- (1.) 1st. Additional District and Sessions Judge, Jammu convicted the Appellant -accused in Sessions case 61/90 on the file of the trial court for offences under Sections 376 and 304 RPC vide judgment dated 15 -09 -1992 on record. Under order of September 16, 1992, each of the two accused was sentenced to undergo rigorous imprisonment for five years besides being fined Rs. 1000/ - (in default for a further period of two months) separately under Sections 376 RPC and 304 RPC. Both sentences were ordered to run concurrently. Against this judgment and orders of conviction and sentence, instant appeal has been filed.
(2.) BEFORE coming to the grounds of challenge and analysis of the prosecution case to find out if the judgment and order of conviction and sentence, in the facts and circumstances of this case, on appreciation of evidence can be sustained or not, the prosecution case meriting to be taken notice of is as under: -
(3.) DECEASED Kailasho Devi, with her husband Chander Bhan, both hailing from Pothkalan Delhi, reached the ËœBhawanâ„¢ of Shri Mata Vaishno Devi on late hours of July 13, 1985. Following day in the morning, Kailasho Devi fell ill and was examined by Bhawan Doctors, who advised her rest. On 15 -07 -1985, she with her husband had a darshan but soon thereafter (Sic) was sick and fainted for a while. The doctor at the Bhawan dispensary advised Chander Bhan to take his wife to Pry. Health Centre Katra. Medical officer at Katra, on examination of the lady and giving her some injection, advised her husband to take his wife Kailasho Devi to Jammu and for the purpose he referred her to SMGS Hospital, Jammu. On same day at around 10.30 P.M. they reported at the causality of SMGS Hospital Jammu. The doctor on duty in causality examined her and she was given some injectable medicine and thereafter admitted and referred to ward 17 of the hospital. It is alleged, that Dr. Hardev Singh alias Beeru, accused No. 2, managed to keep her in Doctors Duty Room, adjacent to Ward No. 16. This he did in connivance with accused No. 1. Dr. Wajid Ali, separated Kailashoo Devi from her husband, Chander Bhan, when the later was not allowed to sleep with her and was forced out of the room only to stay in adjacent varandha. Both the accused did all this with the intention of sexually violating Kailashoo Devi. Both Doctors had sexual intercourse with her. In order to wrap up the incident under veil of secrecy, accused Dr. Wajid Ali informed Chander Bhan at about 3 AM that his wife had urinated in the room and asked him to take her in Ward. When Chander Bhan entered the room to his surprise, he found her lying unconscious. Her ËœShalwarâ„¢ had been untied and the top beltridge of the Shalwar (trouser) was at her knee. There were some dirty stains on the bedding. He refused to take her to the Ward. The said Doctor took her to the Ward. The husband informed the authorities of the hospital what he saw and expressed the fear that the two Doctors had sexually abused her and violated her modesty. On 16th July, 1985, Doctors of Ward 17 discharged her in the afternoon as he wanted better treatment of his wife, possibly at Delhi. When a few steps away enroute to railway station, his wife Kailashoo Devi fainted and her condition became serious, he reported the matter to doctors, who rushed her to Intensive Care Unit of the said hospital, but at about 4 P.M., she was declared dead. The death of Kailashoo Devi, who was already diseased was accelerated by the act of the accused in violating her sexually, thereby the accused were not only guilty of rape, but also of calpable homicide.;