KALA ALIAS SANJEEV Vs. STATE

JUDGEMENT

(1.) THIS appeal preferred u/s 374 (2) of The Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr. P. C.) is directed against the judgment and order dated 19th February 1988 passed by the II Additional Sessions Judge, Dehradun in Sessions Trial no. 86 of 1987 State vs. Kala alias Sanjeev and others whereby the learned II Addl. Sessions Judge has convicted the appellants/accused persons Kala alias Sanjeev and Vijay and sentenced each of them to undergo ten years4 rigorous imprisonment for the offence punishable u/s 376 of The Indian Penal Code, 1860 (hereinafter referred to as the I. P. C. ). By the very judgment and order the learned II Addl. Sessions Judge, Dehradun has also come to the conclusion that the offence punishable u/s 376 I. P. C. is not proved against the co-accused, namely, Pappa and Om Prakash, therefore he acquitted both the accused persons Pappa and Om Prakash from the charges levelled against them.

(2.) THE prosecution case, in brief, is this that on 13. 03. 1985 P. W. 1 Km. Sunita @ Pappi, the victim had gone to Shivaji Dharmshala, Saharanpur Road Dehradun for participating in the marriage ceremony of her female friend Neelkamal. Her brother was with her and they had taken a meal there. When the victim was washing her hands after taking meal, at about 12:30 a. m. a little girl had told her that someone is calling her outside. The victim came outside the Dharmshala where the accused/appellant Kala S/o Preetam residing of Indresh Nagar met with her and told that mother of the victim is ailing and her mother has called her at home. Thus, the victim had departed to her home. But at a little ahead on the way the accused Kala had closed her mouth and within no moments other three accused persons Pappa S/o Prakash, Om Prakash S/o Mewa Lal and Vijay S/o Siya Ram residents of Indresh Nagar also reached there and they took her dragging and threatening towards right side of a dirty culvert in a straw store where she was forcefully laid down. Thereafter the accused Kala after breaking string of her trousers had forcefully committed rape on her. Thereafter, the accused Vijay and then Pappa and thereafter Om Prakash had committed rape on her. She made shrieks and on hearing her shrieks the labourers of the straw store and others reached on the place of occurrence and on being challenged by the labourers to caught hold of the accused persons, all the four accused persons ran away from the scene leaving behind her. She came to her house but on account of fear and shyness she could not tell anything to anybody. On 15. 03. 1985 i. e. the date of lodging the report the accused Vijay had inquired from P. W. 3 Naresh Kumar, her uncle4s son, if Pappi, the victim has lodged any report? Then P. W. 3 Naresh Kumar and her mother inquired her and she has narrated the incident occurred on 13. 03. 1985. It is alleged in the written report that rape was committed upon her by the above four accused at about 1:30 a. m. Ultimately, the complainant P. W. 1 Km. Sunita accompanied with her brother Naresh came to the Police Station Kotwali, Dehradun and lodged the First Information Report Ext. Ka-1 in the Police Station. On the basis of the written report the Chik First Information Report Ext. Ka-6 was prepared by Constable Rajendra Singh Rawat in the Police Station on 15. 03. 1985 at 3:05 p. m. The distance of the place of occurrence is shown about 3 kms. from the Police Station. An entry was made in the General Diary, a copy of the G. D. is Ext. Ka-7 on the record.

(3.) KM. Sunita, the victim was medically examined firstly, by P. W. 7 Dr. B. S. Butaula on 15. 03. 1985 at about 3:15 p. m. at Govt. Hospital, Dehradun and the Medical Officer prepared an injury report is Ext. Ka-10 on record. Km. Sunita, the victim, was further medically examined by P. W. 6 Dr. Geeta Madhuwal on 15. 03. 1985 at about 6:05 p. m. at female hospital, Dehradun who prepared an injury report is Ext. Ka-8 on record. On the basis of laboratory report and X-Ray report P. W. 6 Dr. Geeta Madhuwal, Medical Officer has also prepared a supplementary report Ext. Ka-9.