Decided on April 17,2013

Jeewan Singh Chilwal Appellant


Servesh Kumar Gupta, J. - (1.) BOTH the above titled cross -appeals arise from the same judgment and order, so are being adjudicated by this single judgment.
(2.) ACCUSED convict Jeewan Singh Chilwal was found guilty by learned Additional Sessions Judge/Ist FTC, Nainital vide his judgment and order dated 17/21.12.2011 passed in Sessions Trial No. 41/2010, State v. Jeewan Singh Chilwal. He was tried for the offence of Section 376(2)(d) IPC. However, he was found guilty of offence under Section 376D IPC. Learned Trial Judge has awarded the maximum sentence as envisaged under the Penal Code for the offence of Section 376D IPC and sentenced him to five years' rigorous imprisonment nay a fine of Rs. 5,000/ -. In default of payment of fine, convict has been directed to undergo six months' simple imprisonment. The prosecution story in brief is that Ganga Prasad Sati (informant) admitted his wife Smt. Pushpa Sati in Ganesh Bone Hospital, Haldwani on 3.1.2010 for her medical treatment because she was ailing in her spine. In the intervening night of 3/4.1.2010 at about 11 PM., he called the night duty attendant in the hospital for giving medicine to his ailing wife. The attendant Jeewan Singh Chilwal came and, on the pretext of need of new medicine to be fetched from the market, he sent Ganga Prasad Sati out of the hospital. Mr. Sati went to the market to purchase the medicine prescribed by the night duty attendant Jeewan Singh Chilwal. Finding Smt. Pushpa Sati alone lying on the bed, Jeewan Singh Chilwal bolted the door from inside and committed rape upon her. When Ganga Prasad Sati returned to the room of his wife, Jeewan Singh Chilwal was coming out of the room and he found his wife weeping. On being asked his wife explained everything that she was raped by Jeewan Singh Chilwal, who was leaving the room just then. Ganga Prasad Sati lodged the FIR on 4.1.2010 at 10.30 AM. The chick report whereof is Ex. Ka -1. The police came and recovered the bed sheet and petticoat of Smt. Pushpa Sati, which were found seamen -stained. Lateron on 4.1.2010 it self the accused was also arrested and his underwear was also taken into custody. All the three articles were sent to forensic science laboratory, the report whereof is Ex. Ka -11. All the three items were found seamen -stained by the scientist. The lady was also medically examined on 4.1.2010 at about 2.10 PM. Since she was the mother of two children, and could not resist physically with force to the culprit because of her spine injury, so sign of resistance was not found on her body, but her vaginal smear when examined by the pathologist in the laboratory, then spermatozoa were found present in the same. Investigation culminated into submission of the chargesheet against the accused for the offence of Section 376(2)(d) IPC, which is Ex. Ka -10 and the charge was accordingly levelled against the accused and he was put to trial.
(3.) PW 1 Constable Anand Kumar is the formal witness. He was posted in the Police Station Haldwani on 4.1.2010. He has written the FIR in the General Diary of the Police Station and has proved the same.;

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