Saurabh Shyam Shamshery,J. - (1.) Appellant-Gurpreet alias Sodi (in Criminal Appeal No. 6966 of 2010) and appellant-Balbindra alias Bagga (in Criminal Appeal No. 7153 of 2010) have preferred present appeals under Section 374(2) of Criminal Procedure Code (hereinafter referred to as "Cr.P.C. ") challenging the judgment and order dated 19.10.2010 passed by Additional Session Judge, Room No. 7, Saharanpur in Session Trial No. 87 of 2010 (State vs. Gurpreet alias Sodi and others), whereby appellants were convicted under Section 376(2)g IPC and sentenced for rigorous imprisonment for life with fine of Rs. 20,000/- each and in case of default, one year rigorous imprisonment. Appellant-Gurpreet alias Sodi was also convicted under Section 506(2) IPC and sentenced for three years rigorous imprisonment with fine of Rs. 3000/- and in case of default, six months rigorous imprisonment.
(2.) Prosecution Story 2.01 Ram Kumar (PW-1), father of victim (PW-2), (name of the victim is withheld in compliance with the ratio of Bhupinder Sharma vs. State of Himachal Pradesh (2003) 8 SCC 551), lodged a written report (Exhibit Ka 1) at Police Station Kotwali Nakud, District Saharanpur on 11.06.2009 at 18.20 hours, stating that her daughter (victim) went to attend nature's call on 07.06.2009 at about 8.00 P.M. but she did not came back till late night. Despite best efforts of family members she remained untraceable. 2.02 Next day (08.06.2009) in the morning at about 9.00 A.M. victim telephoned from a Phone No. 01331-322426 to Sanjay Singh (PW-3), resident of same village informing about her wherebout. Thereafter Sanjay Singh (PW-3) informed Rajveer (PW-4), resident of same village, who went to Village Husainpur and accompanied the victim back to her home. 2.03 Victim, after returning back to her home, narrated the occurrence to her father (PW-1) that, when she was going to attend nature's call, accused Gurpreet alias Sodi son of Gurmeet Singh alongwith other two boys having their face covered took her forcefully to a far away sugarcane field and one by one committed rape, after that they ran away leaving her in unconscious state. 2.04 After regaining consciousness, with great difficulty, she reached to nearby Village Husainpur and tried to contact her father but failed, thereafter she called Sanjay Singh (PW-3) and informed about her whereabout, who informed Rajveer (PW-4) who went to Village Husainpur on motorcycle and took her back to her house. 2.05 At about 4.30 P.M. on 08.06.2009, appellant-Gurpreet alias Sodi make a threatened call to PW-1 of dire consequences in case the incident was reported to police but any how after muster courage he reported the incident to police on 11.06.2009 at about 06.20 P.M. 2.06 Consequently, First Information Report (FIR) was lodged against appellant-Gurpreet alias Sodi and two unknown persons under Sections 376, 506 IPC at Police Station on 11.06.2009 at 06.20 P.M. Victim was medically examined. In Pathology report "smear found to be negative for spermatozoa ". Doctor opined that, "no definite opinion about rape can be given ". Hymen was found old torn. On the basis of physical and radiological finding, her age was reported to be about 18 years. On the person of victim following injuries of simple nature were found: (i) Multiple hard scabbed abrasion measuring 8 cm x 2 cm on left side front of neck. Partially cracked. (ii) A hard scabbed abrasion of 4 cm x 2 cm on back of right upper and just above elbow. (iii) A hard scabbed abrasion of 3 cm x 2 cm on left side of face. Partially cracked. (iv) Partially hard scabbed abrasion of 4 cm x 3 cm on front of left upper arm, 7 cm from left rib. Partially cracked. 2.07 Statement of the victim under Section 164 Cr.P.C. was recorded on 30.06.2009 by Judicial Magistrate/ Civil Judge (Junior Division), Saharanpur, where she supported the version of FIR and also named appellant-Balbindra alias Bagga to be one of the two unknown assailants as she recognised him when he visited appellant-Gurpreet alias Sodi's residence, which was opposite to her house, after 7-8 days of the occurrence. She had seen his face during the occurrence, when his mask was removed. Charge
(3.) After completion of investigation charge sheet was submitted and charges under Sections 376(2)g and 506(2) IPC, were framed against both appellants on 09.04.2010, to which they denied and claimed trial. Prosecution Witnesses;