IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 962 of 2001 1. Samson Peter 2. Rajnish @ Titu 3. Pappu Pokhariyal ………. Appellants Versus State of Uttranchal (Now ‘Uttarakhand’) ……. Respondent Present : Sri Ravindra Singh Bisht, Amicus Curiae for the appellants. Sri M.A. Khan, Brief holder for the State/respondent. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Servesh Kumar Gupta, J. Per : Hon’ble Praffulla C. Pant, J. (Oral) This appeal, preferred under section 374 of the Code of Criminal Procedure, 1973 (for short CrPC) is directed against the judgment and order dated 08.06.2001, passed by Additional Sessions Judge/II F.T.C., Dehradun in Sessions Trial No.101 of 1998, whereby accused appellants Samson Peter, Rajnish @ Titu, Pappu Pokhariyal and one co-accused Vijay have been convicted under Section 366/34 and 376(2)(g) of the Indian Penal Code, 1860 (for short IPC), and each one of them has been sentenced to rigorous imprisonment for a period of seven years and directed to pay a fine of Rs. 5,000/- under Section 366/34 IPC, and imprisonment for life and also directed to pay fine of Rs. 10,000/- under Section 376(2)(g) IPC. 2 2. Heard learned Amicus Curiae for the accused appellants and learned Brief holder for the State, and also perused the trial court record. Though appellants had engaged two private counsel but they did not turn up for hearing, on which Amicus Curiae was appointed to assist the Court on the last date, and he was provided the paper book. Today again, none of the Counsel for the accused appellants turned up and learned Amicus Curiae assisted the Court on behalf of the appellants. 3. Prosecution story, in brief, is that PW1 Smt. ‘A’ (being the victim, her name is withheld) is a widowed lady, who used to run a tea stall at Haridwar Road, Dehradun. She was in her thirties. On 22.04.1998 at about 8 pm, after closing her shop, when she was waiting for a conveyance to go her home, accused Vijay who was driving three wheeler (Vikram) bearing registration no. ‘U.P. 07 G 879’ stopped. In the said vehicle, accused appellants Pappu Pokhariyal, Rajnish @ Titu and Samson Peter were also sitting. Since earlier also, the victim (PW1 Smt. ‘A’) had gone in the said three wheeler, she had no hesitation in boarding it to go to her home. But the accused Vijay after sometime started taking the three wheeler towards Rajpur Road, on which she protested but the three accused appellants whipped out knife and pistols and closed her mouth. The four accused (including the present three accused appellants) took the three wheeler up to Sattai Anarwala, and from there dragged her to the ruined building of New Rajkamal/Neel Kamal Cinema, situated in a deserted and isolated place. There all the four accused raped the victim (PW1 Smt. ‘A’) one by one. They kept her mouth closed and she was unable to shout. After the four accused (including the present appellants) committed rape on her and her mouth got opened, she 3 shouted for help. The culprits leaving her ran away. PW1 Smt. ‘A’ immediately went to Police Station, Cantt. and gave First Information Report (Ex. A-1), on the basis of which Crime No. 39/1998 relating to the offences punishable under section 376 IPC against all the four accused Vijay, Samson Peter, Pappu Pokhariyal and Rajnish @ Titu was registered at 23.30 hrs (11.30 pm) on the very day (22.04.1998). She was taken by the police to Mahila Hospital, Dehradun where she was medically examined by PW3 Dr. Renu Negi at about 02.10 am. (in the intervening night of 22 and 23 April, 1998). The Medical Officer found two external injuries on the body of victim. Vaginal smear was taken for histopathology and injury report (Ex. A-2A) was prepared by the said Medical Officer. On pathological examination also, though no definite opinion as to rape was given, but it was reported that the smear taken for pathological examination contained dead spermatozoa, indicative of occurrence of sexual intercourse previously. 4. The crime was investigated by PW5 Sub Inspector P.K. Singh, who interrogated the victim, investigated the spot, prepared the site plan and on completion of investigation submitted the chargesheet (Ex. A-9) against all the four accused, namely, Vijay, Pappu Pokhariyal, Rajnish @ Titu and Samson Peter. Meanwhile, the Investigating Officer got recorded statement of victim (PW1 Smt. ‘A’) under section 164 CrPC on 28.04.1998 before Additional Chief Judicial Magistrate III, Dehradun. 