AMAR SINGH CHAUHAN,J. - (1.) Challenge in this appeal is to the judgement and order dated 06.10.2010, passed by learned Sessions Judge, Jhansi in Session Trial No. 87 of 2008 (State of U.P. vs. Mahendra Prajapathi) whereby the accused-appellant Mahendra Prajapati was convicted and sentenced to undergo rigorous imprisonment for ten years and a fine of Rs. 50,000/- for the offence of rape under section 376 of the Indian Penal Code, committed on 05.11.2006 with default stipulation and was also further convicted and sentenced to undergo rigorous imprisonment for ten years and a fine of Rs. 50,000/- for the offence of rape, committed on 12.11.2006, under section 376 of the Indian Penal Code with default stipulation. Appellant Mahendra Prajapati is also convicted and sentenced to undergo rigorous imprisonment for one year for the offence under section 506 of the Indian Penal Code. All the sentences shall run consecutively to wit one after the other. Out of the fine, so deposited, 50% shall be paid to the victim as compensation.
(2.) In short compass the facts giving rise to the present appeal are that on 05.11.2006 the victim was going to visit to the house of her friend, namely, Honey near Shahni Colony. The co-accused Sunny, the brother of Honey, intervened while sitting in a Marauti Car. He offered the victim to drop her at her residence by his Car. The victim agreed and boarded the car. Sunny was accompanied with other co-accused Kapil inside the car. When the car was not taken to the right direction then the victim objected. The accused Mahendra Prajapati also joined with the other co-accused. The car was bolted from inside. The music system was switched on at a very high volume. The car was taken towards Orchha forest and when it was moving the victim was forcibly disrobed and raped by all accused. During rape video C.D. was framed by mobile having camera facility. After quenching their sexual thirst, all the three accused dropped the victim to her residence. She received mobile calls from the accused persons that the video C.D. about the entire act of rape has been prepared. They called upon the victim for giving C.D. at a place near Shahni Colony where she was again forcibly sexually ravished by the three accused persons. They did not hand over the video C.D. The victim in the protest got her hand injured with the use of blade. Under the fear of threat extended by the accused persons and their stigmatic public exposure, the victim and her parents decided not to lodge the report and they kept mum. After the incident, on 27.7.2007, the video C.D. alongwith the news of nasty and abominable act of rape reached to the Star News Channel which telecasted the C.D. at about 8.40 P.M. When the accused Mahendra Prajapati got identified by the police and entry was made in the G.D., he was arrested on 27.7.2007 from the house of Bala Ram Yadav at Shivgarh. He confessed the guilt and also stated that the C.D. of rape was prepared by accused Sahil Srivastava and Amit Yadav, who have sold it for good money. During investigation from the possession of the appellant, C.D. Player, two blue film C.Ds, 200 other C.Ds about different movies and songs, which were dubbed, were recovered. From the possession of co-accused Sahil Srivastava and Amit Yadav, one laptop, mouse and C.D., monitor, key board, C.P.U., lead and 87 different CDs were recovered but they were got declared juvenile and the case was separated from the present appellant. During investigation, the victim was examined under section 164 Cr.P.C. After concluding the investigation the charge-sheet was submitted against the appellant. Charges were framed against the appellant under section 376 IPC for rape on different dates i.e. 05.12.2006 and 11.12.2006. Charges under sections 506 and 292 IPC, 4 of the Indecent Representation of Women (Prohibition) Act , and 63/68 of Copyright Act were also framed.
