- (1.) K. S. Rakhra and R. K. Rastogi, JJ. These are two connected crimina1 appeals under section 3/4 (2) Cr. P. C against the judgment and order dated 26. 7. 2004 passed by Sri S. K. Pandey. Addl. District and Sessions Judge (Fast Track Court No. 2), Baghpat in S. T. No. 164 of 2000 (State v. Ram Ratan and another) arising out of case crime No. 30 of 2000, police station Chandi Nagar district Baghpat whereby both the appellants have been held guilty and sentenced to imprisonment for life and a fine of Rs. 20,000/- under section 376 IPC and rigorous imprisonment for a period of five years and a fine of Rs. 2000/- for the offence punishable under section 506 IPC.
(2.) ACCORDING to the prosecution, on 20. 3. 2000 at about 3 p. m. Smt. Sunita, a young lady of 20 years wife of first informant Onkar Sharma P. W. I had gone to her field in Nagla Bahan to collect fodder for catties. While she was preparing fodder at her field, the two appellants Ram Ratan and Vidya Ram reached there and raped her one after another and gave her threat, not to disclose the incident to any one. This incident is said to have taken place in village Singauli within the circle of police station Chandi Nagar district Bagpat but the FIR in the matter was registered at the police station of Baghpat as crime no. nil under section 376 IPC. Later on the investigation was transferred to police station Chandi Nagar and case crime No. 30 of 2000 was registered. On the written report given by Onkar Sharma P. W. I, the F. I. R. was registered on 21. 3. 2000 at 4. 30 a. m. In the said report Onkar Sharma, however, did not name Ram Ratan and Vidya Ram as the accused but the accusation was made against Babu son of Phool of village Sarfabad within the police station Chandi Nagar and an unknown person. In the FIR it was stated that Babu aforesaid is the owner of field adjoining the field of first informant and that he was accompanied by an unknown person whom the prosecutrix would be able to recognise on being brought before her. ACCORDING to the FIR version Babu and his unknown companion committed rape one after another and gave threat that she would be killed it she discloses the incident to any body. It was further stated in the FIR that on account of this sexual assault, the physical condition of Smt. Sunita Decanie critical and she was bleeding profusely. Her husband had taken her to GTB hospital at Delhi where he was advised by the doctor to take her back for medical examination and treatment at Baghpat itself. He requested for registration of the FIR at police station Baghpat itself as it was difficult for him to go to police station Chandi Nagar to lodge the report because condition of wife was precarious. This report was registered as Ex. Ka-6. Head Constable Jai Prakash Singh P. W. 6 was posted at police station Baghpat at the relevant time. He registered the chik FIR and made entry in the general diary of police station mentioning that the first informant accompanied with his wife Smt. Sunita had come to the police station to lodge the report and that she was fully conscious and was referred for medical, examination. The medical examination of Smt. Sunita was conducted by Dr. Deepa Agarwal P. W. 4 on 21. 3. 2000 at 4. 55 a. m. The doctor had not found any external injury on the body of the prosecutrix although she had found bleeding in the vagina. She noticed tear on the right lateral wall of the vagina. She however referred the prosecutrix to P. L. Sharma hospital/dufferin hospital for further examination. Dr. Manju Malik P. W. 5 medically examined Smt. Sunita on 21. 3. 2000 at 8 a. m. She could not however form a definite opinion about rape. The investigation of this crime was taken up by Sri Faggan Singh P. W. 7 who after recording the statement of witnesses and collecting evidence found that the real culprits were Ram Ratan and Vidya Ram. He had produced the prosecutrix for recording her statement under section 164 Cr. P. C. before a magistrate wherein she made allegation of rape against the two appellants and she did not make any allegation against Babu.
(3.) DURING the course of investigation on 25. 3. 2000 an affidavit of Smt. Sunita (Ex. Ka-2) was filed before Superintendent of Police, Baghpat wherein she made allegation of rape against Ram Ratan and Vidya Ram only. She further mentioned in the affidavit that after this incident she was not in position to speak and her condition was precarious. After she regained consciousness she came to know that her husband had, under some confusion, lodged the FIR against Babu which w as wrong. Charge sheet was filed against the appellants on the basis of subsequent and charged version given by the prosecutrix under section 164 Cr. P. C. and also through the affidavit dated 25. 3. 2000.;