- (1.) H. C. Mital, J. Both these appeals arise from a common judgment dated 13-2-1985 passed by Sri B. Lal, Additional Sessions Judge, Agra in Sessions Trial No. 218 of 1983 convicting both the appellants, under Section 376 and further convicting Allahabad under Section 302 and Bhola under Sec tion 302 read with Section 114, IPC but sentencing both of them for each offence to file imprisonment.
(2.) THE prosecution case in brief is that the victim Smt. Meenu Dadlani, a young lady, was daughter-in- law of Sri J. K. Dadlani (P. W. 8) and had come to Jhansi at her father-in-law place to deliver her child. When the child had become about four-five months old on 17-3-1983 Sri J. K. Dadlani got her boarded on Tamil Nadu express for New Delhi. Sri J. K. Dadlani had informed his daughter Smt. Damyanti Hamrajani (P. W. 2) to receive Meenu Dadlani at New Delhi Railway Station. Smt. Meenu Dadlani had occupied 11 class compartment of the train which happened to be the last compartment of it and there was a brake van between the compartments and the compartment occupied by her. Thus inspite of the fact that the Tamil Nadu Express is a vestibule train, any occupant of the last compartment could not go to any other compartment of the train, nor of the latter could come to the last compartment. Tamil Nadu Express is a super-fast train and after Thansi its stoppage is at New Delhi. It does not stop even at big stations like Qwalior, Agra and Mathura. On 17-3-1983 Tamil Nadu Express arrived at Jhansi Station at 10. 10 a. m. and left at 10. 35 a. m. Normally stoppage of that train was fifteen minutes at Jhansi but it stopped for tan minutes more as a Pablic Way Inspector had also boarded the train because the track was bsing re paired in between Karari and Datia Stations. The train reached Karari station at about 10. 45 a. m. and it stopped so that the Public Way Inspector could get down and thereafter it started from Karari at 11. 05 a. m. and then in the way it further stopped due to repairs in the track for a few minutes. According to the prosecution when Smt. Meenu Dadlani boarded the compartment there was only one young lad of about 13 years and the compartment was otherwise vacant. However, when it stopped at Karari, three miscreants including Bhola appellant came in the compartment and after sometime when the train again slowed down and stopped, Akhilesh Kumar appellant also entered the compartmant. In the way they on seeing Meenu Dadlani alone in the compartment raped her and killed her and also looted her valuables. After sometime when the train again slowed down in between Sank and Morena stations due to some caution, appellant Bhola and bis two companions got down while Akhiiesh Kumar could not get down there. The train thereafter sloped at the outer singal of Agra Cantt for want of clearances. Akhilesh Kumar got down there from the compartment and while he was crossing the lines, Sri Jagdish Chand Sachdeva (P. W. 6) guard of the trian, accosted him why he was getting down there, called him and with the help of the gang men who were working there, he was brought be fore the guard. The guard noted several abrasions on his face, found him very nervous. On enquiry. Akhilesh Kumar, told him that an unconscious lady was lying in the compartment. Immediately thereafter Milin D. Patil (P. W. 10) the young lad, who was travelling m that compartment from Jhansi also got down and told the guard Sri Jagdish Chand Sachdeva that Akhilesh and others had raped the lady and she was lying naked, uaconsicous and tied in the compartment. The guard then noted the unconscious lady lying naked and tied. He then informed the driver of the train on phone as the clearance of the train had been given not to start it and called the Trian Conductor Sri Mahesh Prasad Goswami (P. W. 14) and Sri Rajlingam Kuncaraswami, Trian Superintendent and along with them carried both Akilesh Kumar, the appellant and Milin D. Patil (P. W. 1) in his cabin. In the cabin he also noted a Potli with Akilesh about which the latter said contained some articles of the lady. The guard also informed the driver to start the trian but to stop it at Agra Cantt. There the guard alongwith Sri Mahesh Prasad Goswami (P. W. 14) also informed the R. P. F. Inspector, Sri Mehtrotra who also came there, Dr. Ashok Shukla (P. W. 5) also arrived and declared the lady to be dead. The four-five months child of the lady was also lying on the berth. Fortunately Smt. Chaudnary, M, P. and one another M. P. were also travelling in the same tram. Smt. Usha Chaudhary having come to know about the incident came to that compartment and took charge of the child. She also broke her journey ac Agra, so that she could look after the child till his relations arrived. Sri Sachdeva then alongwitii Akiiesh, Milin, Goswami and Mehrotra R. P. F. Inspector went to the police station G. R. P. and lodged the F. I. R. (Ex. ka 2) at 3. 30 p. m.
(3.) GOREY Lal (P. W. 9) was Deputy Station Superintendent, his duty was to check the passing of the Tamil Nadu Express. When he found that the train had stopped there, he enquired from the driver of the train why he had stopped the train then he was told by the driver that the Guard had informed him that a body was lying in the compartment and, therefore, on his instructions he had stopped the train, GOREY Lal (P. W. 9) then went to his office and informed the G. R. P. Police Station on phone about the body of a lady lying in the compartment and on receipt of it an entry was made in General Diary and Inspector, Sheo Kumar Tiwari (P. W. 24) left for the platform but when he arried at the platform, he found that Sri Sachdeva had already gone with appellant Akhilesh Kumar and the witness Milin D. Patil to the G. R. P. Police Station. He got the com partment disconnected from the train and asked the Station Master to detain the guard and conductor of the train at Agra for interroga tion. He then went back to Police Station G. R. P. and there he found Sri Sachadeva Guard, appellant Akhilesh, witness Milm Patil and others. On the basis of the F. I. R of Sri Sachdeva guard the case was registeted. Sri Sacheva also handed over to him the two gold ear rings, two pieces of black sattan cloth and a phial of perfume of the deceased which the appellant Akhilesh had with him and told the guard belonged to the deceased lady. S. I. Tiwari then took in his possession underwear of the appellant Akhilesh and sent him for medical examination. He sent for a photographer and returned to the station at the compartment wherein the deceased was lying. The photographer (P. W. 1) Harpal Singh took the photographs of the deceased and the child Ex. 1 to 3. S. I. Tiwari took in his possession the two pieces of rope (Ex. 16 and 17) by which hands and feet of the deceased were tied through memo (Ex. ka 25 ). He also seized underwear Ex. 18 of the deceased through Memo Ex. ka 37. He also prepared inquest report Ex. ka 47 of the deceased and with necessary papers sent the same in sealed condition for post mortem. He also seized the blood- stained floor alter removing it from the compart ment and also the articles of the deceased lying there. He also prepared a s,ite plan (Ex. ka 53) of the compartment. He found ticket of the deceased from Jhansi to Delhi in her hand bag and then sent messages to Jhansi and Delhi through Station Superintendent. P. W. 23 Raja Singh was S. O. at G. R. P. Cantt. Agra. He was out of Station when the report was lodged. He returned on 19-3-1983 and then took over the investigation from S. 1. Tiwari P. W. 24. He searched for accused Bhola and succeeded in apprehending him on 25-3-1983 at Morena Station at the pointing out of Milin D. Patil (P. W. 10) when he had taken for investigation. Bhola was sent for medical examination and then he took him on police remand. Thereafter on completion of the investigation on 13 5-1983 he submitted charge-sheet against both the appellants. The other miscreants could not be traced.;