(1.) One Dharmendra Kumar s/o Sheovir Singh r/o Village Padla, P.S. Kiratpur, District Bijnor, lodged complaint at Police Station Kotwali City, Haridwar, that he was running a shop of tailor along with his brother Surendra at Mohalla Mehtan, P.S. Jwalapur and was residing at Jwalapur on rent. His shop was known as Mamtesh Tailor. His sister Km. Mamta, aged about 14 years, was residing with him and was studying in class X in Vidya Mandir School, Sector 1, Ranipur. On 01.01.1998, when she was coming from the village, she met accused Udal at Najibabad, who was serving in the shop of Munesh in her village. Udal was also coming to Haridwar by the same bus. When Mamta reached at Bus Stand, Haridwar at about 4:40 p.m., she informed him (brother Dharmendra) telephonically to come to Bus Stand, as some people were victimizing her. On receiving such information, he along with his brother Surendra reached at Bus Stand, but they did not find their sister. Then he, his brother Surendra along with Gopal Kumar and Sunder Lal started making a search for the victim. A woman working in PCO and some rickshaw pullers informed them that Virendra Kumar, who was the Manager of Hotel Jahnavi and Arjun Singh Negi, who was the Manager of Neelam Hotel, kidnapped and took her forcibly by scooter on knifepoint. When they reached at Hotel Neelam, then they were informed that Virendra Kumar along with Dharam Pal Dhaneja, owner of Neelam Hotel carried his sister to Siddhartha Lodge at Shravan Nath Nagar by a scooter. They went to Siddhartha Lodge. When they reached at Shiv Murti Chauraha, informant found his sister Mamta in Jassaram road, who told him that Virendra Kumar and Arjun Singh forcefully kidnapped her from Bus Station and brought her at Hotel Neelam. Virendra Kumar and Dharampal Dhaneja committed rape with her in room no.9 of the Hotel where Pawan Ghai, owner of Hotel Jahnavi, Arjun Singh and Ramesh Singh were consuming liquor. They threatened on knifepoint that if she shouted, they will finish her off and throw her in river Ganges. After committing rape, they handed over his sister to Kundan Singh, Manager of Siddhartha Lodge in unconscious state. When she regained consciousness, his sister came out from the room. They found her near Shiv Murti. She was weeping. These people committed rape with his sister on knifepoint.
(2.) On the basis of said FIR, investigation began and when the investigation was completed, a charge sheet against the accused persons was submitted in relation to the offences punishable under Sections 363, 376(2)(g), 342, 506, 114 & 120B IPC. When the trial began, charges against the accused persons, namely, Virendra Kumar s/o Bhopal Singh, Dharampal Dhameja s/o Sajan Kumar, Pawan Ghai s/o Kapuri Lal, Ramesh s/o Pradeep, Arjun Singh s/o Anand Singh, Kundan Singh s/o Bal Chandra and Udal s/o Khushi Ram were framed in respect of offences punishable under Sections 363, 376(2)(g), 342, 114, 120B & 506 IPC, to which they pleaded not guilty and claimed trial. Seven prosecution witnesses, viz., PW1 Km. Mamta, PW2 Dharmendra Kumar, PW3 Gopal Kumar, PW4 Doctor Manisha Agarwal, PW5 Doctor R.K. Pandey, PW6 SI Inder Singh and PW7 Head Constable Anand Prakash were examined. Incriminating evidence was put to the accused persons under Section 313 Cr.P.C., in which they said that they were falsely implicated in the case. Three defence witnesses, namely, DW1 Kewal Krishna, DW2 Kali Charan and DW3 Smt. Ajeet Pal were examined in defence. After the trial was concluded, learned trial court acquitted Dharam Pal Dhameja, Pawan Ghai, Ramesh, Arjun Singh and Kundan Singh of the charges levelled against them. Accused / appellants Virendra Kumar and Udal were convicted of the offences punishable under Sections 376(2)(g) and 342 IPC and were sentenced appropriately. They were however, acquitted of the charges punishable under Sections 363, 506, 114 & 120B IPC. Aggrieved against their conviction, accused appellants Virendra Kumar and Udal preferred present Criminal Appeals.
(3.) PW1 Km. Mamta (prosecutrix) said in her examination-in-chief, that on 01.01.1998, she was coming from her village to Jwalapur. When she reached at the bus stand, Haridwar, appellant Udal, who was accompanying her from Najibabad, told PW1 to stay there for 5-10 minutes. He said that he was coming very soon. It was around 04:30 p.m. Virendra and Ramesh came with him. Appellant Virendra told her that he was her maternal uncle. PW1 Mamta rang his brother up from a PCO. While she was talking to her brother Surendra, accusedappellant Virendra took out a knife and forced her to sit on a scooter outside PCO Booth. She fell from the scooter after covering a short distance. She sustained injury in her ankle. She was made to sit in a rickshaw. She was flanked by Udal and Virendra, who were carrying knives in their hands. Ramesh followed them in a scooter. They took her to Neelam Hotel. She tried to run away, but Virendra and Udal caught hold of her and took her forcibly inside a room. Udal left the room taking an excuse that he was going to bring tea. Thereafter, Udal did not come. Ramesh and Virendra started taking liquor. Virendra committed rape with her. She cried, but Ramesh silenced her by showing knife. Virendra threatened that she will be strangulated and thrown in the Ganges. Virendra had sexual intercourse with her forcibly. He also kissed her (against her wishes). She got fainted. When she regained consciousness, she found her in another hotel where she was lying on a bed. In the night, she came out of hotel room. Nobody was there. She came running to Shiv Murti Chowk, where her elder brother Dharmendra met. It was 01:30 a.m. She disclosed the entire incident to her brother, who took her to Police, who gave her in the supurdagi (custody) of her brother. In between, she was medically examined. Her wearing apparels were taken by the Police. Her statement was also taken by the Magistrate. She identified appellant Udal and Virendra in the court. In the cross-examination, she said that she knew Udal for the last few days (of deposition). She went to tuition for 5-6 days in Kiratpur. She was studying in BHEL Vidya Mandir in Class X, when the incident took place. She proceeded from Kiratpur to board on bus alone at 01:00 p.m. Udal did not board from Kiratpur but he boarded from Najibabad. She did not know whether Udal was coming to Haridwar or not She also said that she did not have sexual intercourse before this incident. She resisted rape. She tried to defend herself and in the process, she received abrasions. When the accused persons lifted her, she could not understand the purpose for which she was being taken. She saw Virendra at the bus station for the first time. Since she was frightened, therefore, she did not raise alarm. She did not find any policeman there. She tried to make noise in Neelam Hotel but she did not cry in Siddhartha Hotel. When her brother took her to the Police Station, it was 01:30 a.m. It took two hours to get her medically examined in the hospital. Thus, nothing came in the cross-examination of the prosecutrix so as to indicate that she was telling a lie and the appellants were falsely roped in. Prosecutrix had no malice against appellants. There was definite allegation of sexual intercourse against her wishes (rape) against appellant Virendra. Virendra inserted his male organ inside the female organ of the victim and therefore, the charge of rape against appellant Virendra stands proved, subject to other evidence, which will be discussed on a subsequent occasion in the body of the judgment. Since there is no allegation of rape against Udal, therefore, he is liable to be exonerated of the offence of rape. Since he put prosecutrix / victim in confinement, therefore, he is liable to be convicted of the offence punishable under Section 342 IPC. Further, since only one appellant committed rape, therefore, the offence complained of cannot be termed as gang rape . Appellant Virendra alone is liable to be held guilty of committing rape.;