Judgment:
Jas Raj Chopra, J.
1. These two appeals No. 132/78 filed by Kale Khan and the other No. 99/1978 filed by Sher Singh are directed against the judgment of learned District and Sessions Judge, Jalore, dated 16-2-1978 whereby the learned lower court held both the accused-appellants guilty of the offences under Sections 376-511 IPC read with Section 34 IPC as also under Sections 327/34 and Section 323 IPC and sentenced each one of them to a period of three years rigorous imprisonment together with a fine of Rs. 500/- for the offence under Section 376/511 and Section 34 IPC and sentenced them to two years rigorous imprisonment together with a fine of Rs. 300/- for the offences under Sections 327/34 IPC and to six months rigorous imprisonment together with a fine of Rs. 100/- for the offence under Section 322 IPC. In default of the payment of the amount of fine of Rs. 500/- the accused has been further ordered to undergo three months rigorous imprisonment. In default of the payment of the amount of fine of Rs. 300/- they were ordered to undergo two months rigorous imprisonment each and in default of the payment of fine of Rs. 100/- they were further ordered to undergo one months rigorous imprisonment each.
2. The fact of this case briefly stated are that one Mst. Nalini K.K. A.N.M. was working at Primary Health-Sub-Centre, Bhagalsefta under the jurisdiction of Primary Health Centre, Bhinmal, District, Jalore. On the night interventing between 23rd and 24th of November, 1977 when she was sleeping in her house at village Bhagalsefta, accused Kalekhan came to her house at 9.30 PM and called her out and told her that the Thakedar is down with fever and so some medicine may be given. She opened the door and supplied to him the requisite medicine to check the fever and closed the doors. At about 10.15 PM one Bhanwarlal who was then working in the Sheep and Wool Department came to her house and enquired from her whether Thakedar and Kale Khan have come to her residence. She again opened the door and told him that they came there and she has given to them the required medicine and they have already left. On this Bhanwarlal left the place and she then closed the doors of the main gate of her house and while returning to her apartment when she reached near the Neem tree situated in the enclosed court-yard of her house it is alleged that both these accused persons i.e. Sher Singh and Kale Khan came near her. According to her probably they were hiding themselves inside the enclosed court-yard of the Sub-Centre. Sher Singh gagged her mouth whereas Kale Khan lifted her by her waist. They took her near the side lane of her house, felled her down on the ground and Sher Singh then sat on her breasts and tried to rape her on which she cried. Sher Singh then tried to gag her mouth by both his hands and in that process one of his arms came in contact with her mouth and thus she got an opportunity to bite his thumb. On hearing her cries Bansilal, Dayalai Ratan Singh, Bhomiya and Reva Shanker etc. came running to her house. On seeing them the accused persons scaled over the boundary wall of her house and escaped. The neighbours then took her to the Sarpanch, who advised her to report the matter to the police. On the next morning she went to Bhinmal and submitted a written report marked Ex. P. 1 to Doctor P. D. Purohit. Incharge of the Primary Health Centre at Bhinmal who forwarded that report to the Dy. S.P. Bhinmal for necessary action. On the basis of this report a case was registered under Sections 376/511 and 456 IPC. The site was inspected and the site inspection plan has been marked Ex. P. 5. Her injuries were examined by the doctor on that very day i.e. 24-11-77. Her injury report has been marked Ex. P. 6. The injuries of Sher Singh were also examined on 29th of November, 1977. His injury report has been marked Ex. P. 7. The arrest memos of accused Kale Khan and Sher Singh have been marked Ex. P. 8 and Ex. P. 9 respectively.
3. After the usual investigation a challan was presented in the court of learned Judicial Magistrate, Bhinmal, from where it was committed for trial to the court of learned Sessions Judge, Jalore. The learned Sessions Judge, charged the accused persons with the offence Under Sections 376/511 read with 34 IPC and Section 323/34 IPC & ss. 327/34 IPC. The accused persons did not plead guilty to the charges and claimed trial whereupon the prosecution examined as many as 9 witnesses in support of its case. The statements of accused persons were recorded under Section 313 Cr. PC Sher Singh has taken the plea that the villagers were enraged with him because of the wire fencing done by him and therefore, he has been falsely implicated. His thumb was injured because of a contact with barbed wires. Accused Kale Khan has stated that Bhero Singh abducted his sister-in-law and because of that enmity he has been falsely implicated. They led to evidence in their defence. After hearing the parties the learned lower court decided the case as aforesaid and hence both these convicted accused appellants have separately come in appeal before this Court.
4. I have heard Mr. Suresh Kumbhat representing accused appellant Sher Singh and Mr. M. L. Garg for the accused appellant Kale Khan, as also Mr. B. C. Bhansali, learned Public Prosecutor for the State.
