PRADEEP BASERA Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) THIS appeal, preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 05.09.2006 passed by the District and Sessions Judge, Pithoragarh in Sessions Trial No.03 of 2005, whereby accused/appellant Pradeep Basera has been convicted under Section 376 I.P.C. and sentenced to ten years rigorous imprisonment and directed to pay fine of Rs. 50,000/ - out of which Rs. 40,000/ - was directed to pay to the prosecutrix as compensation. In default of payment of fine, further imprisonment for two years.

(2.) PROSECUTION story in brief is that on 29.07.2004 prosecutrix - Deepa Malra lodged a report (Ext. A -2) with the S.H.O., Police Station -Thal alleging that she went to the house of her real Mausa Mahendra Singh Basera to look after her ill Mausi. Her Mausa did not allow her to come back to her parent's house and requested her to stay there. Since then she was living with her Mausa -Mausi. She alleged that about two years back, one day at about 11:00 a.m. when her Mausa and Mausi were not in the house, accused Pradeep Basera, her cousin (real son of her Mausa and Mausi) caught hold of her and inspite of her resistance and refusal, inside the room of the house of her Mausa, committed rape on her without her consent. She also narrated that the accused persuaded her by telling not to worry and he would marry her. But when she became two months pregnant, she narrated whole fact to the accused but he convinced her that she did not worry and all things would be all right. It is alleged that at the time of lodging report, she was pregnant of five months. Efforts were made to get her admitted to Mahila Ashram Muwani and Nari Niketan, Almora. She refused to get aborted. When the accused was going to marry another lady, Deepa told the accused not to marry but the accused replied that not to worry, he would keep her separately from his family. Thus, when she got opportunity, she reached at Thana Thal for lodging the report.

(3.) THE case was investigated upon by PW -3 SHO Kundan Singh Adhikari -Investigating Officer, who during investigation recorded statement of the victim, apprehended the accused, prepared site -plan and after the medical examination of the prosecutrix was done, her statement under Section 164 Cr.P.C. got recorded, thereafter, the I.O. filed charge -sheet against the accused appellant under section 376 of I.P.C. Learned Magistrate, on receipt of the charge sheet, after giving necessary copy to the accused, as required under section 207 of Cr.P.C. committed the case to the Court of sessions for trial. Learned Sessions Judge, Pithoragarh framed charge of offence punishable under Section 376 I.P.C. to which accused Pradeep Basera pleaded not guilty and claimed to be tried. On this, prosecution got examined PW -1 Dr. Smt. Bharti Rana (who medically examined prosecutrix), PW -2 Km. Deepa (prosecutrix) and PW -3 SHO Kundan Singh Adhikari. In defence, DW -1 Revti Devi(mother of the prosecutrix) was examined. Oral and documentary evidence was put to the accused under Section 313 Cr.P.C., in reply to which he alleged that the evidence adduced against him is false. After hearing the parties, the trial Court found accused Pradeep Basera guilty of offence punishable under Section 376 I.P.C. and convicted him accordingly. Aggrieved by the judgment and order dated 05.09.2006, passed by the District and Sessions Judge, Pithoragarh in Sessions Trial No. 03 of 2005, this appeal has been preferred by the convict.