NIRMAL HALDHAR Vs. STATE

JUDGEMENT

(1.) This appeal, preferred by the appellant u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 5.11.1999 passed by Additional Sessions Judge/Special Judge (E.C. Act), Nainital in Sessions Trial No.33 of 1995, State v. Nirmal Haldar and others, whereby the learned Addl. Sessions Judge/Special Judge convicted the appellant-accused Nirmal Haldar under Section 376(g) of The Indian Penal Code, 1860 (hereinafter to be referred and sentenced him to undergo rigorous as IPC) imprisonment for a period of ten years with a fine of ` 5,000/- and in default of payment of fine, two months' simple imprisonment was further awarded to him. The appellant-accused was further convicted u/s 395 IPC and was sentenced to ten years' R.I. with a fine of ` 5,000/- and in default of payment of fine, two months' simple imprisonment was further awarded to him. Both the sentences were directed to run concurrently. However, the co-accused Virendra Mistri, Anand Kumar, Haripad and Gokul were acquitted by the trial court from the charges levelled against them.

(2.) Heard learned counsel for the parties and perused the entire material on record.

(3.) In brief, the prosecution case is that complainant Kartik Thikedar lodged a first information report at P.S. Rudrapur on 2.11.1994 with the averments that in the night of 25/26.10.1994 he along with his wife Smt. Chandni, three children and mother Smt. Kalidasi was sleeping in the room and in the adjoining room wife of his younger brother, namely, Smt. Savirti along with her four children were sleeping. Lantern was providing light in these two rooms. It is alleged that at about 1 PM some one threw the light of torch from his window. On hearing the sound of footsteps, as soon as he and his wife opened the door, appellant-accused Nirmal Haldhar, resident of his village along with his two companions entered into his house and tied his hand with his muffler. It is further alleged that after some time the appellant-accused took wife of his brother in the room and committed rape with her. It is further alleged that one accused also committed rape with her wife. Thereafter other two accused committed rape with Smt. Savitri. Thereafter the appellant-accused and his five companions taken away two cycles, four steel plates, four glasses, four steel cups, one blouse piece, two pairs of sleepers and a bed sheet from their house. With these averments, the FIR was lodged by the complainant Kartik Thikedar in the police station. That FIR is Ext.Ka-1. On the basis of this FIR, Chik FIR of the case was prepared by Head Mohirror Shankar Nath, i.e. Ext.Ka-6. Necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-7. The investigation of the case was entrusted to PW8 Virendra Singh, who during the course of investigation, recovered the lantern and prepared a fard thereof i.e. Ext.Ka-2 and Ka-3. On 3.11.1994, Smt. Chandni and Smt. Savitri were got medically examined at Jawahar Lal Nehru Hospital, Rudrapur by PW4 Dr. Mamta, who after medical examination, prepared medical reports i.e. Ext.Ka-4 and Ka-5. During the course of investigation, the I.O. prepared the site-plans of the place of incident and place of recovery of cycle, which are Ext.Ka-10 and Ka-11 and also recorded the statement of witnesses and after completing the investigation, he filed the charge sheet against the appellant-accused and co-accused (acquitted by the trial court), which is Ext.Ka-12.