- (1.) THIS appeal, under Section 374 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr. P. C. , has been preferred by the appellant against the judgment and order dated 10-6-1987 passed by Sessions Judge, Tehri Garhwal in Sessions Trial No. 31 of 1986, State v. Deep Raj, whereby the learned Sessions Judge convicted the appellant under Section 376, I. P. C. and awarded for 7 years R. I. as well as under Section 376/511 of I. P. C. and awarded for 7 years R. I. and both the sentences were directed to run concurrently.
(2.) THE prosecution story in brief is that Km. Kanta, the victim, is a resident of Mayapuri, Delhi. Her mother on the faith over accused/appellant sent her daughter alongwith the appellant to Hardwar in connection with the treatment of chronic ailment of cough from which the prosecutrix was suffering from her childhood. On 30-6-1986, the prosecutrix in the company of the accused came from Delhi to Hardwar and stayed in Dharamshala. THE prosecutrix did not know the name of Dharamshala or its location. In the F. I. R. lodged by the prosecutrix, it was alleged that the accused/appellant committed rape with her in the aforesaid Dharamshala against her will. On the next day, the accused took the prosecutrix to the railway station on the pretext that she was to be taken to Delhi. However, she was taken to Rishikesh and she was made to stay at Hanuman Temple, Muni-Ki-Reti. On 4-7- 1986, the accused attempted to commit rape with the prosecutrix against her will, however she was successful in getting rid of the accused. She thereafter, went to Km. Uma, who was residing near Hanuman Temple. She told her that she was unwilling to go in the company of the accused. THE prosecutrix in the company of Km. Uma was going to P. S. , Muni-Ki-Reti. On the way, several other persons met her and then she went to the police station and handed over written F. I. R. Ex. Ka-1, scribed by Km. Uma. On the basis of the said F. I. R. , the Head Moharrir has prepared a Chik Report, i. e. , Ex. Ka-4 and the entry was made in the G. D. at 21. 30 p. m. on 4-7-1986, the copy of G. D. is Ex. Ka-5. Deep Raj was medically examined by Dr. Suredra Nath Ojha, P. W. 2 at Suman Hospital, Narendranagar, Tehri Garhwal on 5-7-1986 at 12. 15 p. m. and the medical report is Ex. Ka-2. The girl Km. Kanta was also medically examined by Dr. Meena Raturi on 5-7-1986 at 12. 10 p. m. at Suman Hospital, Narendranagar, her medical report is Ex. Ka-8. Thereafter, P. W. 7 S. I. , Sri. P. K. Chaudhary, Investigation Officer has also prepared the site plan i. e. Ex. Ka-6 and after recording the statements and completing the investigation, the I. O. has submitted the charge- sheet, i. e. , Ex. Ka-7 in the Court of C. J. M. , Tehri Garhwal. The learned C. J. M. , Tehri Garhwal has committed the case to the Court of Session after complying with the provisions of Section 207, Cr. P. C. The learned Sessions Judge has framed the charge against the accused under Sections 376, 376/511, I. P. C. on 11-3-1987. The charge-sheet was read over and fully explained to the accused who pleaded not guilty and claimed to be tried. The prosecution in order to prove his case examined P. W. 1 Km. Uma, who is a scriber of the F. I. R. P. W. 2 is Dr. Surendra Nath Ojha, Orthopedic Surgeon who has examined Deep Raj, the accused in Suman Hospital, Narendra Nagar, Tehri Garhwal on 5-7-1986 at 12. 15 p. m. P. W. 3 is Km. Kanta who is the prosecutrix. P. W. 4 is the Om Prakash who is the father of the prosecutrix. P. W. 5, Lady Constable Pushpa Butola, a formal police witness who brought the prosecutrix from P. S. Muni-ki-Reti to Suman Hospital, Narendranagar for medical examination. P. W. 6 is Vishnu Giri at whose house the prosecutrix stayed at Muni-ki-Reti for a night. P. W. 7 is P. K. Chaudhary, Investigating Officer of the case. After this, the accused was examined under Section 313, Cr. P. C. and he has denied the allegations made against him and he has stated that he was falsely implicated on account of business rivalry. However, he has not produced any defence witness in his support. After hearing the learned Counsel for the parties and considering all the evidence on record, the learned Sessions Judge vide his order dated 10-6-1987 has convicted the appellant under Section 376, I. P. C. and awarded for 7 years R. I. as well as under Section 376/511 of I. P. C. and awarded for 7 years R. I. and both the sentences were directed to run concurrently. Against the said order dated 10-6-1987, the appellant has filed the present appeal before this Court.
(3.) I have heard Sri D. S. Mehta, learned amicus curiae for the appellant and Sri Amit Bhatt, learned Additional G. A. for the State. P. W. 1, Km. Uma is the scriber of the F. I. R. who has stated that on 4-7-1986 at about 8. 00 p. m. , she was going from her house to the hotel where her father was working. On the way, one girl named Kanta met her. She told her the story of rape committed by the accused/appellant Deep Raj. Km. Kanta, the victim requested Km. Uma to scribe an F. I. R. because the victim was an illiterate girl. Upon her dictation, the F. I. R. was written by her and it was got signed by Km. Kanta and was then handed over at the police station and that F. I. R. is Ex. Ka-1. She also proved the Ex. Ka-1.;