(1.) This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (for short Cr. P.C.), is directed against judgment and order dated 14-10-2003, passed by Additional Sessions Judge/ Fast Track Court 3rd, Dehradun, in Sessions Trial No. 133 of 2002, whereby said Court has convicted the accused/appellant No. 1 Jyoti Prasad Joshi, under Sections 307 and 376 of I.P.C., and on each count he has bee sentenced to rigorous imprisonment for a period of seven years and directed to pay fine of Rs. 10,000/-. The accused/appellant No. 2 Sushila has been convicted under Section 201 of I.P.C., and instead of sentencing at once, she has been given benefit of Section 4 of Probation of Offenders Act, 1958.
(2.) Heard learned counsel for the parties, and perused the lower Court record.
(3.) Prosecution story, in brief, is that PW1 Ms. Archana used to live in village Khadri Shyampur (Delhi Farm), within the limits of Police Station Rishikesh. Her father PW 2 Sohan Lai Nautiyal was posted as Patwari in Tehsil Lansdowne (Pauri Garhwal) and her mother used to live in Village Neelkanth, in an ancestral house of the family. On 5-5-2002, the girl (PW1) aged 23 years was all alone in her house in Delhi Farm, Khadri Shyampur, as her brother Pankaj had gone to her mother's place on that day. She was preparing for her M.A. Final Examination. Accused/appellant No. 1 Jyoti Prasad Joshi was her cousin (aunt's son/BUA KA LADKA) who used to live in the neighbourhood of PW1 with his family and accused/ appellant No. 2 Sushila is his wife. It alleged that on 5-5-2002, in the wee hours, when the girl was studying, accused Jyoti Prasad Joshi who was cousin of the girl got opened the doors of her room under pretext that he had to attend the nature's call. The moment, the girl opened the door, the accused Jyoti Prasad Joshi pounced upon her and pressed her breasts. PW1 Archana resisted with all her might and there was scuffle between the two. However, the accused succeeded in grounding the girl by thrashing her down again and again in the bed and the ground. When the girl became listless, the accused committed rape on her after closing her mouth with CHUNNI (piece of cloth). The accused did not stop there, after committing the rape he again thrashed the girl on the ground and attempted to kill her by strangulating her with the help of Chunni. When the tongue of the girl started coming out, the accused treating her dead left her there and went out of the house after closing the doors from outside. After some time, the girl (P.W. 1) regained some consciousness, but the doors were closed from outside and she went to her roof by crawling through staircase, from where, she called accused/appellant No. 2 Sushila (wife of the accused/appellant No.1 Jyoti Prasad Joshi). Accused/appellant No.2 Sushila opened the door, which was bolted from outside and the victim disclosed the horrifying incident to her. Accused/appellant No. 2 Sushila though sympathized with her (P.W. 1) but advised her not to report the matter to the police and promised her that she (P.W. 1) would be given all necessary medical treatment. Sushila (accused/appellant No. 2) cleaned the floor with a wet cloth, in which there were stains of blood and also washed the blood stained clothes of the victim. Thereafter, both the accused/appellants took the victim in a three-wheeler to the Government Hospital, Rishikesh, where P.W. 4 Dr. S. Kansal examined and recorded as many as ten injuries found on the person of P.W. 1 Ms. Archana and prepared report (Ex. A3). Thereafter, accused/appellant No. 1 Jyoti Prasad Joshi sent information to the parents of the victim that she was in the Hospital due to some injuries suffered by her. On 6-5-2002, P.W. 2 Sohan Lal Nautiyal (father of the girl) came to Rishikesh, where his wife had already reached from her ancestral house. P.W. 2 Sohan Lal Nautiyal after he was told about the horrifying incident by his daughter gave First Information Report (Ex.Al) at Police Station Rishikesh on 7-5-2002, at 1.20 p.m. on the basis of which Crime No. 127 of 2002, was registered in respect of offences punishable under Section 376,307 and 201 of IPC, against the accused/ appellants Jyoti Prasad Joshi and his wife Smt. Sushila. P.W.6 Sub-Inspector B. K. Singh started investigation of the case. The girl (P.W. 1) was medically examined by P.W. 5 Dr. Susmita, a Gynecologist, who examined her private parts and prepared medical report (Ex. A4). The injuries suffered by the accused Jyoti Prasad Joshi in the alleged scuffle were examined by P.W. 3 Dr. Rakesh Kumar Bansal. Statement of the victim (P.W. 1) was said have been got recorded before the Magistrate, P.W. 7 Sub-Inspector, Bhagwati Prasad was entrusted further investigation and Investigating Officer (P.W. 6) handed over the investigation to him. On completion of investigation, charge-sheet (Ex. A12) was submitted by P.W 7 Sub-Inspector Bhagwati Prasad against the accused/ appellants Jyoti Prasad Joshi and Smt. Sushila for their trial in respect of offences punishable under Sections 376, 307 and 201 of IPC.;