RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1953 OF 2001 (OLD NO.1242/1992) 1. Maiku S/o Mohan Lal 2. Krishna S/o Samaidu Lal 3. Ramesh alias Tara S/o Bhagwan Das ……… Appellants Versus The State ……… Respondent Dated: May 12, 2009 Mr. B.M. Pingal, Adv. holding brief of Mr. Dharmendra Chand, learned counsel for the appellants Mr. M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This criminal appeal, preferred by the appellants u/s 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 20.05.1992 passed by Sessions Judge, Pithoragarh in S.T. No.35/1991, State Vs. Maiku and three others, whereby the learned Sessions Judge convicted the accused/appellants, namely, Maiku, Krishna and Ramesh under Sections 376, 323 r/w 34 and 392 of the Indian Penal Code, 1860 (hereinafter to be referred as the I.P.C.) and each of the accused/appellants were sentenced to ten years R.I. u/s 376 I.P.C., one year’s R.I. u/s 323 r/w 34 I.P.C. and three years’ R.I. u/s 392 I.P.C. All the sentences were directed to run concurrently. However, the co-accused Hira Lal was acquitted of the charge leveled against him by the trial court. 2. I have heard Mr. B.M. Pingal, Advocate holding brief of Mr. Dharmendra Chand, learned counsel for the appellants and Mr. M.A. Khan, learned brief holder for the State. Perused the entire material available on record. 2 3. In brief, the prosecution case is that Smt. Laxmi Devi (P.W.1) lodged the report before the Sub Divisional Magistrate, Lohaghat with the averments that her husband-Dumber Bahadur (P.W.2) and Tilak Bahadur (P.W.4) are in the employment at Delhi. On 11.6.1991, the complainant-Smt. Laxmi Devi alongwith her husband, Smt. Manni Devi and Tilak Bahadur reached Tanakpur from Delhi and there they purchased some clothes and other articles. On 12.6.1991 at 10:00 A:M they went to Thulighat by taxi. After that they went on foot towards their house Nepal and after covering a distance of 4 Kms they reached near the small temple at Purnagiri. There the accused/appellants, Maiku, Krishna and Ramesh and the co-accused Hira Lal (acquitted by the trial court) were hiding themselves by the side of a big rock. All the accused came of a sudden and with the intention to kill her husband Dumber Bahadur (P.W.2) they inflicted three knife blows on his head as a result of which he fell down. Then the accused persons and the co-accused ran to kill Tilak Bahadur (P.W.4), who fled away. On this, the accused persons pelted stone on him due to which he received injuries. He succeeded in running away from there. Thereafter, the accused/appellants and the co-accused beaten the complainant and Smt. Manni Devi. They threatened to kill the complainant and snatched the keys of box, from which they looted Rs.10,000/- cash, ear rings of one Tola gold, one Bulaki (nose ring) of half Tola gold and clothes worth Rs.4,000/-. They also looted some household articles. On the point of knife, the accused/appellant Maiku told the complainant to allow them to do sexual intercourse with her. Then the accused/appellant Maiku and two other accused made the complainant to lie on the ground and committed sexual intercourse with her one by one, due to which she became unconscious. 3 Thereafter, the accused persons went from there after taking the looted items with them. They also looted the clothes and slippers (Chappal) of her husband. They then went away after giving them threats not to go towards Tanakpur, else they will be killed. On 14.6.1991, Tilak Bahadur (P.W.4) alongwith ten persons came to find them in the forest. There they saw the complainant, her husband and Smt. Manni Devi lying in the forest in injured condition. They took the injured to their village. As there was no hospital in their village, hence, the medical examination could not be conducted. On 26.6.1991, after recovering a bit, the complainant and her husband went to Tanakpur. Then they came to know the names of the accused persons. There they were advised to lodge report at Lohaghat. With the same averments, the F.I.R. was lodged by Smt. Laxmi Devi (P.W.1) before Sub Divisional Magistrate, Lohaghat on 