholding the conviction of the accused.

JUDGMENT/ORDER :

Pushpendra Singh Bhati, J.

1. This criminal appeal under Section 374(2) Cr.P.C. has been preferred against the judgment dated 29.09.1995 passed by learned Additional District & Sessions Judge, Churu ('trial court') in Sessions Case No. 89/1993, whereby the accused-appellant was convicted for the offence under Section 376(2)(G) of the IPC and sentenced to undergo ten years rigorous imprisonment and a fine of Rs. 100/-, in default of payment of which, he was to undergo further fifteen days rigorous imprisonment.

2. Brief facts of this case, as noticed by this Court, are that on 03.07.1993, one Gulab (complainant) lodged a verbal report before the Police Station Sardarshahar against the present accused-appellant-Mahaveer, alongwith two others namely, Debu and Ganesh, to the effect that on 02.07.1993 in the morning, while he went to his field, situated within the boundary of Naharsara, his daughter (aged 13 years on that date) and his brother's (Mamraj) daughter (aged 11 years on that date) alongwith one child Krishan also came to the field; in the afternoon on the same day, he told them to go back home and they all went accordingly; while the complainant stayed there to look after the other side of the field.

2.1. As per the report, while he was returning from the field, while crossing Naharsara Village at about 06:30 p.m. on 02.07.1993 itself, he saw the accused persons, coming bare feet, from the opposite side, and at that time, one Imarta was also accompanying the accused persons; the complainant tried to talk to them, but the accused persons did not respond. It was further reported that on the same day, after sunset, when he reached the village, he heard the hue and cries coming from his and his brother (Mamraj's) house. Upon being asked by the complainant, he was told that the accused, namely, Mahaveer, Debu and Ganesh, subjected both the prosecutrix to forcible sexual intercourse; at that time, the apparels of prosecutrix were stained with blood; the same narration of the incident in question was reiterated by son (Krishan) of Mamraj (brother of the complainant).

2.2. However, since there was no conveyance facility available at the village in the night, therefore, the aforementioned report was submitted before the police station on the next day (03.07.1993) of the incident alleged to have occurred on 02.07.1993.

2.3. On the basis of the aforementioned report, a case under Section 376 IPC was registered at Police Station, Sardarshahar and the investigation commenced; after investigation, charge-sheet for the said offence was filed against the accused, namely, Mahaveer (present accused-appellant) and Debu before the learned Munsiff & Judicial Magistrate, Sardarshahar; against accused Ganesh, looking into his juvenility, a separate charge-sheet against him for the aforementioned offence was submitted as per the provisions of the Juvenile Justice Act.

2.4. However, owing to the nature of the alleged offence under Section 376 IPC, the learned Magistrate committed the case for trial to the learned Sessions Court, qua accused-Mahaveer and Debu, from where the case was transferred to the learned Additional District & Sessions Judge, Churu ('trial court') for the necessary trial and adjudication.

2.5. The accused persons denied the charges, and claimed trial. After conclusion of the trial, the learned trial court, vide the impugned judgment dated 29.09.1995, though acquitted accused-Debu @ Deba of the offence under Section 376 IPC while extending him the benefit of doubt, but the present accused-appellant Mahaveer was convicted for the offence under Section 376(2)(G) IPC, and sentenced as above.

3. Learned counsel for the accused-appellant, at the outset itself, tried to strike at the substratum of the prosecution case, while submitting that the prosecution case is based on surmises, conjectures and assumptions, which is apparent on the face of the record, to the effect that the necessary identification of the accused was no