RAMESHWAR DAYAL Vs. STATE OF UP

JUDGEMENT

(1.) ABOVEMENTIONED appeals are being disposed of by this common judgment as both the appeals are arising out of the same judgment and order dated 27.02.1996 passed by the Ist Additional Sessions Judge, Haridwar in Sessions Trial No. 172 of 1993. Appellants-Rameshwar Dayal, Ramesh Kumar stood trial for the offences under Sections 376, 392 and 411 of the Indian Penal Code, 1860 (in short I.P.C.), while accused Yasin was tried for the offence under Sections 392 and 411 of the I.P.C. Accused Rameshwar Dayal and Ramesh Kumar have been convicted and sentenced under Section 376 of the I.P.C. to life imprisonment and convicted and sentenced under Section 392 of the I.P.C. to ten years rigorous imprisonment each and a fine of Rs. 10,000/- each. In default of payment of fine they have further been ordered to undergo two years rigorous imprisonment. Accused Yasin was convicted under Section 392 and sentenced to ten years rigorous imprisonment and a fine of Rs. 10,000/-. In default of payment of fine he has further been ordered to undergo two years rigorous imprisonment. Appeal on behalf of accused Yasin stands abated vide order-dated 16.11.2009.

(2.) BRIEF facts of the case as culled out from the record are that Katherine Eldridge D/o David Eldridge, R/o U.S.A. was known to Vimla Starjal cousin sister of Dr. Pratap Singh R/o Roorkee. Said Vimla had given reference of Dr. Pratap's Nursing Home at Roorkee to Katherine Eldridge so that she could go and stay with him. She had told Katherine that she could ask the address of Pratap Nursing Home from any Rickshaw puller. After visiting several countries Katherine Eldridge landed at Delhi Airport on 12.02.1993 on tourist visa. On 27.02.1993 she proceeded for Roorkee by bus at 3:15 p.m. Accused Ramesh occupied the seat next to Katherine Eldridge while Rameshwar Dayal and his another companion sat on the back seat. Ramesh tried to broach the conversation with Katherine Eldridge but she did not understand Hindi language, therefore, Ramesh tried to make her understand with gestures that she could stay in his guesthouse but she refused. Accused Rameshwar wrote his address on a plain paper in a book with Katherine Eldridge, which is Ex. Ka-1. The bus reached Roorkee at 8:30 p.m. Ramesh picked up the backpack of Katherine Eldridge and put the same in a rickshaw parked near the bus. Katherine Eldridge mistook that accused Ramesh was trying to help by getting the conveyance arranged for her. Katerine Eldridge told the rickshaw puller that she wanted to go to Pratap Nursing Home. Said rickshaw puller was accused Yasin. Accused Ramesh also boarded the rickshaw with her. Katherine Eldridge thought that Ramesh was also going in the same direction, therefore, she enquired as to whether they were going to Pratap Nursing Home to which Ramesh replied with a nod. Accused Rameshwar Dayal and his other companion boarded another rickshaw and followed Katherine Eldridge's rickshaw. Both the rickshaws were going on the side of canal. They stopped the rickshaws at a very secluded place. Where Katherine Eldridge was forcibly taken out of the rickshaw by accused Ramesh and Rameshwar Dayal and then Ramesh uttered the words "I am your death". Thereafter Ramesh and Rameshwar took her to a place where there were no trees or shrubs and no houses nearby. The third companion of these accused took away the backpack and searched the belongings of Katherine Eldridge in the backpack. Thereafter accused Rameshwar forcibly stripped Katherine Eldridge of her clothes and committed forcible sexual intercourse with Katherine Eldridge against her consent. When Rameshwar was committing rape upon her, accused Ramesh was holding her from both the hands and was kneeling over her chest from top and sucking her cheeks. When Rameshwar completed the act of intercourse, he joined other two companion who were opening her backpack and thereafter the third companion who had accompanied Rameshwar from Delhi in the bus also committed forcible sexual intercourse upon Katherine Eldridge against her wishes. He then returned near the backpack, which was at a distance of ten meters from Katherine Eldridge. Thereafter accused Ramesh committed rape upon Katherine Eldridge against her wishes. During the course of intercourse Katherine Eldridge received bruises on cheeks and thighs. Thereafter she was made to put on her dress. Katherine Eldridge went near her backpack and found that the accused persons had taken out the articles from her backpack, which constituted three thousand rupees of Indian Currency, seven hundred American dollar, seven hundred American travellers cheque of the denominion of one hundred dollar each, one Nikon camera with zoom lense, one wristwatch, one walkman with head phone, one mouth harmonica, one bath-pack containing toothbrush etc, one small purse containing identification paper and exchange receipts, one bamboo flute (Bansuri), one pen, one small knife, one cigarette lighter and some other articles. The aforesaid articles were distributed by the accused amongst themselves and few articles, which could not be distributed and her clothes, shampoo etc were put back in the backpack. She was taken back in the same rickshaw up to the bridge to the canal by the accused persons, where Ramesh and Rameshwar and their third companion asked accused Yasin, the rickshaw puller, to take her to Pratap Nursing Home and they all left in the opposite direction. Thereafter accused Yasin took Katherine Eldridge in his rickshaw for a distance of 100 yards and refused to take her further, and asked her to go on foot. Meanwhile a jeep came as the jeep driver had seen the rickshaw puller fighting with Katherine Eldridge, he enquired as to what was the problem. Katherine Eldridge disclosed to him that she had been raped and robbed. The jeep driver took her and rickshaw puller Yasin to the police station but he dropped her outside the police station and went away. Katherine Eldridge went inside the police station alongwith Yasin. She disclosed all the facts to the police officials who asked her to put her version in black and white; thus, she recorded her version on a paper, which is Ex. Ka-2. On the basis of Ex. Ka-2, Chick F.I.R. Ex. Ka-17 was recorded on 28.02.1993 at 5:00 a.m. G.D. entry in this respect is Ex. Ka-18. The underwear of Katherine Eldridge was taken into possession by the lady police vide memo Ex. Ka-3. Thereafter Katherine Eldridge was taken to the hospital where she was medico legally examined by Dr. Anjali Srivastava PW-2, the report is Ex. Ka-4. On the basis of pathology report and report of radiologist, she submitted her supplementary report Ex. Ka-5.

(3.) AS per the pathological report Ex. Ka-16 given by Dr. S.P. Ahuja PW-10, the Pathologist, dead spermatozoa were found in the vaginal smear of Katherine sent by Medical Officer (Female Section) Civil Hospital, Roorkee. AS per the Radiologist report Ex. Ka-15, age of Katherine Eldridge was about 19 years. After considering the report of Pathologist, Dr. Anjali Srivastava submitted her supplementary report Ex. Ka-5 and opined that the pathology report is suggestive of sexual intercourse and the patient was used to sexual intercourse. She further opined that all the injuries on the person of Katherine Eldridge could possibly be caused on 27th February 1993 in between 9:00 p.m. to 11 p.m. The injuries no. 1 and 2 on her face could be by sucking and injury no. 3 could be caused by striking some hard object. The scratch on the right thigh could be possible by scratching of nails.