- (1.) THIS is an appeal against the judg ment and order dated 28/11/2006 passed by the learned Sessions Judge, Dehradun in S. T. No. 8 of 2006, State Vs. Sandeep Kumar Sharma and other convicting the appellant Sandeep Kumar Sharma and sentencing him for a period of 7 years R. I. u/s 366 I. P. C. and fine of Rs. 2. 000/- and in default of payment of fine he would have to undergo further two months R. I. He was also convicted and sentenced un der section 376 I. P. C. for a period of 10 years R. I. and a fine of Rs. 8,000/- and in default of the payment of fine he would have to undergo further R. I. for one year. It was directed that both the sentences would run concurrently.
(2.) AT the outset, it needs to be men tioned that the co-accused Rinky @ Nikky was acquitted by the trial court u/s 366 I. P. C. Brief facts leading to the prosecu tion case are that the co-accused Rinky @ Nikky was a frequent visitor in the house of the prosecutix and she was sister in law of the prosecutrix. Co-accused Rinky @ Nikky asked the prosecutrix that she had been working in a salt factory and earn ing a good amount therefrom. She also asked the prosecutrix to work in the said factory so that she may also fetch good amount of salary. On the persuasion of the co-accused Rinky @ Nikky, the prosecutrix accompanied her to get a job in the said factory. However, the parents of the prosecutrix refused to do so. Even though on earlier occasions, the parents of the prosecutrix has refused to send her with the co-accused Rinky @ Nikky for a job as stated by her. The co-accused Rinky @ Nikky again came to the house of prosecutrix on 07/ 09/2005 and took the prosecutrix with her. They went to Meerut bus stand where the appellant Sandeep Kumar Sharma met them and co-accused Rinky @ Nikky introduced the appellant as her boss. The co-accused Rinky @ Nikky has further stated that he was the person who would employ you in the fac tory. Thereafter, the appellant, prosecutrix alongwith co-accused Rinky @ Nikky went to Rishikesh where they stayed in the Aggarwal Dharamshala in the night on 09/ 09/ 2005. The appellant Sandeep Kumar Sharma committed forcible sexual assault upon the prosecutrix there. Thereafter, the prosecutrix was taken by the appellant and co-accused Rinky @ Nikky Dehradun where they stayed in Moti Mahal Hotel. The prosecutrix was again subjected to the forcible sexual intercourse there. On the next day, the appellant, co-accused Rinky @ Nikky and the prosecutrix shifted to Aggarwal Dharmshala, Dehradun. The prosecutrix was subjected to forcible sexual assault in the Aggarwal Dharamshala also. It was also alleged in the prosecution case that the appellant was having a knife and pistol in his hand and he has threatened the prosecutrix not to make noise or to tell this fact to anyone otherwise she would have to face the dire consequences. The appellant also threatened her to kill her parents and brother if she would disclose this fact to others. On 14/09/2005, the prosecutrix got an opportunity to run away from the clutches of the appellant and co-accused Rinky @ Nikky while she was sent by the appellant to purchase cigarette. Im mediately, thereafter she went to the resi dence of her Mausa named Elam Singh Chauhan at Shakti Bihar Mausa, Dehradun. The prosecutrix narrated the entire incident to them. In the meantime, the appellant and co-accused Rinky @ Nikky also reached to the house of Elam Singh. There the prosecutrix identified the appellant Sandeep Kumar Sharma who has committed the sexual assault upon her. The prosecutrix also stated that the co-accused Rinky @ Nikky persuaded her by deceitful means to accompany her. Thereafter, a report Ex. Ka. 1 was lodged at the Police Station Dehradun in the in tervening night of 14-15/09/2005. The appellant and co-accused Rinky @ Nikky was also handed over to the police. The investigation was conducted by the police. The medical examination of the prosecutrix was conducted on 15/09/2005 at about 2:30 p. m. in the District Women Hospital, Dehradun by Dr. Meenakshi Uniyal. The doctor referred the prosecutrix to the radiologist. After receiving the re port from the radiologist and pathologist, a supplementary report was submitted by Dr. Meenakshi Uniyal wherein it was stated that the prosecutrix was about 18 years of age; vaginal smear report was found negative for spermatozoa; and no definite opinion about the rape could be taken. After completing the investigation, chargesheet was submitted against the ap pellant and the co-accused Rinky @ Nikky The Chief Judicial Magistrate, Dehradun committed the case to the court of Sessions. The learned Sessions Judge framed charges against the accused/appel lant. The accused/appellant denied the charges and claim trial.
(3.) THE prosecution in support of its case examined Elam Singh PW1 who is Mausa of the prosecutrix. He has lodged the report in the police station. PW2 is the victim herself. She has narrated the entire incident before the Court. Nairn Ahmed PW3 has stated that the accused/ appel lant was arrested in his presence and a toy pistol was recovered in his presence from the Aggarwal Dharamshala, Dehradun. Himmat Ramola PW4 is the employee of Motil Mahal Hotel. He has stated that co-accused Rinky @ Nikky booked the room in his hotel. Ram Avtar PW5 is an Ac-count-cum-Booking Clerk of Aggarwal Dharamshala. He has alleged that they stayed in his Dharamshala on 14. 09. 2005. Dr. Meenakshi Uniyal PW6 is the doctor who has conducted the medical examina tion on the body of the prosecutrix. Con stable Narendra Singh PW7 is the formal witness. Jyoti Prakash Uniyal PW8 is the employee of Aggarwal Dharamshala, Rishikesh where the appellant, co-accused and the prosecutrix resided in a room on 09/09/2005 and III 09/2005. S. I. R. K. Chauhan PW9 is the Investigating Officer of this case. Fakir Chand PW10 is the peon who has stated that the prosecutrix was a student of Ram Public Junior High School. He has also brought the record of the school alongwith him. He has stated that according to the record the prosecutrix date of birth is 20th Septem ber, 1988. The accused/appellant was exam ined u/s 313 Cr. P. C. and he has denied the entire prosecution case and stated that since the prosecutrix has taken away a sum of Rs. 20,000/- which was collected by him for the company as a sales proceeds. Therefore, he went to the house of Elam Singh in search of the prosecutrix and he was apprehended there. He has denied that he committed the forcible sexual in tercourse upon the victim. He has further stated that he has been falsely implicated in this case.;