5. The learned lower court has placed implicit reliance on the testimony of Mst. Nalini K. K. which stands fully corroborated by the testimony of PW 3 Ratan Singh PW 2 Dayalal also reached the place of occurrence at the time when the 2 accused persons were jumping from the boundary wall of the house of Mst. Nalini K.K. He too has substantially corroborated the story put forth by PW 5 Mst. Nalini, K.K. According to Mst. Nalini, initially the accused persons came there at about 9.15 p m. in the night. Accused Kale Khan called her and asked her to give one novalgin tablet because Shersingh was down with fever. She gave them the requisite medicine and then closed her doors and went to sleep. At about 10.15 p.m. One Bhanwar Lal called her out and asked her whether these two persons came to her? When she informed them that they did come there for treatment of fever and she has supplied them the requisite medicine, he went away and then she closed the doors of the main gate of the sub-centre and when she was passing through the enclosed chowk for going to her living apartment and reached near the Neem tree in the chowk Sher Singh immediately came from behind and gagged her mouth and tried to lift her where as Kale Khan lifted her from her waist and they took her in the lane existing by the side of her living apartment inside the boundary wall of her house. They then felled her down on the ground. Accused Sher Singh sat on her breasts and he caught hold of her right breast and pressed it. Kale Khan caught hold of her mouth and closed it. Thekedar, i.e., Sher Singh then lifter her legs. He also pulled the 'nada' of her peticoate by which the stitching of her peticoat was torn and the 'nada' too was torn. She cried out whereupon Sher Singh closed her mouth by his hands and in that process his thumbs went inside her mouth and at that point of time she bit his thumbs. She also received injuries by the nails of Sher Singh. Hearing her cries the neighbours also arrived there and on seeing the neighbours arriving the accused persons ran away. The testimony of Mst. Nalini clearly establishes that these accused persons entered into her house with an avowed intention of committing rape on her. They concealed their presence inside the compound of the Sub-Centre. It is unfortunate that no charge has been levelled against the accused persons for criminal trespass. However, from the evidence of Mst. Nalini which is fully supported by the testimony of PW 3 Ratan Singh and to which circumstantial support has been offered by PW 2 Dayalal clearly establishes that the accused had the intention of committing rape on her. Sher Singh tried his best to commit rape. Kale Khan was also very much present and was helping Sher Singh to facilitate the commission of rape by catching hold of the hands of Mst. Nalini and by gagging her mouth with his hands. Thus the offence under Section 376/511 IPC is clearly made out against accused Sher Singh and the offence under Sections 376/511/34 IPC is made out against accused Kale Khan. The offence under Section 327 is not made out against the accused persons because by this assault Nalini K.K. was not made to do anything. Her effort was to resist the attempt of rape on her and this does not amount to an offence under Section 327 IPC. The injuries received by her in the process of the commission of an attempt to rape her have not been inflicted with any intention to cause injuries but actually they were part and parcel of the offence of commission of rape or attempt to commit rape on her and, therefore, the appellants should not have been convicted for the offence under Section 327 or 327/34 IPC. They ought to have been charged for the commission of criminal house trespass in the night by scaling over the compound wall of the Sub-Centre and forcing their exist also by jumping over the said boundary wall. They could have been charged with an offence punishable under Sections 457 and 458 IPC but unfortunately no charge has been framed against them so far as this part of the allegation is concerned under these circumstances, I am in agreement with learned lower court that the offence under Sections 376/511 IPC is fully made out against accused Sher Singh and the offence Under Section 376/511 read with Section 34 IPC is fully made out against accused Kale Khan.
6. Learned counsel for the accused-appellants did not challenge the conviction of the accused persons under the above mentioned sections. However, they submitted that accused Sher Singh was aged 19 years and accused Kale Khan was aged 20 years at the time of the occurrence. This is fully borne out from their statements recorded under Section 313 Cr.PC wherein the court has also recorded their age as 19 and 20 years respectively. Thus both of them were below 21 years at the time of the occurrence. The occurrence has taken place in the year 1977. Almost about 8 years have elapsed since the occurrence took place. The accused Sher Singh has remained in custody from 28 11-1977 to 16-3-1978 i.e. for 119 days and accused Kale Khan has remained in custody from 1-12-1977 to 8-4-1978 i.e. for 128 days. The learned counsel of the accused appellants therefore submitted that it will be unjust to send them back to custody after a lapse of such a long time. No previous conviction existed against these two accused persons. looking to their age, immediately and looking to the fact that it is their first offence, they should be dealt with leniently so far as sentence is concerned.
7. The learned Public Prosecutor appearing on behalf of the State submitted that it is a very grave crime. These two accused persons taking advantage of the helplessness of this lady entered into her house by scaling over the boundary wall in order to commit rape on her. Such persons deserve no leniency.
8. I have given my most consideration to the rival submissions made at the Bar. I feel that looking to the age of the accused persons and further looking to the fact that the occurrence has taken place before 8 years and taking into consideration the fact that they have already remained in custody for 119 and 128 days respectively, it will not be just and proper to send them back to custody.
9. In this respect I place reliance on Kalu Khan v. The State of Rajasthan 1978 Rajasthan Criminal Cases 429 where in for a similar offence the accused was sentenced to the period of his custody which was 5/1-2 months in that case.
10. Looking to the facts and circumstances of this particular case, I feel that a heavy fine should also be imposed upon the accused persons and out of this a substantial amount should be awarded as compensation to the lady concerned for the mental agony which must have been suffered by her due to this outrageous incident.
11. The appeal is therefore, partially accepted. The conviction and sentences of accused-appellants Kale Khan and Sher Singh under Sections 327/34 and Section 323/34 IPC are set aside. The conviction of accused Sher Singh for the offence under Sections 376/511 IPC and against accused Kale Khan under Sections 376/5(1 read with 34 IPC is hereby maintained. However the substantive sentences imposed against them are reduced to the period of their custody. The amount of fine of Rs. 500/- imposed on them is raised to Rs. 1500/- each. In default of the payment of the amount of fine each of these accused appellants shall further undergo six months rigorous imprisonment each. Out of this amount of fine if recovered, Rs. 2000/- maybe paid as compensation to Mst. Nalini K.K.
12. Learned counsel for the accused-appellants pray for two months time to deposit the amount of fine. Time prayed is granted. If the amount of fine imposed against the two accused-appellants is not deposited within the stipulated time the learned Sessions Judge, Jalore is directed to effect the arrest of both the accused persons to serve out the sentence imposed on them in default of the payment of the amount of fine. This disposes of these two appeals accordingly.