5. On receipt of the chargesheet, the Magistrate concerned (Additional Chief Judicial Magistrate II) committed the case to the court of Sessions for trial after 4 giving necessary copies to the accused as required under section 207 CrPC. 6. On 24.09.1998, learned trial court after hearing the parties, framed the charges of offence punishable under section 366/34 and 376(2)(g) IPC against all the four accused, namely, Vijay, Pappu Pokhariyal, Rajnish @ Titu and Samson Peter, who pleaded not guilty and claimed to be tried. On this, prosecution got examined PW1 Smt. ‘A’ (victim and complainant), PW2 Suresh Chandra Agarwal (declared hostile), PW3 Dr. Ranu Negi who medically examined the victim, PW4 Constable Som Singh who prepared check report and made entries in General Diary relating to the FIR and PW5 S.I. P.K. Singh who investigated the crime. 7. The oral and documentary evidence were put to all the accused under Section 313 CrPC, in reply to which they alleged the same to be false. They pleaded that they have been falsely implicated due to enmity. However, no evidence in defence was adduced. The trial court after hearing the parties found all the four accused (including the present appellants) guilty of charge of offence under section 366/34 and 376 (2)(g) IPC. After hearing the parties on sentence, each one of the convicts was sentenced to rigorous imprisonment for a period of seven years and directed to pay fine of Rs. 5,000/- under section 366/34 IPC, and imprisonment for life along with fine of Rs. 10,000/- under section 376(2)(g) IPC. Aggrieved by the aforesaid judgment and order dated 08.06.2001, passed by Additional Sessions Judge/II F.T.C., Dehradun in Sessions Trial No.101/98, this appeal was filed by the 5 three convicts, namely, Pappu Pokhariyal, Rajnish @ Titu and Samson Peter. 8. Before further discussion, we think it just and proper to mention the external injuries recorded by PW3 Dr. Renu Negi, who medically examined the victim in the intervening night of 22nd and 23rd April, 1998 at 02.10 am in Mahila Hospital, Dehradun. Said injuries are reproduced below from injury report Ex. A-2A:- “(1) One scar at left middle finger at meta carpal joint. 1/3 cm in length, fresh injury. (2) At palmer aspect of left wrist fresh injury appears to be caused by nail. No other mark of injury in her body. 2-3 old healed scratch mark on the inner aspect of left thigh. Local Examination : No other mark of injury on her private part. Vagina admits 2 fingers easily. Hymen old torn. Uterus AV……. Vaginal smear taken & sent for histopathology. Opinion: No definite opinion about rape can be given. Final opinion shall be given after pathology report.” 9. Pathology report is Ex. A-3 on the record, which shows that large number of spermatozoa (dead) were seen in the vaginal smear. The supplementary medical report, prepared by PW3 Dr. Renu Negi on the basis of the pathology report is Ex. A-4, wherein she has opined that no definite opinion about rape can be given, but presence of dead spermatozoa indicated occurrence of sexual 6 intercourse previously. She has stated in cross- examination that though spermatozoa can survive for 48 hours in vaginal canal but after pathological slide is dry they get dead. Having gone through the medical evidence on record, we find that the medical reports including the pathology report are indicative of forceful sexual intercourse with the victim on 22.4.1998. 10. PW1 Smt. ‘A’ (aged 38 years on the date of making her statement on 22.2.2001) has stated that she is resident of house no. 9, Nimbu Wala, Garhi Cantt. Her husband used to run a tea stall on Hardiwar road. After death of her husband, she used to run the shop. It is further stated by her that on the day of incident, she closed her shop as usual at 8 pm and started waiting for ‘Vikram’ (a three wheeler). The witness further narrates that after sometime accused Vijay stopped his ‘Vikram’. Accused appellant Samson Peter was also sitting in the ‘Vikram’. She boarded the three wheeler as Vijay told her that he was going towards the side of her home. Two other accused, namely, Pappu Pokhariyal and Titu also boarded the ‘Vikram’. PW1 Smt. ‘A’ further states that after sometime accused started taking the three wheeler towards Rajpur road, on which she protested. According to this witness, accused/appellants whipped out KHUKHRI (a knife) and countrymade pistols and gagged her mouth. They took her towards the