- (1.) SHIV Charan, J. Above mentioned appeals have been instituted against the judgment and order dated 27. 2. 2006 passed by the Additional Sessions Judge, Muzaffarnagar in ST No. 1165 of 1998 (State v. Sushil Kumar and others) under sections 376, 323 and 506 IPC, Police Station Khatoli, district Muzaffarnagar. By the impugned judgment and order the learned Sessions judge convicted the appellant Sushil Kumar under sections 376 and 323/34 IPC and sentenced 10 years Rigorous Imprisonment and also imposed fine of Rs. 10,000/-, in default of payment of fine to undergo further Rigorous Imprisonment for a period of one year. The learned Additional Sessions Judge convicted the appellant for the offence under section 323/34 IPC for 1 year Simple Imprisonment. The sentenced order to run concurrently. The appellants Bittu @ Devendra and Ravinder were convicted for the offence under section 323/34 and sentenced 6 months simple imprisonment.
(2.) THE brief narration of the facts are essential to mention: - Smt. Gomti wife of late Mool Chandra, Resident of Sikretha, Police Station Khatoli, District Muzaffarngar lodged the F. I. R. at the police station on 16. 9. 1994 at about 02:00 AM with the allegation that as usual on Thursday in the intervening night of 15/16. 9. 1994 at about 12:00 O'clock she went at her field for irrigation of her field. THE accused persons Sushil, Bittu @ Devender and Ravinder appeared on the spot and all these accused persons thrashed her by legs and fists and the accused Sushil committed rape on her. On her noise witnesses Ham Chandra, Take Chandra, and Naresh rushed at the spot. Seeing the witnesses, these accused persons escaped from the spot. Afterwards at about 4:00 AM complainant victim was medically examined at Government Hospital, Khatoli. The investigation of the case was entrusted to S. I. Om Prakash. During the investigation the Investigating Officer visited at the spot and at the pointing out of the victim prepared a site-plan of place of incident. Peticoat of the victim was taken into custody and Fard was prepared. He also recorded the statement of the witnesses and on the completion of the investigation submitted the charge-sheet against the appellants. That prosecution in support of allegation of the F. I. R. examined Smt. Gomti (PW-1), Ham Chandra (PW-2), as the witnesses of the fact and incident. Gomti also proved the written F. I. R. Ext. Ka. The doctor Arti Faujdar, (PW-3) conducted the medical examination of the victim Gomti on 16. 9. 1994 at about 4:00 a. m. and she prepared examination report (Ext. Ka-2 ). S. I. Jagdish Prasad ( PW-4) was Head Moharrir at the police station Khatoli on 16. 9. 1994 and on the basis of written F. I. R of Gomti, he prepared chik F. I. R. (Ext. Ka-3 ). Entry was made in the G. D. and proved the copy of G. D. Ext. Ka-4. Om Prakash (PW-5) was the Investigating Officer of the case. He proved the site-plan Ext. Ka-5. Fard of Petticoat of Gomti Ext. Ka-6. Charge-sheet Ext. Ka-7. The accused appellants in their statement under section 313 Cr. P. C. denied the allegation of the prosecution. Appellant Sushil further stated that there had been an incident took place in between Ravindra alias Bittu and the Gurjar of the village and in this regard an F. I. R. had been lodged. And in that Criminal case his father appeared as witness against Jeet Singh, due to this reason this false case has been fabricated. Bittu and Ravinder further stated that their brother Bhusan lodged the First Information Report against Jeet Ram under section 307ipc and the criminal case is pending against him and his brother. In order to pressurize in that case this false case has been fabricated. Smt. Gomti is under the influence of Jeet Singh. Ravinder also stated that he is brother of Bittu @ Devender. It has also been stated that Ham Chandra (PW-2) has given statement against them as he is brother-in-law (Devar) of Gomti. No evidence was produced by the appellants in their defence.
(3.) I have heard Sri Arjun Singhal, learned Counsel for the appellants, AGA for the State and perused the entire material on record. It has been argued by learned Counsel for the appellants that the entire prosecution story is highly improbable and doubtful. It is unbelievable that Gomti victim of the offence went at her field at about 12:00 O'clock in the night specially in the circumstances when she has got her son also. It is more probable that instead of Gomti a lady herself went at the field for irrigation purpose. The statement of Gomti is not worth reliable and to inspire confidence. The statement of prosecutrix is full of shadow of doubt. There are numerous contradictions in the statement of the witnesses on material particulars. Even the spot is also doubtful. Inspite of the fact that numerous independent witnesses were present at the spot according to Gomti, but only Ham Chandra (P. W. 2) has been examined as a witness as he is highly interested witness and his appearance unbelievable on the spot. That the prosecutrix is aged about 55 years whereas the accused Sushil is too younger from Gomti. Under these circumstance this is also highly improbable that Sushil will commit rape on the prosecutrix who is much elder to him. He further argued that the appellants were falsely implicated in the case due to the enmity with Jeet Singh. Otherwise it is improbable how Jeet Singh came to know about this incident. That the F. I. R. is too prompt which make the story unbelievable. And it shows that the F. I. R. was lodged in pre-planed manner. Incident took place at about 12 O'clock in the night and the F. I. R. was lodged at about 2. 00 a. m. And the distance of Police Station is about 5 km. And, the medical examination was conducted at about 4. 00 a. m. on 16. 9. 1994. The sequence of all these events shows that it was the pre-planed case. That it is also material in the circumstances that whether Gomti had the turn of water for irrigation on the date of incident. And whether water started flowing in the field of Gomti at the time of incident. A slide of smear was prepared but the same was not sent for examination. The learned Counsel for the appellants argued that all the facts and circumstances are sufficient to presume that the entire story is fabricated and concocted.;