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1. Appellants have preferred these appeals aggrieved by judgment and order dated 18.04.2016, passed by Special Judge SC/ST Cases, Jaipur in Sessions Case No.48/2011, whereby appellants Devaram and Basram @ Vishram have been convicted for offence under Section 376(2) (g) read with Section 120-B IPC in alternate Section 107 IPC and both appellants have been sentenced to ten years rigorous imprisonment and fine of Rs.5,000/-, on non payment of fine, appellants Devaram and Basram @ Vishram to further undergo three months simple imprisonment. Appellants Devaram, Basram @ Vishram and Shakuntala have been convicted for offence under Section 306 IPC and sentenced to ten years rigorous imprisonment and fine of Rs.5,000/-, on non payment of fine to further undergo three months simple imprisonment. Appellant Devaram has further been convicted for offence under Section 497 IPC and three years rigorous imprisonment has been imposed, aggrieved by which the present appeal has been preferred.

30. With regard to delay in lodging of the complaint, it is contended that prosecutrix was under a shock due to demise of her sister and it is only after she came out of the shock and disclosed the incident to her father that the complaint was lodged. The delay in lodging of complaint is thus explained.

31. Learned Public Prosecutor has further contended that PW-3-Kailash Chand, owner of the house situated at Jailal Munshi (12 of 19) [CRLA-495/2016] Ka Rasta, has stated before the Court that Devaram took his house on rent on 06.02.2010. He came with Shakuntala and her daughters and introduced himself as husband of Shakuntala and considering that it was a family, he let out the premises. It is argued that no enmity whatsoever is shown by the appellant with PW-3 Kailash Chand. It is further contended that as appellant- Devaram was staying with appellant-Shakuntala as husband and wife, therefore, the fact that they were living in adultery is proved beyond reasonable doubt and Court below has not erred in convicting the appellant-Devaram for offence under section 497 IPC.

37. The present complaint was lodged after seventeen days of demise of deceased and was registered under Section 306, 107, 497 and 120-B IPC. There was no allegation, whatsoever, in the complaint Ex.P-26 with regard to rape. The main allegation in the complaint Ex.P-26 pertains to Section 497 IPC. The allegations were that appellant-Devaram was having relations with appellant- Shakuntala. Whatever has been stated in evidence by PW-12 and PW-10 are an improvement on the version mentioned in the complaint. PW-10 in his examination in chief has stated that when (15 of 19) [CRLA-495/2016] he got information about demise of his daughter and reached the SMS Hospital, his younger daughter came running to him and started crying and told him that appellants Devaram and Shakuntala have killed her sister. She also mentioned that Devaram has raped her and her sister. She also mentioned that Babulal Gurjar, Vishram Gurjar, Sadhu Ram Gurjar, Raju Meena and another Raju Meena, Chanda Meena and Devaram have raped them many times and that due to rape, her deceased sister became pregnant and she was aborted. None of this version is appearing in the complaint. The fact that this came to the notice of the complainant immediately after demise of his daughter and still the same was not mentioned in the complaint, goes to show, that this story has been built up later on by the complainant, to implicate the appellants. The fact that complainant was having enmity with appellants is established from the complaints and F.I.R. lodged by the appellants against the complainant, hence improvement from the versions mentioned in the belated complaint cannot be made basis for conviction.

46. In view of the above the appeal filed by Devaram is partly allowed. His conviction under Section 376(2)(g) read with Section 120-B IPC in alternate Section 107 IPC and Section 306 IPC is quashed, however, his conviction under Section 497 IPC is upheld. If he has undergone the sentence imposed under Section 497 IPC, he be released forthwith if not required in any other case.

47. Appeals of Shakuntala and Basram is allowed. They are acquitted of the charges levelled against them. They be released forthwith.