GAJPAL SINGH Vs. STATE OF U.P.

JUDGEMENT

(1.) THIS criminal appeal, preferred under Section 374(2) of The Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.) is directed against the judgment and order dated 29.11.1991 passed by Sessions Judge, Chamoli at Gopeshwar in Sessions Trial No., 15 of 1991, State v. Gajpal Singh and another, whereby the learned Sessions judge has convicted appellant Gajpal Singh under Sections 354 and 376 of The Indian Penal Code, 1860 (hereinafter referred to as I.P.C.) and awarded sentence for one year's R.I. under Section 354 I.P.C. and ten years' R.I. under Section 376 I.P.C. and it has been directed that both the sentences shall run concurrently and co -accused Prem Singh has been acquitted for the offence punishable under Sections 354 & 376 I.P.C. In brief, the prosecution case is that on 16.08.1989 at about 8.00 P.M., victim Smt. Darshani Devi was preparing food in her house and her mother -in -law was also sitting there and then the accused -appellant Gajpal Singh and accused Prem Singh had reached there and they took liquor there and the mother -in -law of the victim had also taken liquor with both Gajpal Singh and Prem Singh. After sometimes of taking the liquor accused Prem Singh felt hangover then appellant Gajpal Singh told him that he should go up -stairs and should take a sleep in the room. Prem Singh went up -stairs to the house and slept there. Thereafter, accused -appellant Gajpal Singh took meals along with victim Smt. Darshani Devi and he also went in the room up -stairs of the house of the victim. Victim Smt. Darshani Devi cleaned the utensils and also took food and after that she went in her room to sleep, just then she saw that accused Prem Singh was lying down in the outer room of her mother -in -law. When victim Smt. Darshani Devi went in her room, accused Prem Singh also entered there and started teasing her. Victim Smt. Darshani Devi told accused Prem Singh that she was his aunt and it was not proper for him to tease her, then accused Prem Singh silently came out of her room. After some time, accused Gajpal Singh had entered in the room of victim Smt. Darshani Devi and the accused -appellant Gajpal Singh lay down in the bed beside Smt. Darshani Devi. When the victim tried to raise alarm, Gajpal Singh gagged her mouth and forcibly torn the petticoat and baniyan of the victim and committed rape with her. When victim Smt. Darshani Devi again tried to raise alarm, accused -appellant Gajpal Singh assaulted on her head and face with a torch due to which the blood was oozing from the wound and threatened the victim not to raise alarm and thereafter he ran away from there. On 17.08.1989, Victim Smt. Darshani Devi made a complaint to the Pradhan of Gram Sabha Kyark regarding the occurrence, carbon copy of the said complaint is Ex. Ka -2. On the said complaint of the victim, a panchayat of the villagers was convened by the Gram Pradhan and an application signed by Mohan Singh, Bhupal Singh and others was given to Sub Divisional Magistrate, Ukhimath, District Chamoli for taking appropriate action against the accused, that application is Ex. Ka -3. On 17.08.1989, Victim Smt. Darshani Devi was taken to the Government Hospital, Ukhimath for medical examination but she was advised to go to Government Hospital, Augustmuni for her medical examination and there too her medical examination was not conducted and she was again advised to go to the Government Hospital, Gopeshwar for medical examination. Then she went to Gopeshwar, District Chamoli on 25.08.1989 and filed an application regarding the said occurrence under Section 156(3) Cr.P.C. i.e. Ex.Ka -1 in the Court of Chief Judicial Magistrate, Chamoli and on the same date her medical examination was conducted in the Government Hospital, Gopeshwar by Dr. Mayank Upadhyaya, who prepared the medical report i.e. Ex.Ka -4. On the application moved under 156(3) Cr.P.C., Learned C.J.M. Chamoli vide order dated 25.08.1989 directed the Patwari of the Patwari Circle Chandrapuri, Tehsil Ukhimath, District Chamoli to register the case against the accused under Sections 354 and 376 I.P.C. and to make investigation in the case thereafter and to submit the report. The order dated 25.08.1989 passed by C.J.M., Chamoli is Ex.Ka -5. In compliance of the order of learned C.J.M. Chamoli, Patwari Garib Dass prepared a Chik F.I.R. on the basis of the typed report Ex. Ka -1 on 27.08.1989, the Chik F.I.R. is Ex.Ka -6 and entry was also made in the G.D., the copy of G.D. is Ex.Ka -7 (in the rural areas of hill Districts of Uttarakhand the Patwaris are vested with the police powers). On 28.08.1989, on the pointing out of victim Smt. Darshani Devi, Patwari (Investigating Officer) inspected the place of occurrence and prepared site plan i.e. Ex.Ka -8 and at the same time at the place of occurrence, he took one petticoat i.e. Ex.1, one blouse i.e. Ex.2 and one swatter i.e. Ex. 3 of the victim. The Patwari also collected 23 broken pieces of glass bangles of the victim from the spot i.e. Ex. -4 and prepared Fard i.e. Ex.Ka -9. The patwari also recorded the statements of the witnesses during the course of the investigation. After completing the investigation, he submitted the charge sheet against the present appellant and co -accused Prem Singh, who has been acquitted by the trial court, that charge sheet is Ex. Ka -10.

(2.) LEARNED Chief Judicial Magistrate, Chamoli committed the case to the Court of Session on 11.04.1991 under Section 209 Cr.P.C. after complying the provisions of Section 207 Cr.P.C.

(3.) TO prove its case prosecution examined P.W. 1 Smt. Darshani Devi (victim and complainant of the case), P.W.2 Gajendra Singh, P.W.3 Indra Singh, P.W.4 Umed Singh, P.W.5 Dr. Mayank Upadhyaya and P.W.6 Garib Dass, Patwari (Investigating Officer). After that the statement of the appellant and co -accused were recorded under Section 313 Cr.P.C., who denied the allegations made against them and in defence they did not produce any oral or documentary evidence.