28.6.1991. That report is Ext.Ka-1. On 29.6.1991, S.D.M., Lohaghat informed the Nayab Tehsildar II, Champawat about the said incident and told him that one accused Maiku has been arrested. It was directed to him to arrest the rest of the accused persons. Thereafter, the Nayab Tehsildar II, Champawat ordered the Incharge Patwari Kotkendari to do necessary action in the matter. On the basis of F.I.R. (Ext.Ka-1), Patwari, Sukhidhang (I/C Kotkendari) prepared the chik F.I.R. (Ext.Ka-4) on 29.6.1991. Thereafter, the Patwari Sukhidhang (I/C Kotkendari) started the investigation. (In Rural Hilly Areas of State of Uttarakhand, the Patwaris and certain Revenue Officials are being vested with police powers vide U.P. Govt. Notification No.494/VIII-418-16 dated 7.3.1916). On 2.7.1991 at 02:40 P:M, the injured Dumber Bahadur (P.W.2) was medically examined by the Medical Officer at Civil Hospital, Tanakpur. Thereafter, the medical report of the injured was prepared, which is Ext.Ka-9. (The 4 contents of this injury report were admitted by the defence counsel). During the course of investigation, the I.O. recovered one cotton bed sheet (CHADAR), two copies written and one book of primary standard, which the complainant claimed of her own. Thereafter a FARD was prepared, i.e. Ext.Ka-2. The I.O. after inspecting the place of occurrence, prepared the site-plan, which is Ext.Ka-5. On 21.8.1991, test identification parade was held in jail to identify the accused/appellants Ramesh and Krishna and the co-accused Hira Lal (acquitted by the trial court). P.W.5 Surendra Vikram, S.D.M, Lohaghat conducted the test identification parade and thereafter the memo was prepared which is Ext.Ka-3. During the course of investigation, the I.O. also recorded the statement of the witnesses and after completing the investigation, he filed the charge sheet against the accused/appellants and the co-accused (acquitted by the trial court). That charge sheet is Ext.Ka-8. 4. Learned Chief Judicial Magistrate, Pithoragarh committed the case to the court of Sessions on 16.10.1991 after giving necessary copies to the accused/appellants and the co-accused as provided u/s 207 Cr.P.C. 5. On 29.10.1991, learned Sessions Judge, Pithoragarh framed the charge of offence punishable under Sections 323 r/w Sec. 34 I.P.C. and 392 I.P.C. against the accused/appellants Maiku, Krishna and Ramesh and the co-accused Hira (acquitted by the trial court). On the same day, the charge was also framed against the accused/appellants Maiku, Krishna and Ramesh alias Tera u/s 376 I.P.C. The charge was read over and explained to the accused/appellants and the co- accused, who pleaded not guilty and claimed to be tried. 5 6. In order to prove its case, the prosecution has examined P.W.1 Smt. Laxmi Devi-victim and the complainant of the case, P.W.2 Dumber Bahadur-injured eyewitness, P.W.3 Mohd. Yusuf, P.W.4 Tilak Bahadur- eyewitness, P.W.5 Surendra Vikram, S.D.M., Lohaghat, P.W.6 Jagdish Giri, Patwari-Investigating Officer of the case and P.W.7 Chandra Singh Manral, Kanungo- Investigating Officer of the case. 7. Thereafter the statement of the accused/appellants and the co-accused (acquitted by the trial court) were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who have denied the allegations made against them. In defence, they have not produced any oral evidence, however, in documentary evidence, document Ext.Kha-1 was filed. 8. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned Sessions Judge, Pithoragarh vide his judgment and order dated 20.5.1992, convicted and sentenced the accused/appellants as above. However, the co-accused Hira Lal was acquitted of the charge levelled against him by the trial court. Feeling aggrieved by the aforesaid judgment and order, the accused/appellants have preferred the present appeal. 