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2007 Supreme(UK) 566
2008 N.C.C. 340
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice B.C. Kandpal
Criminal Appeal No. 177 of 2007
DHANESH KUMAR & ORS. – Appellants
Versus
STATE OF U.P. – Respondent
Decided on : 22.11.2007
For the Appellants :Mr.Lokendra Dobhal, Advocate
For the Respondent: Learned A.G.A.
Headnote:(A) I.P.C., 1860, Sec. 376 — Offence of rape committed on a married woman — Prosecutrix on medical examination found to be habitual in sexual intercourse — She also having given birth to a child — No external injury also found on her person — No definite opinion about the rape could be given by the doctor who conducted her medical examination — However, presence of human semen and spermatozoa on her petticoat established that she was subjected to rape — Conviction of accused found to be justified. (Paras 16, 17, 19)
(B) I.P.C., 1860, Sec. 457 — Sentence — Conviction of accused found to be justified and upheld — But the sentence of one year's R.I. reduced to one already undergone being one month since the offence related back to 19 years i.e. 1988. (Paras 19, 20, 21, 22, 23, 24)
¼v½ Hkkdndlad] 1860] /kkjk;&376 & fookfgr L=h ds lkFk cykRdkj dk vijk/k & L=h fpfdRlh; ijh{kk esa eSFkqu dh vknh ikbZ xbZ vkSj mlds }kjk ,d cPps dks tUe Hkh fn;k gqvk ik;k x;k & mlds 'kjhj ij dksbZ ckgjh pksV Hkh ugha ikbZ xbZ & ,sls esa MkDVj }kjk cykRdkj ds fo"k; esa dksbZ fuf'pr jk; ugha nh xbZ & fdUrq ihfM+r ds isVhdksV ij euq"; ds oh;Z vkfn dh mifLFkfr ls mlds lkFk cykRdkj gksuk fl) ik;k x;k & vr% mldh nks"kflf) o ltk cjdjkj j[kh xbZA ¼izLrj 16] 17] 19½
¼c½ Hkkdndlad] 1860] /kkjk&457 & mDr /kkjk ds vUrxZr nks"k flf) lgh ikbZ xbZ fdUrq vijk/k 19 lky iqjkuk lu~ 1988 dk gksus ds dkj.k Hkqxrh tk pqdh ltk tks ,d ekg dh Fkh esa ,d ls ?kVkdj de dj nh xbZA ¼izLrj 19] 20] 21] 22] 23] 24½
Hon'ble B.C. Kandpal, J.
This criminal appeal has been preferred against the judgment and order dated 2.8.1989 passed by District & Sessions Judge, Tehri Garhwal in Sessions Trial No. 29 of 1988, State vs. Dhanesh Kumar and Sunder Lal, thereby convicting the appellant Sunder Lal u/s 457 I.P.C. awarding sentence of one year R.I. and appellant Dhanesh Kumar u/s 457 and 376 I.P.C. for the sentence of one year and 7 year R.I. respectively.
2. Briefly stated the prosecution case is that Manmathan (PW-2) has been running Bhuvneshwari Mahila Ashram at Anjanisain, District Tehri Garhwal for 18 years. He is founder and Secretary of this Ashram in which unemployed women and orphan children reside. Sulochna and Pramila PW-4 are residing in this Ashram. He appointed Dhanesh accused as Supervisor to train these women and orphan children. Sunder Lal accused was also serving in the said Ashram and was removed from service by Swami Manmathan (PW-2). He lodged a report of theft against the accused Dhanesh in December, 1987 in which he was arrested. On 11.1.1988 at about 5 p.m., accused armed with a Khukri and a danda arrived in the inspection house of the Ashram and demanded stipend. Swami Manmathan told that his salary has already been given to his father. After half an hour, accused Dhanesh arrived and threatened Swami Manmathan to see. On feeling danger from accused Dhanesh, Swami Manmathan retired to his office room instead of bed room. On 11/12.1.88 accused Dhanesh and Sunder Lal arrived in the room of Gaushala where Sulochna PW-1 was sleeping. Accused Dhanesh got the door unlocked saying that she was his neice. Then he made search for Swami Manmathan. After a while, he went to Sulochna to return her-torch. He took her to the upper building to search for Swami Manmathan. He, Sulochna, Pramila and accused Sunder Lal went to the room above the gaushala. Sunder Lal and Pramila remained outside the door of the room. Sulochna unlocked the rooms. Then accused Dhanesh took Sulochna to the third room of the Ashram and locked it. Accused Dhanesh committed rape on Sulochna PW-1. On 12.1.88 in the early morning of about 5 or 6 a.m., Sulochna went to Swami Manmathan and narrated the aforesaid incident to him. Then Swami Manmathna (PW-2) dictated report Ext. Ka-1 to his clerk and lodged the same at Patwari Outpost Anjanisain on 12.1.88 at about 8 a.m. Patwari Indra Dutt Dangwal (PW-3) wrote F.I.R. Ext.Ka-3 on the basis of report Ext.Ka-1 and made necessary entry Ext.Ka-4 in the General Diary. He started investigation of this case. He recorded the statement of Swami Manmathan (PW-2) and proceeded to the spot. He inspected the site and prepared site plan Ext. Ka-5. He took into possession the pieces of door Ext. 2 for which he wrote memo Ext. Ka-6. He recorded the statement of Sulochna Devi and took her petticoat Ext. 1 in his possession. He sealed this petticoat and wrote memo Ext. Ka-7.
3. The Investigating Officer after completion of investigation submitted charge sheet Ext. Ka-9 against the accused persons.
4. The prosecution in support of its case examined PW-1 Smt. Sulochna, prosecutrix, PW-2 Swami Manmathan, PW-3 Dr. Bina Rana, who had medically examined the prosecutrix, PW-4 Km. Pramila, PW-5 Indra Dutt Dangwal, Investigating Officer of the case.
5. The accused in their statement under Section 313 of Cr.P.C. have denied the prosecution case and alleged that they have been implicated at the instance of Swami Manmathan.
6. The Sessions Judge after considering the evidence and having heard counsel for the parties, convicted accused Sunder Lal under Section 457 of I.P.C. and awarded one year's R.I. The accused Dhanesh (since deceased) was convicted under Sections 457 and 376 of I.P.C. and was awarded sentence of one year's R.I. and 7 years' R.I. respectively.
7. Feeling aggrieved, both the accused/appellants have preferred this appeal before this Court.
8. Accused/appellant, Dhanesh had died long back on 21.12.1993 as is indicated by Vill
