SURESH KUMAR Vs. STATE

JUDGEMENT

(1.) BOTH the above-said criminal appeals have been arisen out of the common judgment and order dated 4.4.1997 and the incident in both the appeals is one and the same as well as the evidence is also common in the said trial, hence both of them are being disposed of by this common judgment and order.

(2.) BOTH the criminal appeals, preferred under section 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C), are directed against the common judgment and order dated 4.4.1997 passed by the II Addl. Sessions Judge, Haridwar in Sessions Trial No.389 of 1993, State Vs. Dilla & Suresh Kumar, whereby the learned II Addl. Sessions Judge has convicted each of the appellants/accused Dilla and Suresh u/s376 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced each of them to ten years' rigorous imprisonment with fine of Rs.2,000/- each and in default of payment of fine, further one months' R.I. each. 3.1 have heard learned counsel for the parties and perused the entire material available on record. 4. In brief, the prosecution case is that complainant Km. Umesh Kumari (P.W.1) lodged an FIR stating therein that on 18.8.1988, she reached at the Laksar Railway Station to catch the train for Fajjalpur, Distt. Bijnaur so as to go at her sister's house. However, she could not catch the train going for Nazibabad, From there she reached at Raisi where she was advised to go for Balawala so as to catch the Bus for Madawar. After that she started moving towards Balawala adjacent to the railway line. When she reached farther 11/2-2kms. towards Balawala, then two persons came and enquired about her going, to whom she informed that she was going at her sister's house. When she inquired about the name of those two persons, they disclosed their names as Suresh Kumar and Dilla (appellants). The appellants-accused told her that if she would go alone, then she would be taken away by the miscreants and further told her to go along with them. It was further stated that after that the appellants-accused forcibly took her below the railway line where firstly the appellant-accused Dilla and subsequently, Suresh committed rape with her forcibly. After committing the rape, both the appellants-accused warned her that if she would inform about their names, then she would be killed. After that the appellant- accused Suresh gone from there and the appellant-accused Dilla brought her in a carpenter shop at Raisi. Meanwhile, two police constables, namely, Deep Chandra and Rajendra Prasad reached at that shop where she informed about the entire incident to them. The appellant-accused Dilla was arrested over there and after that the appellant- accused Suresh was also been searched and at Railway Station, Raisi, Suresh was also arrested by the police constables. With the same averments, the FIR Ex.Ka-1 was lodged by P.W.1 Umesh Kumari. On the basis of the FIR (Ex.Ka-1), Head Moharrir Raman and Sharma prepared the Chik FIR of the case on 18.9.1988 at 8:15 P.M., i.e. Ex.Ka-7. He also made entry in the G.D., carbon copy thereof is Ex.Ka-8. Investigation of this case was entrusted to P.W.3 S.I. Pramod Kumar. Victim Km. Umesh was sent for the medical examination where she was medically been examined by P.W.2 Dr. Smt. S.Gupta and medical report Ex.Ka-2 was prepared. The same medical officer also prepared the supplementary medical report of victim, i.e. Ex.Ka-3. The I.O. during investigation took in his possession the under- wears worn by the appellants-accused at the time of above said incident and prepared Fard, i.e. Ex.Ka-4. During the course of investigation the I.O. inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-5. The I.O. during investigation recorded the statements of witnesses and after completing the investigation, submitted the charge sheet against the appellants/accused, i.e. Ex.Ka-6. 5. After receiving the charge sheet, learned CJM, Haridwar committed the case to the court of Sessions on 7.09.1993 after giving necessary copies to the appellants/accused as provided under Section 207 Cr.P.C. 6. On 14.7.1994, the learned Sessions Judge, Haridwar has framed the charge against the appellants/accused Dilla and Suresh u/s376/506(2) IPC. The charges were read over and explained to appellants/accused, who pleaded not guilty and claimed to be tried. Thereafter, the case was transferred to II Addl. Sessions Judge by the Sessions Judge for disposal as per law. 7. To prove its case, the prosecution has examined P.W.I Smt. Umesh, victim, P.W.2 Dr. Smt. S.Gupta, who medically examined the victim and P.W.3 S.I. Pramod Kumar Singh, I.O. of the case. 8. After that the statements of the appellants/accused was recorded u/s313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against them and stated that they have been falsely implicated. However, they did not produce any oral or documentary evidence in defence. 9. After hearing learned counsel for the parties and appreciating the entire material available on record, the learned II Addl. Sessions Judge, Haridwar vide judgment and order dated 4.4.1997 has convicted and sentenced the appellants/accused as above discussed. Feeling aggrieved by the aforesaid judgment and order, the accused/appellants have preferred the present appeal. 10. Before further discussion, it is pertinent to mention the medical report (Ex.Ka-2) of the victim Km. Umesh who was medically examined on 18.9.1988 at 10 P.M. by P.W.2 Dr. S.Gupta, which is as under: -