9. Before further discussion, it is pertinent to mention that the injured Dumber Bahadur was got medically examined on 2.7.1991 at 02:40 P:M by the Medical Officer at Civil Hospital, Tanakpur. Thereafter, his injury report (Ext.Ka-9) was prepared. The contents of this document were admitted by the defence counsel. The 6 injury report (Ext.Ka-9) of the injured is reproduced as under:- i) 4 cm x 1 mm anteroposterior mark, 4 cm lateral to median plane on left side, posterior end and injury is in transverse plane. Injury mark is completely healed, having no hair growth. ii) 4 cm x 1 mm anteroposterior, 4 cm lateral on right side from median plane, crossing transverse plane. Injury mark is also completely healed. iii) 3 cm x 1 mm obliquely placed, convex from lower side, placed on left side of medial plane near occiput, directed downward and medially. This scar is also completely healed. iv) 1½ cm x 1 mm, 2 cm distal to distal inter digital crest in left ring finger. This wound is also healed. v) A small angular scar of injury on left index finger, point of angle directed downwards. This wound is also healed. Opinion- All above injuries are seems more than three weeks old, all injuries are simple. 10. Further to prove its case, the prosecution has examined P.W.1 Laxmi Devi, who has stated that her husband Dumber Bahadur (P.W.2) is in employment in Delhi. She stated that the said incident took place about 8 months ago. On that day, she alongwith her husband Dumber Bahadur (P.W.2), Smt. Manni Devi and Tilak Bahadur (P.W.4) reached Tanakpur from Delhi. They purchased some articles from Tanakpur and booked a taxi upto Thuligarh and at 10:00 A:M they proceeded from Tanakpur. From Thuligarh all the four persons 7 went on foot and reached near small temple at Purnagiri. When they moved 1 or 2 kms from there then the accused/appellants and co-accused met them on the way. She further deposed that the accused/appellants Krishna caused injuries to her husband by knife and the accused/appellant Hira Lal assaulted her husband with Danda as result of which her husband-Dumber Bahadur (P.W.2) became unconscious and fell down. The accused/appellants and the co-accused pelted stones on Tilak Bahadur (P.W.4) but anyhow he succeeded in running away from there. She further deposed that the accused/appellant Krishna also inflicted knife blows on Smt. Manni Devi, due to which she sustained injury on her hand and she too fell down. Thereafter the accused/appellants and the co-accused took her husband and Smt. Manni Devi near the river. The accused/appellant Maiku snatched the keys of the box from her and looted clothes, Rs.10,000/- cash, ear rings of one Tola gold and Bulaki (nose ring) of half Tola gold. She further deposed that the accused/appellant Krishna committed sexual intercourse with her and while doing so the accused Maiku was threatening her with knife. She further deposed that the accused/appellants Maiku, Krishna and Ramesh committed sexual intercourse with her one by one against her wishes. Thereafter all the accused persons went away from there after giving threats not to go Tanakpur to lodge the report, else they will be killed. While going they took the looted articles with them. After sometime her husband came in sense then she narrated the whole incident to her husband. After that they went to their house Nepal. After some days of the incident, she and her husband went to Tanakpur. There they could know the names of the accused persons. Then they lodge the report (Ext.Ka-1) of the said incident before the S.D.M., Lohaghat. Thereafter 8 she participated in the test identification parade which was held at Lohaghat jail to identify the accused persons. After that the Patwari inspected the place of occurrence and also called her there. Then she told the Patwari that in this place the accused/appellants committed rape with her and looted their articles. One cotton bedsheet, two copies and one book were recovered from the spot which she claimed of her own. The I.O. took these articles into his possession and a FARD (Ext.Ka-2) thereof was prepared. This witness was cross-examined at length by the defence counsel but nothing has come out from her statement which may create doubt in her statement. The statement of this witness is reliable and believable. 11. P.W.2 Dumber Bahadur is the injured eyewitness, who has also stated the same facts as stated by Smt. Laxmi Devi (P.W.1). 