IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Appeal No. 1688 of 2001

(Old No. 1553 of 1997)

1.

Ram Swarup

S/o Shri Sunder Lal

R/o Lambarpur Par Farm, Shyampur

Khadri, P.S. Rishikesh

District Dehradun

2.

Pappu @ Satya Prakash

S/o Shri Anand Prakash

R/o Town Rudraprayag, District Chamoli

……….Appellants

(In Jail)

Versus

State of U.P. (now State of Uttarakhand)

…………Respondent

Shri Lokendra Dobhal, Advocate, present for the appellants.

Shri M.A. Khan, and Shri B.S. Parihar, Brief Holders, present for the

state.

Hon’ble Prafulla C. Pant, J.

This appeal , preferred under section 374 of

Code of Criminal Procedure, 1973, (for short

Cr.P.C) is directed against the judgment and order

dated 29.08.1997 passed by Sessions Judge, Tehri

Garhwal, in Sessions Trial No. 11 of 1996

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whereby said court has convicted the appellants

namely Ram Swarup and Pappu @ Satya Prakash,

under section 376 and 323 read with section 34 of

Indian Penal Code, 1860 (for short I.P.C.). Each one

of them has been sentenced by the trial court to

undergo rigorous imprisonment for a period of 10

years under section 376 IPC and rigorous

imprisonment for a period of 1 year under section

323 read with section 34 I.P.C.

2.

Heard learned counsel for the parties and

perused the lower court record.

3.

Prosecution story in brief is that on 19.02.1996

at about 8:45 P.M, P.W. 1 Paola Velencich, an Italian

citizen, alongwith her Israeli friend Hava

Hobsmann was waiting for a three-wheeler

(Vikram/ Tempo) at Rishikesh market so that they

may go towards Laxman Jhoola and Ram Jhoola.

A three-wheeler (Tempo/Vikram six seater)

stopped near them in which three Indian

nationals were already in. The aforesaid two

foreign nationals boarded the three-wheeler.

Hava Hobsmann got down near Ram Jhoola

crossing where after two Indian nationals

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travelers also got down near Ram Jhoola Police

Station. P.W. 1 Paola Velencich, complainant was

the only traveler in the vehicle alongwith the

three-wheeler rikshaw driver and his friend for a

journey ahead. When the three-wheeler was

heading towards Laxman Jhoola, suddenly the

driver diverted and drove it towards Omkaranand

Ashram. The complainant realised that it is not the

way for Laxman Jhoola and immediately asked

the three-wheeler driver to stop the vehicle.

However, the driver's friend jumped in the seat

behind and assaulted the complainant. The three-

wheeler was stopped at some distance and the two

(driver and his friend) took the complainant

towards the forest. Both of them firstly beat

complainant and thereafter committed rape on

her, one after another. Prosecution case is that after

the complainant was beaten and raped she was

left there. The complainant had to walk down to

the Ashram in Laxman Jhoola where she was

staying. She reached there at about 10:30 P.M.. She

remained in disturbed state of mind for three days

whereafter she contacted the Italian Embassy and

informed about the incident. The Embassy advised

her to get lodged first information report with

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local police. On 23.02.1996, P.W.1 Paola Velencich

lodged FIR (Ex. A1) at Police Station Muni Ki Reti

at about 14:30 hours. She mentioned in her report

that the two accused were aged 22-24 years, and

during the talks among themselves one was

addressing another as Pappu. On the basis of said

report Police prepared chick report (Ex. A6) and

registered crime no. 55 of 1996 relating to offences

punishable under section 376, 323, 504 I.P.C.,

against the Pappu, tempo driver, and his

colleague. Investigation was taken up by P.W. 8

Sub-Inspector Man Singh Dagar. On the very day

Paola Velencich (P.W.1) aged 28 years, was taken to

the hos