- (1.) The appellants have preferred the aforesaid appeals against the judgment dated 24.02.2003 passed by Addl. Sessions Judge, Hoshiapur vide which they were held guilty under Section 366 IPC and sentenced to undergo rigorous imprisonment for seven years. Each of them was directed to pay a fine of Rs.5000/-. In default of payment of fine, they were required to further undergo further rigorous imprisonment for three months. Their co-accused Rajinder Kumar (since deceased) was also convicted under Sections 376 and 366 IPC. The facts leading to the institution of present appeal are being noticed first.
(2.) On 02.09.2001 prosecutrix got her statement Ex.PA/1 recorded. She was born on 17.11.1977 and used to do household work. On 04.08.2001, she had gone to village Purhiran where her elder sister was married. At about 3:30 p.m. she was standing at Phuglana bye-pass when a maruti van driven by a Sikh stopped. Rajinder Kumar, Balwinder Thakur and one Micky alighted therefrom. Rajinder Kumar pointed a pistol like object at her. When she screamed, Balwinder Thakur and Micky tied her mouth with a cloth and threw her in the car. She could identify the driver if brought before her. She further alleged that she was forcibly taken to a room in Chandigarh for the purpose of marrying her with Rajinder Kumar against her wishes. It was disclosed that Rajinder was already married and had four children. After leaving her and Rajinder Kumar there, the other three went away. Some ceremonies were performed by Bhajno and Dharampal, the parents of Rajinder Kumar who had also came there. Rajinder Kumar committed rape with her. She managed to escape and narrated the incident to her mother and sister and reported the matter to the police. On the basis of aforesaid statement, FIR was registered at Police Station, Mehtiana, District Hoshiarpur. Statement of prosecutrix under Section 164 Cr.P.C. was recorded. Her medical examination was done. Identity of driver of van was revealed as Raj Kumar and the person referred as Micky was Parshant Pathak. Accused were arrested. The investigating agency filed challan against Balwinder Thakur @ Sonu, Rajinder, Dharam Pal, Harbhajan Kaur, Parshant Pathak @ Micky and Rajinder. Charge under Sections 366 and 368 IPC was framed against all the accused, while accused Balwinder Thakur, Rajinder Kumar and Parshant Pathak were charge-sheeted under Section 376(g) IPC, whereas accused Rajinder Kumar was also charge sheeted under Section 376 IPC. During trial, the prosecution examined eight witnesses. PW1 the prosecutrix, PW2 Dr. Aruna had conducted the medical examination. PW3 Mr. M.S. Randhawa, Judicial Officer had recorded the statement of the prosecutrix under Section 164 Cr.P.C. PW4 Dr. Gurbachan Singh had medically examined Rajinder Kumar and Parshant Pathak. PW5 Kulwant Kaur, Clerk from the office of Transport, Hoshiapur proved the registration certificate of Maruti Van PB07-1555 which was in the name of Gurdeep Singh. PW6 Const. Amarjit Singh tendered his affidavit Ex.PJ. PW7 Surinder Kaur sister of prosecutrix narrated the story given to her by the prosecutrix. PW8 ASI Bhupinder Singh was the investigating officer of the case. When examined under Section 313 Cr.P.C., the accused pleaded false implication. Accused Rajinder Kumar specifically took the stand that the prosecutrix was having an affair with him and she took him to different places and they remained together for a month. In Chandigarh they were caught by the police at Maloya and their statements were recorded and they were handed over to the police and at that juncture no overt act was attributed, but later on the tutoring of her parents, she had got the case registered.
(3.) In defence, SI Kuldip Singh, Crime Branch, Chandigarh was examined as DW1 and SI Munish Kumar as DW2 proved FIR No. 237 dated 05.12.1997 (Ex.DA) wherein accused Balwinder Singh was an eye witness in the murder case and the accused therein were convicted. On conclusion of trial, the Court concluded that there was no role of Dharam Pal and Harbhajan Kaur and acquitted them. The prosecutrix was disbelieved to the extent of allegations of rape by Balwinder Thakur, Parshant Pathak and Raj Kumar and they were acquitted of the charges under Section 376(g). However, the appellants and accused Rajinder Kumar were held guilty and sentenced under Section 366 IPC. Rajinder Kumar was also convicted under Section 376 IPC. Dis-satisfied with their conviction and sentence, all the four accused filed separate appeals. Meanwhile, accused Rajinder Kumar had died during the pendency of the appeals and proceedings against him had abated. I have heard learned counsel for the appellants and learned State counsel and have gone through the record carefully.;