- (1.) This appeal has been preferred against the judgment and order dated 6.1.2011/25.2.2011, passed by the High Court of Himachal Pradesh at Shimla in Criminal Appeal No. 178 of 2000. Convicting the Appellants under Section 376(2)(g) read with Section 34 of the Indian Penal Code 1860 (hereinafter referred as 'Indian Penal Code'), however, acquitting them for the offences punishable under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced each of them to undergo R.I. For 7 years and a fine of Rs. 10,000/- each and in default of payment of fine each of them shall further undergo an imprisonment for one year. The High Court has reversed the judgment and order of the trial Court dated 22.12.1999, passed by the learned Sessions Judge, Kangra in Sessions Case No. 39-J/VII/98 by way of which and whereunder the Appellants stood acquitted of all the charges.
(2.) Facts and circumstances giving rise to this appeal are: A. That Smt. Sarla Devi (PW.1), wife of Shri Harnam Singh (PW.4) having four children belonging to Scheduled Tribes community alleged that on 23.1.1998 at about 6.30 p.m. The Appellants who are residents of the same village had caught hold of her while she was returning from the work, took her in the agricultural field having the wheat crops. Karam Chand gagged her mouth with his hands. Thus, she could not raise hue and cry. He forcibly removed the string of her Salwar and committed rape on her. He was followed by Accused Ramesh. Accused Pinta remained standing as guard. Thereafter, all the three left the place and the prosecutrix went to her house. B. That after some time, her husband Harnam Singh (PW.4) who had gone to purchase the medicine returned at about 8 p.m. at their residence. The prosecutrix disclosed the incident to him. Thereafter, both of them went to the police station and lodged the FIR Ex. PA. The police took the prosecutrix immediately for medical examination to Dr. Sushma Sharma (PW.2) in the Community Health Centre. She was medically examined and the doctor found that though the prosecutrix did not have any injury on her private parts but she found discharge present in the vulva portion. Her Salwar was also having stains. The wearing apparels of the prosecutrix were sealed and handed over to the police by the doctor. The doctor also took sample of pubic hair and vaginal smear slides which were sealed and handed over to the police for semen analysis/examination to Chemical Examiner. Doctor did not rule out the possibility of sexual intercourse but reserved final opinion till chemical examination report was received. C. On 24.1.1998 in the morning at 11.30 a.m. Daya Nand, S.I. (PW.7) arrested the Appellants and got them medically examined. He also prepared the site plan and found that the wheat crops had been crushed out at the place of occurrence. Some residential houses were at a distance of about 150 yards from the place of occurrence. D. After investigation, the charge-sheet was filed against the Appellants and the trial commenced. Witnesses were examined by the prosecution before the trial Court including that of the prosecutrix (PW.1), her husband Harnam Singh (PW.4), Dr. Sushma Sharma (PW.2), Investigating Officer Daya Nand, S.I. (PW.7) and other formal witnesses. The trial Court doubting the exact correctness of the site plan had an inspection of the site and prepared its own site plan and doubting the prosecution witnesses found the evidence of the prosecution witnesses having lot of contradictions/improvements etc. and acquitted all the Accused/Appellants. E. Aggrieved by the order of the trial Court dated 22.12.1999, the State of Himachal Pradesh preferred the appeal before the High Court by way of which the Appellants stood convicted and sentenced as referred to hereinabove. Hence, this appeal.
(3.) We have heard Shri Bahar U. Barqi, learned Counsel for the Appellants and Shri Ajay Marwah, learned Counsel for the Respondent-State and perused the record.;