SAMSON PETER Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short CrPC) is directed against the judgment and order dated 08.06.2001, passed by Additional Sessions Judge/II F.T.C., Dehradun in Sessions Trial No. 101 of 1998, whereby accused Appellants Samson Peter, Rajnish @ Titu, Pappu Pokhariyal and one co-accused Vijay have been convicted under Section 366/34 and 376(2)(g) of the Indian Penal Code, 1860 (for short IPC), and each one of them has been sentenced to rigorous imprisonment for a period of seven years and directed to pay a fine of Rs. 5,000/- under Section 366/34 IPC, and imprisonment for life and also directed to pay fine of Rs. 10,000/- under Section 376(2)(g) IPC.

(2.) Heard learned Amicus Curiae for the accused Appellants and learned Brief holder for the State, and also perused the trial court record. Though Appellants had engaged two private counsel but they did not turn up for hearing, on which Amicus Curiae was appointed to assist the Court on the last date, and he was provided the paper book. Today again, none of the Counsel for the accused Appellants turned up and learned Amicus Curiae assisted the Court on behalf of the Appellants.

(3.) Prosecution story, in brief, is that PW1 Smt. 'A' (being the victim, her name is withheld) is a widowed lady, who used to run a tea stall at Haridwar Road, Dehradun. She was in her thirties. On 22.04.1998 at about 8 pm, after closing her shop, when she was waiting for a conveyance to go her home, accused Vijay who was driving three wheeler (Vikram) bearing registration No. 'U.P. 07 G 879' stopped. In the said vehicle, accused Appellants Pappu Pokhariyal, Rajnish @ Titu and Samson Peter were also sitting. Since earlier also, the victim (PW1 Smt. 'A') had gone in the said three wheeler, she had no hesitation in boarding it to go to her home. But the accused Vijay after sometime started taking the three wheeler towards Rajpur Road, on which she protested but the three accused Appellants whipped out knife and pistols and closed her mouth. The four accused (including the present three accused Appellants) took the three wheeler up to Sattai Anarwala, and from there dragged her to the ruined building of New Rajkamal/Neel Kamal Cinema, situated in a deserted and isolated place. There all the four accused raped the victim (PW1 Smt. 'A') one by one. They kept her mouth closed and she was unable to shout. After the four accused (including the present Appellants) committed rape on her and her mouth got opened, she the basis of which Crime No. 39/1998 relating to the offences punishable under Section 376 IPC against all the four accused Vijay, Samson Peter, Pappu Pokhariyal and Rajnish @ Titu was registered at 23.30 shouted for help. The culprits leaving her ran away. PW1 Smt. 'A' immediately went to Police Station, Cantt. and gave First Information Report (Ex. A-1), on hrs (11.30 pm) on the very day (22.04.1998). She was taken by the police to Mahila Hospital, Dehradun where she was medically examined by PW3 Dr. Renu Negi at about 02.10 am. (in the intervening night of 22 and 23 April, 1998). The Medical Officer found two external injuries on the body of victim. Vaginal smear was taken for histopathology and injury report (Ex. A-2A) was prepared by the said Medical Officer. On pathological examination also, though no definite opinion as to rape was given, but it was reported that the smear taken for pathological examination contained dead spermatozoa, indicative of occurrence of sexual intercourse previously.