ruined building of Nilkamal/Rajkamal Picture Hall in Garhi Cantt. The victim further states that there all the four accused one by one committed rape on her. She also proved First Information Report Ex. A-1 lodged by her at the police station after the incident in the same night. PW1 further told that she was also taken to hospital for medical examination in the night itself. She has also 7 corroborated that her statement was recorded by the Magistrate which is Ex. A-2 on the record. The victim (PW1 Smt. ‘A’) has been subjected to lengthy cross- examination but nothing has come out in her statement which shakes her testimony. Her statement is natural and trustworthy. In the cross-examination, she has further disclosed that all the four accused including Vijay Thapa were (Vikram) drivers. She has further told that she knew them as they used to ply ‘Vikrams’ on the same road. She has further stated in the cross-examination that the accused did not let her shout for help. The suggestions given by the defence counsel to this witness (PW1 Smt. ‘A’) show that all the four accused were involved in the incident. The defence counsel has put the question that the accused did not had sexual intercourse against the wishes of victim, rather she had asked for Rs. 300/- from each one of them. 11. Learned Amicus Curiae submitted that in the First Information Report, the complainant/victim has mentioned that after the incident when she raised alarm, Suresh Agarwal and Mahendra Singh came there, out of whom Mahendra Singh was not examined and PW2 Suresh Agarwal has turned hostile. We have considered the said argument. It is not the case of prosecution that either Suresh Agarwal or Mahendra Singh saw the victim being raped. As such, non-examination of Mahendra Singh or turning hostile on the part of Suresh Agarwal (PW2) does not create any reasonable doubt in the prosecution story. 12. Next, it is pointed out on behalf of the accused appellants that there is contradiction in the statement given by the victim before the court and one recorded by 8 the Magistrate. We have carefully gone through the story narrated in the First Information Report which was lodged immediately after the incident, the statement recorded under Section 164 CrPC and the statement recorded by the trial court. In substance, the story remains the same. There is no contradiction in the story narrated in the First Information Report and the one given before the trial court, which creates doubt in the testimony of the victim. 13. Having re-assessed the entire evidence on record, and after hearing the learned Amicus Curiae and learned Counsel for the State, we do not find any force in this appeal so far as the conviction recorded by the trial court against the accused appellants Samson Peter, Rajnish @ Titu and Pappu Pokhariyal. On the point of sentence, learned Amicus Curiae submitted that harshest punishment have been awarded by the trial court. Considering the facts and the circumstances of the case, we find no scope for interference so far as the sentence awarded by the trial court to the accused appellants under Section 366 read with Section 34 IPC. However, the sentence for imprisonment for life awarded to each one of the accused appellants under Section 376(2)(g) IPC is concerned, we are of the view that it deserves to be reduced to rigorous imprisonment for a period of ten years, which would meet ends of justice. 14. In the result, the appeal is dismissed so far as the conviction of the accused appellants Samson Peter, Pappu Pokhariyal and Rajnish @ Titu relating to charge of offence punishable under Section 366/34 IPC and 376(2)(g) is concerned. Sentence recorded by the trial court under Section 366/34 IPC is also maintained. 9 However, the sentence awarded under Section 376(2)(g) IPC is reduced from imprisonment for life to rigorous imprisonment for ten years in respect of each one of the accused appellants, without disturbing the fine imposed on that count. To that extent in the sentence only, the appeal stands allowed. Both the sentences shall run concurrently. The appellants, namely Samson Peter, Pappu Pokhariyal and Rajnish @ Titu are on bail. Their bail is cancelled. Let copy of this judgment and order along with the lower court record be sent back to the trial court to make the accused appellants serve out the sentence as modified by this Court. (Servesh Kumar Gupta, J.) (Prafulla C. Pant, J.) 25.4.2011 25.4.2011 Prabodh