12. P.W.3 is Mohd. Yusuf, who has got a shop in the town of Tanakpur District. He has stated that the Dumber Bahadur (P.W.2) and villagers used to purchase articles from his shop. On 11.6.1991, Dumber Bahadur (P.W.2), his wife Laxmi (P.W.1), Tilak Bahadur (P.W.4) and Manni Devi purchased certain articles from his shop and also stayed in his shop in the night. Next day at 10:00 A:M they went from there. After three days of their departure some Nepali persons came and informed him about the occurrence of loot and rape with Dumber Bahadur (P.W.2) and his wife Smt. Laxmi Devi (P.W.1). After eight days, Lal Bahadur of the village of Dumber Bahadur came to him and told him the facts about the incident. On 24/25 June, Dumber Bahadur and his wife came to Tanakpur and told him about the said incident. Laxmi Devi (P.W.1) told the name of one accused/appellant Maiku who had participated in the 9 occurrence. She also told that on being shown she can identify the accused Maiku. It was also stated that Dumber Bahadur and Laxmi Devi identified the accused/appellant Maiku in Ghasiyari Mandi. Thereafter all of them alongwith one Ratan Singh Shukla went to Police Station Tanakpur. There Laxmi Devi (P.W.1) told the entire incident to the Station Officer. Then the S.O. called the accused/appellant Maiku and inquired about the other accused persons. The accused/appellant Maiku disclosed the names of three other accused persons which was noted by Dumber Bahadur (P.W.2). The S.O. then advised them to lodge the report at Lohaghat Police Station. 13. P.W.4 Tilak Bahadur is the eyewitness of the case, who has also stated the facts like two other witnesses-Laxmi Devi (P.W.1) and Dumber Bahadur (P.W.2). 14. P.W.5 is Surendra Vikram, Sub Divisional Magistrate, Lohaghat, who has stated that on 21.8.1991 he was posted as S.D.M., Lohaghat. On that day, the test identification parade was conducted under his supervision at Judicial Lock-up, Lohaghat. The witnesses Dumber Bahadur (P.W.2) and Smt. Laxmi Devi (P.W.1) participated in that parade. The witness Dumber Bahdur rightly identified the accused Ramesh, Krishna and Hira Lal and the witness Smt. Laxmi Devi identified the accused Ramesh and Krishna. At the time of identification, the identification memo (Ext.Ka-3) was prepared by him. It was got signed by the witnesses Laxmi Devi (P.W.1) and Dumber Bahdur (P.W.2). 15. P.W.6 is Jagdish Giri, Patwari, who has stated that on 29.6.1991 he was posted as Patwari, 10 Sukhidhang. He was also In-charge of Patwri, Kotkendari. On that day at 02:00 P:M he received the report (Ext.Ka-1) and on the basis of that report he prepared the Chik F.I.R. (Ext.Ka-4). During the course of investigation, he recorded the statement of the witnesses, prepared the site-plan (Ext.Ka-5) of the place of occurrence and a FARD (Ext.Ka-6) in respect of the inspection of the place of occurrence was also prepared. He recovered one cotton shawl, two copies and one book of primary standard from the place of occurrence. Thereafter a FARD (Ext.Ka-2) was prepared by him. The complainant claimed these articles of her own. On 2.7.1991, the investigation of the case was transferred to Supervisor Kanungo. 16. P.W.7 is Chand Singh Manral, Kanungoo, who has stated that on 2.7.1991 he was posted as Kanungoo, Amodi. On that day, investigation of this case was transferred to him. During the course of investigation, he recorded the statement of the witnesses and arrested the accused/appellants. After completing the investigation, he filed the charge sheet (Ext.Ka-8) against the accused/appellants and the co-accused (acquitted by the trial court). 17. After that the statement of the accused/appellants and the co-accused (acquitted by the trial court) were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who have denied the allegations made against them. In defence, they have not produced any oral evidence, however, in documentary evidence, document Ext.Kha-1 was filed. 