(3.) To bring home the guilt of the accused, the prosecution has examined as many as twelve witnesses. After closing of the prosecution evidence, the appellant was examined under section 313 Cr.P.C. in which he has stated that he has been falsely roped in this case on the pressure of the police. Nothing incriminating article was recovered from the possession of the appellant. The C.D. is neither exhibited nor any forensic report was called on. Besides this, C.D. was not produced before the court. No evidence in defence was adduced by the appellant. P.W.-1 Mukesh Verma is the public witness of the recovery made by the police party. He has stated that on 28.7.2007 he went to the police station Sipri Bazar, Jhansi. No recovery was made before him by the police party. P.W.-2 Dipak is the other public witness of the recovery. He has also denied any recovery by the police before him. P.W.-3 S.I. Vivek Chaturvedi is the PRO with SSP, Jhansi. He has stated that on the date i.e. 27.7.2007, news was flashed over Star News whereby a girl was shown being raped by few boys. She was crying and requesting for mercy to leave her. He was directed by the superior officer to follow up of the action. He made an entry in the G.D. and proceeded to the place of occurrence. At Rash Bahar Tiraha, the informer pointed out that one person, who has committed rape, has been recognized as Mahendra Prajapati and is present at the house of Bala Ram Yadav. The accused-appellant Mahendra Prajapati was arrested and from his possession one Nokia 1100 mobile was recovered. On the confession of the accused-appellant, C.D and another articles were recovered. P.W.-4 Smt. Madhu Srivastava is the mother of the victim. She has stated that the victim was student of Hari Kishan Degree College, Jhansi. She found the injury in the hand of the daughter and blood was oozing. Her daughter deposed that the accused persons have extended threats not to make disclosure to the public otherwise they would be killed. She also disclosed that the accused persons have also prepared video C.D and threatened to public exposure. Later on, T.V. News flashed that the accused persons were arrested. The victim narrated of the story to her. P.W.-5 is the victim herself. She has deposed that on 05.11.2006 she was going to meet her friend Honey at Sipri Bazar, Jhansi. On the way one blue Maruti Car intercepted. Sunny, the brother of Honey was driving the car. He offered her to drop at her residence. When she got seated inside the car, Kapil was also sitting there. The car was turned to different direction she objected but the accused Kapil caught hold of her and extended threats to her. The blasses, which were black in colour, were slided up. Her cries could not be heard outside. The car was taken to the bus stand where accused Mahendra Prajapati joined. Thereafter the car was taken towards Orchha and she was forced to take wine and to smoke. They forcibly dragged her and committed rape inside the car. C.D. was also prepared and on the pretext of returning back the C.D. to her they also committed rape on 12.11.2006. The C.D. about her rape was flashed over the T.V. She came to know that the accused persons have been arrested. P.W.-6 Kotu Ram is the formal witness, who has scribed the G.Ds. Copy whereof have been proved as Ex-ka-5 and ka-6. He has also proved that on 28.7.2007 the case was registered as Crime No. 1166 of 2007 against accused Mahendra Prajapati and others and the articles which were recovered by the police party from the possession of the accused, were lodged to the police station in sealed condition. P.W.-8 S.I. Dinesh Kumar Verma is the Investigating Officer. He has stated that the statement of the victim and other witnesses was recorded on 27.8.2007, who supported the prosecution case. He also recorded the statements of the other witnesses, copied of the statement of the victim under section 164 Cr.P.C. and submitted charge sheet against all the accused. P.W.-9 Balbir Singh Gaur is the S.O. at Sipri Bazar, Jhansi. He has stated that on 27.7.2007 at about 8.40 P.M. he viewed at Star News TV that one girl was being forcibly sexually ravished by three miscreants in a Maruti Car. It was also telecasted that due to fear the victim has neither lodged FIR nor has moved the higher authority. One accused Mahendra Prajapati was arrested who disclosed the name of other co-accused. The police party raided and from the house of Bala Ram Yadav the accused-appellant Mahendra Prajapati was arrested. P.W.-10 Pranav Mahajan is legal Manager of Star News. He was directed to produce the C.D. of the news about the rape flashed on 27.7.2007. He has stated that such C.D. remains in safe custody of the channel for 90 days only and thereafter it is destroyed. Since the occurrence is of two years back, he does not have any record or the C.D. of the same. P.W.-11 S.I. Uma Shanker has conducted the investigation in part. P.W.-12 is S.I. Brijesh Kumar Mishra, who also conducted the investigation in part. He has simply collected the gangster chart against the accused persons. ;