V.K. Bist, J. -
(1.) THIS appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C), is directed against the judgment and order dated 29.05.2004 passed by 1st F.T.C./Addl. Sessions Judge, Roorkee, District Haridwar in Sessions Trial No. 332 of 2002 'State v. Gautam and others', whereby accused/appellant Gautam has been convicted under Sections 363, 366 and 376 of the Indian Penal Code, 1860 (for short I.P.C.) and has been sentenced to undergo rigorous imprisonment for four years with fine of Rs. 500/ - under Section 363 I.P.C. and in default of payment of fine simple imprisonment for six months, rigorous imprisonment for five years with fine of Rs. 500/ - under Section 366 I.P.C. and in default of payment of fine simple imprisonment for one year, rigorous imprisonment for seven years with fine of Rs. 500/ - under Section 376 I.P.C. and in default of payment of fine further imprisonment for one year. The appellant Smt. Mithlesh has been convicted under Sections 363 and 366 I.P.C. and has been sentenced to undergo rigorous imprisonment for two years with fine of Rs. 500/ - under Section 363 I.P.C. and in default of payment of fine simple imprisonment for three months, rigorous imprisonment for three years with fine of Rs. 500/ - under Section 366 I.P.C. and in default of payment of fine simple imprisonment for six months.
(2.) HEARD learned counsel for the parties and perused the Lower Court's Record. The facts, leading to the appeal, are that on 13.05.2002, Palla -complainant (father of Km. Hema -the victim) submitted a typed written application before Circle Officer, Police Manglaur, Rodrkee, District Haridwar with the assertion that on 5th May, 2002 at around 11:00 a.m. he had gone to jungle. At that time, appellant No. 2 Smt. Mithlesh called Km. Hema, who was alone at her home, and forcefully sent her with the accused/appellant No. 1, namely, Gautam (brother -in -law 'DEWAR' of appellant No. 2). The accused Gautam, first of all, took Km. Hema to Jhabreda, (in the room of one Shibbu) where Km. Hema was kept under detention and the accused Gautam with his associates, namely, Shravan, Sandeep, Manga and Shibbu committed gang rape upon her throughout the night. Then the accused took his daughter to Jwalapur, at the house of one Pramod, where for two successive days his daughter was gang raped and when her daughter resisted, the accused persons wounded her with a knife and threatened her. Through her own attempts, when his daughter got rid from the clutches of the accused persons and came to her home, she disclosed the whole episode to her father. The complainant tried to lodge report at Police Station Manglaur, but they refused. It was reported that the accused are threatening the complainant and his daughter that in case they lodge any report, they will be killed. It was reported that normal condition of the victim is critical. The complainant, in the complaint, sought direction to the concerned police to lodge report and prayed for treatment of his daughter. On this, the CO., Circle endorsed the complaint to the Police Station Manglaur and under the directions of the CO. Circle, an F.I.R. was lodged on 13.05.2002 and entry was made in the General Diary. Investigation of the case was entrusted to PW -4 Sub Inspector Awadesh Kumar Pandey, who during investigation, recorded statements of the witnesses, after making spot inspection prepared site plans and then apprehended the accused persons. On 13.05.2002 at 5:15 p.m., medical examination of Km. Hema was conducted by PW2 Dr. Urmila Bohra at Civil Hospital, Roorkee. The doctor, in her report, has mentioned that there was a mark of injury over forehead -left side, however no mark of injury was seen anywhere on the body. Doctor found that breasts were well developed, auxiliary and pubic hairs were present, height 4'11", weight 45 Kg., teeth 7+7/7+7, vagina admitted two fingers easily, uterus normal size, hymen absent and vaginal smear was taken for pathological examination. For determining age of the victim, the victim was advised X -ray of right knee, elbow and wrist joint. PW -5 Dr. Yogesh Kumar, Radiologist conducted radiological examination on the person of the victim. In supplementary medical report, the doctor PW -2 has recorded that no definite opinion about rape could be given. After having examined the X -ray report, age of the victim was found between 16 -17 years.
(3.) THE prosecution, in order to prove its case, got examined PW -1 Km. Hema -the victim, PW -2 Dr. Urmila Bohra -Medical Officer, PW -3 Smt. Kusum - mother of the victim, PW -4 Sub Inspector Awadesh Kumar Pandey -Investigating Officer, PW -5 Dr. Yogesh Kumar -Radiologist and PW -6 Constable Ramdhan, who prepared the Chik Information Report and made entry in the G.D.;