RAM SWARUP Vs. STATE OF UP

JUDGEMENT

(1.) This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973, (for short Cr.P.C) is directed against the judgment and order dated 29.08.1997 passed by Sessions Judge, Tehri Garhwal, in Sessions Trial No. 11 of 1996 whereby said court has convicted the appellants namely Ram Swarup and Pappu @ Satya Prakash, under Section 376 and 323 read with Section 34 of Indian Penal Code, 1860 (for short I.P.C.). Each one of them has been sentenced by the trial court to undergo rigorous imprisonment for a period of 10 years under Section 376 IPC and rigorous imprisonment for a period of 1 year under Section 323 read with Section 34 I.P.C.

(2.) Heard learned Counsel for the parties and perused the lower court record.

(3.) Prosecution story in brief is that on 19.02.1996 at about 8:45 P.M, P.W. 1 Paola Velencich, an Italian citizen, alongwith her Israeli friend Hava Hobsmann was waiting for a three-wheeler (Vikram/Tempo) at Rishikesh market so that they may go towards Laxman Jhoola and Ram Jhoola. A three-wheeler (Tempo/Vikram six seater) stopped near them in which three Indian nationals were already in. The aforesaid two foreign nationals boarded the three-wheeler. Hava Hobsmann got down near Ram Jhoola crossing where after two Indian nationals travelers also got down near Ram Jhoola Police Station. P.W. 1 Paola Velencich, complainant was the only traveler in the vehicle alongwith the three-wheeler rikshaw driver and his friend for a journey ahead. When the three-wheeler was heading towards Laxman Jhoola, suddenly the driver diverted and drove it towards Omkaranand Ashram. The complainant realised that it is not the way for Laxman Jhoola and immediately asked the three-wheeler driver to stop the vehicle. However, the driver's friend jumped in the seat behind and assaulted the complainant. The three-wheeler was stopped at some distance and the two (driver and his friend) took the complainant towards the forest. Both of them firstly beat complainant and thereafter committed rape on her, one after another. Prosecution case is that after the complainant was beaten and raped she was left there. The complainant had to walk down to the Ashram in Laxman Jhoola where she was staying. She reached there at about 10:30 P.M.. She remained in disturbed state of mind for three days whereafter she contacted the Italian Embassy and informed about the incident. The Embassy advised her to get lodged first information report with local police. On 23.02.1996, P.W.1 Paola Velencich lodged FIR (Ex. A1) at Police Station Muni Ki Reti at about 14:30 hours. She mentioned in her report that the two accused were aged 22-24 years, and during the talks among themselves one was addressing another as Pappu. On the basis of said report Police prepared chick report (Ex. A6) and registered crime No. 55 of 1996 relating to offences punishable under Section 376, 323, 504 I.P.C., against the Pappu, tempo driver, and his colleague. Investigation was taken up by P.W. 8 Sub-Inspector Man Singh Dagar. On the very day Paola Velencich (P.W.1) aged 28 years, was taken to the hospital at Narendra Nagar at 3:15 P.M., where she was medically examined, and 13 simple injuries were found on her person. Thereafter she was taken to the gynecologist P.W.5, Dr. Gulab Gujjar, for examination of her private parts. During investigation on 06.03.1996, complainant Paola Velencich saw one of the two accused in the market near Ram Jhoola crossing and immediately informed the police about him. Said person was accused Ram Swarup who was arrested by the police. Thereafter Pappu @ Satya Prakash was also arrested and a shawl belonging to the complainant which was taken from her by the accused was recovered on 22.03.1996 from the room of the accused Pappu @ Satya Prakash in respect of which recovery memo (Ex. A5) was prepared. A test identification parade was held on 26.03.1996 in New Tehri Jail which was conducted by P.W. 9 Pradeep Kumar, Executive Magistrate. In said parade Pappu @ Satya Prakash was put to identification and in the second round complainant Paola Velencich correctly identified him. Thereafter, complainant was called in Collectorate to identify shawl which was mixed up with other shawl on same day i.e. 26.03.1996. The complainant correctly identified her shawl. Executive Magistrate, prepared TIP report (Ex. A11) of accused Pappu @ Satya Prakash and in respect of property, report (Ex. A14). After preparing site plan and completing investigation, the Investigating Officer submitted charge sheet (Ex. A10) against both the accused Ram Swarup and Pappu @ Satya Prakash for their trial in respect of offences punishable under Section 376, 323, 504 I.P.C.