Decided on March 22,2013

Chhota S/O Bhanwar Singh; Rakesh Appellant
State of Uttranchal (Now State of Uttarakhand) Respondents


- (1.) Both these three appeals are directed against the judgment and order dated 01.08.2005, passed by Additional Sessions Judge/IInd Fast Track Court Hardwar, in Sessions Trial No. 320 of 1999, whereby said court has convicted the accused Chhota and Rakesh (appellants) under section 376 (2) (g) of I.P.C. Each one of them has been sentenced to rigorous imprisonment for a period of ten years and directed to pay fine of Rs. 5,000/-. The trial court has further directed that in default of payment of fine the defaulter convict shall undergo further six months rigorous imprisonment.
(2.) Heard learned counsel for the appellants, and learned counsel for the State, and perused the lower court record.
(3.) Prosecution story, in brief is that, PW1 Smt. Bala is wife of the PW2 Ved Singh. They are residents of Village Hathiyathal within the limits of Police Station Manglore, Tehsil Roorkee, District Hardwar. A First Information Report (ExA1) was given by PW1 Smt. Bala at the Police Station Manglore, alleging that on 08.03.1999, at about 9.00 am, she was taking meal for her husband to the field, and when she reached near a sugarcane field of Janeshwar Pandit, accused Chhota and Rakesh dragged her inside the field of Pandit and committed rape on her on the point of country made pistol and a knife. It is alleged by her that when she shouted her husband Ved Singh (PW2) one Mahesh and many villagers came there. It is also alleged in the First Information Report that two days before said incident on 06.03.1999, also the accused with similar intention dragged her in a field of wheat of one Hari, and on her making hue and cry villagers including one Sunil and Narendra saved her and accused left her on that day after giving threat. On the basis of said report Crime No. 46 of 1999, was registered relating to offence punishable under section 376 of I.P.C against the two accused Chhota and Rakesh at Police Station Manglore. Investigation was conducted by Circle Officer Om Pal Sharma (not examined by prosecution). PW1 Smt. Bala was medically examined by PW3 Dr. Urmila Bohra on 09.03.1999 at about 5.30 pm. No mark of injury was found anywhere on the body by said Medical Officer, who prepared medical report (Ex-A2). In her supplementary report, after considering the pathological report that " no spermatozoa seen dead or alive" and the radiological examination she opined that no definite opinion about rape can be given. After interrogating the witnesses and inspecting the spot the Investigating Officer submitted charge sheet (Ex-A9) against the two accused namely Chhota and Rakesh for their trial in respect of offence punishable under section 376 of I.P.C., and one punishable under section 3 (2) (V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.;

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