18. Learned counsel for the accused/appellants has argued that the prosecution has not proved its case 11 against the accused/appellants beyond reasonable doubt under Sections 376, 323 r/w 34 and 392 IPC. I do not find force in the argument advanced by learned counsel for the accused/appellants as P.W.1 Laxmi Devi has stated in her statement that on the date of incident she alongwith her husband Dumber Bahadur (P.W.2), Smt. Manni Devi and Tilak Bahadur (P.W.4) reached Tanakpur from Delhi. They purchased some articles from Tanakpur and booked a taxi upto Thuligarh and at 10:00 A:M they proceeded from Tanakpur. From Thuligarh all the four persons went on foot and reached near small temple at Purnagiri. When they moved 1 or 2 kms from there then the accused/appellants and co-accused met them on the way. She further deposed that the accused/appellant Krishna caused injuries to her husband by knife and the accused/appellant Hira Lal assaulted her husband with Danda as result of which her husband-Dumber Bahadur (P.W.2) became unconscious and fell down. The accused/appellants and the co-accused pelted stones on Tilak Bahadur (P.W.4) but anyhow he succeeded in running away from there. She further deposed that the accused/appellant Krishna also inflicted knife blows on Smt. Manni Devi, due to which she sustained injury on her hand and she too fell down. Thereafter the accused/appellants and the co-accused took her husband and Smt. Manni Devi near the river. The accused/appellant Maiku snatched the keys of the box from her and looted clothes, Rs.10,000/- cash, ear rings of one Tola gold and Bulaki (nose ring) of half Tola gold. She further deposed that the accused/appellant Krishna committed sexual intercourse with her and while doing so the accused/appellant Maiku was threatening her with knife. She further deposed that the accused/appellants Maiku, Krishna and Ramesh committed sexual intercourse with her one by one against her wishes. 12 Thereafter all the accused persons went away from there after giving threats not to go Tanakpur to lodge the report, else they will be killed. While going they took the looted articles with them. After sometime her husband came in sense then she narrated the whole incident to her husband. After that they went to their house Nepal. After some days of the incident, she and her husband went to Tanakpur. There they could know the names of the accused persons. Then they lodge the report (Ext.Ka- 1) of the said incident before the S.D.M., Lohaghat. The statement of Laxmi Devi (P.W.1) finds full support from the statement of her husband Dumber Bahadur (P.W.2), Mohd. Yusuf (P.W.3) and Tilak Bahadur (P.W.4). Besides this, injury report (Ext.Ka-9) of the injured Dumber Bahadur (P.W.2) also corroborate the facts mentioned in the F.I.R. As such, in view of the aforesaid discussion, it is clear that the accused/appellants Maiku, Krishna and Ramesh not only assaulted Laxmi Devi (P.W.1), Dumber Bahadur (P.W.2), Tilak Bahadur (P.W.4) and Smt. Manni Devi but they also looted the articles from Smt. Laxmi Devi (P.W.1) and committed rape with her one by one against her wishes. In this way, the accused/appellants Maiku, Ramesh and Krishna committed offence punishable under Sections 323 r/w 34, 392 and 376 I.P.C. 19. Thus, in view of the aforesaid facts and circumstances of the case, the prosecution has proved its case against the accused/appellants Maiku, Krishna and Ramesh beyond reasonable doubt under Sections 323 r/w 34, 392 and 376 I.P.C. and I concur with the view taken by the trial court in convicting and sentencing the accused/appellants under the aforesaid sections. 13 20. For the reasons recorded above, the appeal is dismissed. The judgment and order dated 20.05.1992 passed by Sessions Judge, Pithoragarh in S.T. No.35/1991, State Vs. Maiku and three others, is hereby affirmed. Consequently, the conviction and sentence imposed upon the appellants by the trial court are also affirmed. The accused/appellants Maiku, Ramesh and Krishna are on bail. Their bail bonds are cancelled. Let them be taken into custody forthwith in order to serve out the sentence as directed by the court below against them. 21. A copy of this order shall be sent forthwith to the trial court concerned for compliance of the order. (Dharam Veer, J.) May 12, 2009 RG