UMESH SINGH PANWAR ALIAS SADHU Vs. STATE

JUDGEMENT

(1.) THIS criminal appeal, preferred under section 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 05.02.1992 passed by IIIrd Additional Sessions Judge, Dehradun in Sessions Trial No. 64/1990, State Vs. Umesh Singh Panwar and another, whereby the learned Sessions Judge has convicted the appellant/accused under Section 376 of the Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to seven years rigorous imprisonment. However, co -accused Vikram Singh Chhetri was acquitted of the offence punishable under Section 376 IPC r/w Section 511 IPC.

(2.) I have heard Sri R.P.Nautiyal, Advocate for the appellant and Sri M.A. Khan, Brief Holder for the State and perused the entire material available on record.

(3.) IN brief, the prosecution case is that complainant Km. Ganga (P.W.1) lodged a report stating therein that on 14.9.1989 at about 9.15 P.M., Sadhu had come at her house and had committed rape with her. After sometime, another co -accused Vikram came in her house and he also tried to commit rape with her. Meanwhile, her brother Gagan Rana (P.W.3) came there due to which co -accused Vikram ran away from the place of occurrence. With the same averments, the FIR was lodged by Km. Ganga (P.W.1) on 14.9.1989 at 10:30 P.M. at P.S. Cantt. Dehradun, i.e. Ex.Ka -1. On the basis of this report, Constable Moharrir Satish Chandra Sharma (P.W.4) prepared the Chik FIR, i.e. Ex.Ka -6. The necessary entry was also made in the G.D., the carbon copy of G.D. is Ex. Ka -7. The investigation of this case was entrusted to P.W.6 S.I. Satya Pal Singh Sisodhiya. Victim Km. Ganga (P.W.1) was medically examined by P.W.2 Dr. Abha Mamgain on 15.9.1989 at 12:50 P.M., the medical report is on record. Supplementary report of victim Km. Ganga is Ex.Ka -3. Vaginal Smear Report in respect of victim Km. Ganga prepared by Pathologist is Ex.Ka -5. X -ray of victim Km. Ganga was conducted by P.W.5 Dr. B.C. Ramola and X -ray report was also prepared, i.e. Ex.Ka -10. During the course of investigation, the I.O. took in his possession the clothes of the victim which she was wearing at the time of incident and a Fard was also prepared, i.e. Ex.Ka -8. After the medical examination, victim Km. Ganga was given in the Supurdgi of her brother and Supurdginama was prepared, i.e. Ex.Ka -9. During the course of investigation, the I.O. inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka -11. The I.O. during the course of investigation recorded the statements of witnesses and after completing the investigation, filed the charge sheet against the appellant/accused and also against the co -accused Vikram Singh CVhhetri (acquitted by trial court) under Sections 376/511 IPC, i.e. Ex.Ka -12.