RAKESH KUMAR Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) BOTH these appeals are directed against the judgment and order dated 22.3.2012 passed by learned Sessions Judge. Udham Singh Nagar, in Sessions Trial No. 253 of 2011, whereby said court has convicted accused/appellant Rakesh Kumar under Sections 376, 363 and 366. I.P.C. He (Rakesh Kumar) has been sentenced to rigorous imprisonment for a period of seven years under Section 376. I.P.C., rigorous imprisonment for a period of five years under Section 363. I.P.C. and rigorous imprisonment for a period of five years under Section 366. I.P.C. Another appellant Rohit @ Guddu has also been convicted by the trial court under Sections 363 and 366. I.P.C., and on each count he has been sentenced to rigorous imprisonment for a period of five years. He (Rohit @ Guddu) has been further convicted and sentenced under Section 120B. I.P.C. to rigorous imprisonment for a period of two years, and directed to pay fine of Rs. 10.000. In default of the payment of fine accused Rohit @ Guddu has been directed to undergo simple imprisonment for a period of two years. Heard learned counsel for the parties, and perused the lower court record.

(2.) PROSECUTION story in brief is that on 26.3.2011 at about 10:30 a.m.. P.W. 1 Shabnam (a minor girl) had left her house for school, and did not return. On 28.3.2012. her father P.W. 3 Ahmad Navi gave First information report (Ex. A -4) at Police Station. Kotwali. Rudrapur. Udham Singh Nagar. stating that he has come to know that his minor daughter has been enticed away by accused/appellant Rakesh Kumar. On the basis of said report, crime/F.I.R. No. 132 of 2011 was registered relating to offences punishable under Sections 363 and 366. I.P.C., against accused Rakesh Kumar. Investigation was taken up by P.W. 5 Sub Inspector Manoj Kumar. On 1.4.2011. accused Rakesh Kumar was apprehended alongwith the girl near bus -stand of Rudrapur. Udham Singh Nagar. The custody of the minor girl was handed over on the next day to his father. Thereafter. Shabnam (P.W. 1) was taken to District Hospital. Rudrapur. Udham Singh Nagar. for her medical examination. P.W. 2 Dr. Tanuja Sinha conducted medical examination. She observed in her report (Ex. A -2) that there was no mark of injury in vulva. vagina and perineal region. Hymen was old torn. Vagina admitted one finger easily. She (P.W. 2) Dr. Tanuja Sinha advised x -ray of the right elbow. right wrist and right knee. She also sent vaginal smear slides taken of the victim for pathological examination. On receipt of the pathological examination report and x -ray report. P.W. 2 (Dr. Tanuja Sinha) prepared supplementary report (Ex. A -3). and opined that the age of the girl was between 15 to 17 years, and no definite opinion about rape could be given. On 4.4.2011. the victim was taken to Judicial Magistrate. Udham Singh Nagar. and her statement (Ex. A -1) was recorded under Section 164, Cr. P.C. In said statement the girl narrated that on the day of the incident accused Rohit @ Guddu took her from near the shop towards a Maruti car where co -accused Rakesh Kumar was sitting. She was threatened of dire consequences, and taken in the car to a lonely place, and in the mid -way accused Rohit @ Guddu got down. She further stated that after taking to a lonely house she was kept by the accused Rakesh Kumar for five -six days where she was raped by him. On completion of investigation and after inspecting the site, the Investigating Officer submitted the charge -sheet (Ex. A -11) against accused Rakesh Kumar for his trial in respect of charge of offences punishable under Sections 363, 366 and 376, I.P.C., and against Rohit @ Guddu for his trial in respect of charge of offences punishable under Sections 363, 366 and 120B. I.P.C.

(3.) PROSECUTION got examined P.W. 1 Shabnam (minor victim) P.W. 2 Dr. Tanuja Sinha (medical officer who examined the girl), P.W. 3 Ahmad Naqvi (informant and father of the girl), P.W. 4 Constable Diwan Nath (who prepared the check report of F.I.R. and made necessary entry in the General Diary) and P.W. 5 Sub Inspector Manoj Tiwari (who investigated the crime).