YATIN KUMAR Vs. STATE OF H.P.

JUDGEMENT

(1.) THESE two appeals are being disposed of by a common judgment, as both of them are directed against the same judgment of the trial Court. Appellants in both the appeals have been convicted by the trial Court of offences of gang rape and wrongful confinement, punishable under Sections 376(2)(g) and 342 of the Indian Penal Code. For offence, under Section 376(2)(g) IPC, appellants have been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.10,000/ -each; in default of payment of fine, to undergo simple imprisonment for a further period of two years. For offence, under Section 342 IPC, they have been sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.1000/ -, each; in default of payment of fine, to undergo simple imprisonment for a further period of one month.

(2.) FIRST , the prosecution case may be noticed. On 20th April, 2005, a nun, aged about 37 years, hereinafter referred to as prosecutrix, went to PW -3 Tenzing Dolkar, employed as a health worker at Mcleodganj. She was looking depressed. On inquiry by PW -3 Tenzing Dolkar, the prosecutrix, who is a native of Tibet, told her that on 15th April, 2005 around 6 PM, when she was returning to her residence, after paying obeisance at Dalailamas Temple, she went to a fruit shop to buy oranges and that when she was looking for the oranges at the shop, the shopkeeper called her inside the shop, which was in the form of a kiosk, on the pretext that better oranges were inside the shop. She further told that as soon as she entered the shop, the shopkeeper pulled her to the inner portion of the shop and threw her on the ground and committed rape on her, after wearing a condom. She also told PW3 Tenzing Dolkar that another person stood as guard at the door when the shopkeeper was raping her. PW -3 Tenzing Dolkar is also a Tibetan. So, the prosecutrix was at ease with her in explaining and narrating the incident to her. The prosecutrix then took PW -3 Tenzing Dolkar to the fruit shop. She identified appellant Yatin Kumar as the person, who committed rape on her and the other appellant Sushil Kumar as the person, who guarded the door, when the crime was being committed by appellant Yatin Kumar. PW -3 Tenzing Dolkar knows Tibetan as also Hindi and perhaps English also. Prosecutrix knew only Tibetan language. So, PW -3 Tenzing Dolkar lodged report with the police, on behalf of the prosecutrix. The said report is Ext. PW3/A.

(3.) DURING the course of investigation, police inspected the inner portion of the shop, which had been separated by means of a plastic sheet and recovered wrapper of a condom Ext. P2. Slides of vaginal swab of the prosecutrix were prepared and sent to Chemical Examiner, who, vide report Ext. PW1/B, opined that traces of blood had been found in the vaginal swab and on the underwear of the prosecutrix.