SANTOSH AND ANOTHER Vs. STATE

JUDGEMENT

(1.) This criminal appeal has been preferred by the appellants-Santosh and Bhagwan Das against the judgement and order dated 7th March, 1991 passed by the learned Special Judge (Dacoity Affected Area, Mainpuri) in S.T. No. 471 of 1987 whereby the appellants have been convicted under section 376 IPC for 10 years rigorous imprisonment and under Section 366 IPC for 7 years rigorous imprisonment. Both the sentences run concurrently.

(2.) Brief facts of this case is that PW 1, Ranno Devi lodged the FIR on 28.9.1987 at 11:30 a.m. against the appellants with allegations that one month prior to the FIR when the complainant was going to her paternal home to in-laws house alongwith her husband, due to being late from his parental house it was too dark for him to reach at Jasrana. She stay at the Garden outside of Jasrana bus stand. Victim went to the grooves due to urination where victim was overpowered by three accused persons namely, Baghwan Das, Santosh Badhai and Jogendar Lodha had committed gang rape upon her one by one. When the victim become unconscious, all the accused persons took her away to Aligarh and detained to victim at Aligarh hotel upto 26.9.1987 for about one month and she came back to his mother house at Vangaon District Etah after getting opportunity. It is also alleged in the FIR that the accused persons also taken her payal, kardhani and kundal. When the victim have got an opportunity to escape from the custody of the accused after a lapse of one month, victim was returned back to her parental house at Etah and written report Exhibit Ka 1 typed by victim and submit the written report to S.S.P. Etah and under direction of S.S.P. Etah chik FIR Exhibit Ka-8 was registered against the appellants under Sections 392, 366 and 376 IPC at P.S. Jasrana.

(3.) Investigation of this case was entrusted to Khem Singh (PW 3), Station House Officer and during investigation he recorded the statement of victim and on the pointing out of the victim prepared site plan, Exhibit Ka-4. After that victim was medically examined by (PW-4) Dr. Vimla Sharma who prepared medical examination report, Exhibit Ka-7 for determination of the age of the victim. She was referred to radiologist for x-ray. Dr. S.C. Dubey (PW 5) prepared x-ray report, Exhibit Ka-9. After completing the formalities of investigation, Investigating Officer submitted the charge sheet, Exhibit Ka-5 against the appellant Santosh on 9.11.1987 and against Bhagwan Das on 4.12.1987 under Sections 366, 376, 392 IPC. Investigating Officer also filed the charge sheet against co-accused Jugendra as absconder. On the basis of this charge sheet, cognizance was taken by the Magistrate and after committal before the sessions court, this case was transferred to Special Judge. (Dacoity Affected Area), Mainpuri for trial wherein the charges against the appellants-Santosh and Bhagwan Das were framed under Sections 366, 376 and 392 IPC. Charges were read over and explained to the accused in ''hindi'. The appellants denied the charges levelled against them and claimed to be tried.