JUDGMENT :

1. In the wake of instant surge in COVID – 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned.

2. This criminal appeal under Section 374(2) Cr.P.C. has been preferred against the judgment and order dated 21.08.1993 passed by learned Additional District & Sessions Judge, Nimbahera in Sessions Case No.112/92, whereby though the accused-appellant was acquitted of the offence under Section 392 IPC, but was convicted for the offence under Sections 366 & 376 IPC; for the offence under Section 366 IPC, he was sentenced to undergo three years rigorous imprisonment and a fine of Rs.500/-, in default of payment of which, he was ordered to undergo further three months imprisonment and; for the offence under Section 376 IPC, he was sentenced to undergo seven years rigorous imprisonment and a fine of Rs.1000/-, in default of payment of which, he was ordered to undergo further six months imprisonment.

3. Learned counsel for the accused-appellant submits that on 31.05.1992, complainant-Kamla (prosecutrix) verbally informed the Police Station, Nimbahera that the present accused-appellant was her uncle (mausa). The prosecutrix also alleged that she used to accompany his aunt (Mausi) (Ghisi w/o accused Nathu) to the mines (khadaan), where they used to work as labour (hammalli); her aunt also used to take her to the house of the accused, very often. It was also alleged that 3-3½ months preceding the date of the information to the police, the aunt asked the prosecutrix to stay at her house, keeping in view the midnight hours and on the pretext that the mausa (present accused) was away due to some work. Thereafter, the accused-appellant returned back, and after some time, when the prosecutrix fell asleep at the house of her aunt, the accused-appellant covered her mouth and committed forcible sexual intercourse with the prosecutrix; it was further alleged that not only this, upon coming to know about the incident, her aunt restrained the prosecutrix from reporting the matter to her parents on the ground, amongst others, that if it is so done, the reputation of the family of the prosecutrix would be at stake.

4. Learned counsel for the accused-appellant also submits that on the basis of the aforementioned report, a case was registered against the accused persons (Nathu and his wife Ghisi) for the offences under Sections 366, 376 and 392 IPC at Police Station, Nimbahera; after investigation, a charge-sheet was filed before the learned trial court against the accused persons. Learned counsel further submits that thereafter, the charges were framed by the learned trial court against the accused persons for the aforesaid offences as well as under Section 363 IPC, as also against one Shanker Rao for the offence under Section 414 IPC.

5. Learned counsel however, submits that vide the impugned judgment and order, accused Ghisi wife of the present accused, on count of her being a lady, was convicted only for the offence under Section 366 IPC and was sentenced to undergo 15 months imprisonment and a fine of Rs.250/-, in default of payment of which, she was ordered to undergo further two months imprisonment; while Shanker Rao was acquitted of the charges levelled against him; the present accused-appellant though was acquitted of the charge under Section 392 IPC, but was convicted under Sections 366 & 376 IPC and sentenced as above. Learned counsel further submits that the sentence awarded to the accused-appellant was however, suspended by this Hon’ble Court vide order dated 28.10.1993 passed in S.B. Cr. Misc. Bail/Suspension of Sentence Petition No.342/1993.

6. Learned counsel for the accused-appellant also submits that the allegation levelled by the prosecutrix against the appellant that he took the prosecutrix to watch a movie without her free consent and will; it was also alleged that the prosecutrix thereafter, was forcibly taken t