NARENDER KUMAR NEERAJ Vs. STATE OF H.P.

JUDGEMENT

(1.) SINCE these three appeals and one Cr.M.P. (M) arise out of the same judgment dated 18.9.2001 passed by the learned Sessions Judge, Kangra at Dharamshala in Sessions, Trial No. 4 of 2000, therefore, are being disposed of by this common judgment.

(2.) BRIEF facts, relevant for the purpose of disposal of the aforesaid matters, are that the prosecutrix (PW -4), who belongs to a Scheduled Caste, is permanent resident of village Dagoh. Her parents had purchased some land in Village Rakkar. At the relevant time, her father was serving in Chandigarh and she was residing with her mother Kanta Devi (PW -9) in the home village and often used to go to village Rakkar with her mother for doing agricultural work. Before July 7, 1999 she had been residing in village Rakkar with her mother for about a month. On 7.7.1999 at about 11 a.m. the prosecutrix came to Rakkar Bazaar to take bus for her home village Dagoh. When she reached at the Bus Stand, Ashok Kumar (a procLalmed offender) and Arun Kumar (hereafter referred to as A -l) met her and asked her whether she would accompany them. On her refusal they threatened her to take her with them forcibly or to kill her. Said Ashok Kumar caught hold of the prosecutrix from the arm and A -l took her purse and thus they took her to the house of Ashok Kumar where they again threatened her that in the event of her making noise they would kill her. None else was present in the house. After bolting the doors A -l went to the upper storey and Ashok Kumar attempted to forcibly remove the Salwaar of the prosecutrix. When she stopped him and tried to cry he again threatened her that in the event of her making noise he would strangulate her. Thereafter Ashok Kumar removed her Salwaar and underwear and committed rape on her. He then called A -l to the room who also subjected the prosecutrix to rape. After that Ashok Kumar and A -l removed the prosecutrix to a Shehtoot Farm. There accused Narender (hereafter referred to as A -2) and accused Saurav (hereafter referred to as A -3) were bathing in a Khad. Expecting that A -2 and A -3 would save her from Ashok Kumar and A -l, the prosecutrix raised cries but on reaching the spot, A -2 and A -3 had a talk with Ashok Kumar and Arun. The prosecutrix was then subjected to rape by all the four of them one after the other. After some time Ashok Kumar sent A -2 to the house of accused Ajay Kumar (hereafter referred to as A -5) with the instructions to make sleeping arrangements for the night and to bring liquor. After some time A -2 came back with liquor. Ashok Kumar, A -l, A -2 and A -3 thereafter again committed rape on the prosecutrix. At about 8.30 p.m. A -5 and accused Devinder Kumar Manu (hereafter referred to as A -4) who had brought a torch (flash light) with him came there and all of them took the prosecutrix to the house of A -5 in village Biara where they reached at about 9 p.m. Ashok Kumar and accused persons took liquor in the house and A -4 subjected the prosecutrix to rape followed by Ashok Kumar, A -l, A -2 and A -3. A -5, however, was not a participant in committing rape on the prosecutrix. At about 11 p.m. the aforesaid accused persons started making noise whereupon Prithivi Raj (PW -7), Kaushal Kumar (PW -8), Hem Raj and Virender Pal came to the spot. All the accused persons were present in the house and the prosecutrix narrated the occurrence to the persons who had so arrived in the house. A telephonic information was given to the police and police arrived on the spot at about 4.45 a.m. However, before the arrival of the police the accused persons managed to bolt away. The police recorded the statement of the prosecutrix Ext. PG/2 under Section 154 of the Code of Criminal Procedure (hereafter referred to as the Code7) on the basis of which formal ELR. Ext. PY was recorded at Police Station, Palampur under Sections 376, 341, 342, 120 -B and 34 I.P.C. and Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereafter referred to as the Act) and the investigation followed.

(3.) DURING investigation accused persons other than Ashok Kumar, who absconded and is a procLalmed offender, were arrested. A -l to A -4 were got medically examined. A -l was so examined by Dr. S.K. Bhardwaj (PW -2) who prepared and issued MLC Ext. PD opining that there was nothing suggestive of that A -l is incapable of performing sexual intercourse. However, no injuries suggestive of any struggle were found on his person. A -4 was medically examined by Dr. Jaspal Singh (PW -3) who issued MLC Ext. PE opining that there was no evidence to suggest that A -4 was incapable of performing sexual act. No injuries were found on the person of A -4 also. A -3 was medically examined by Dr. Raman Puri (PW -17) who issued MLC Ext. PR opining that there was nothing to suggest that A -3 was not capable of performing sexual intercourse. A -2 was medically examined by Dr. H.K. Vashishat (PW -20) who issued MLC Ext. PT opining that A -2 was capable of performing sexual intercourse. No injury having been found on the person of A -2 at the time of medical examination has been mentioned in the MLC. At the time of medical examination of A -2, his undergarments were preserved by PW -20 and were handed over to the police. Saliva of the accused persons was also taken by the Investigating Officer vide Memo Ext. PAA. From inside the house of Ashok Kumar an underwear lying under the pillow of the bed was also taken in possession vide Memo Ext. PH. Three bangles identified by the prosecutrix as her bangles thrown in the field by the accused were taken in possession by the police vide Memo Ext. PJ. From within the house were the prosecutrix was lastly taken by the accused persons blood stained earth and semen stains fallen on the floor, butts of Biri one Biri bundel, one pair of Chappal, one blanket and a handkerchief having semen stains and one liquor bottle were taken in possession vide Memo Ext. PL. On production by A -3 his wearing apparels, namely, one shirt and one pant which had been washed after the occurrence were taken in possession vide Memo Ext. PM. On production by A -l his pant, which he was allegedly wearing at the time of occurrence, was taken in possession vide Memo Ext. PN. Entries in the School records Ext. PP and birth record Ext. PQ and Ext. PU regarding date of birth of the prosecutrix were also taken in possession by the police. A -5 moved an application dated 31.7.1999 for bail, a photocopy whereof Ext. PS was also taken in possession. One shirt allegedly that of accused Ashok Kumar was taken in possession by the police on production by one Bhikam Ram vide Memo Ext. PZ. Rough site plans of the places of occurrence/recovery were prepared by the Investigating Officer and are Exts. PV, PW and PX.