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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Appeal No. 806 of 2001

(Old No. 297 of 2000)

1. Om Prakash

S/o Shri Babu lal

R/o village Jule

P.S Sahaspur

Dist Dehradun

2. Pappu

S/o Shri Ram Chandra

R/o Village Etanbagh

Hurbutpur, P. S

Vikas Nagar, Dist Dehradun

...........Appellants(In jail)

Versus

State of U.P (now State of Uttarakhand)

…..................Respondent

Ms. Geeta Parihar Advocate, Amicus Curiae for appellants.

Shri P.S.Bohara, Brief Holder, for the State.

Coram: Hon’ble Prafulla C. Pant, J.

Hon'ble Sudhanshu Dhulia, J.

Oral: 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

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against the judgment and order dated 27.01.2000, passed

by IInd Additional Sessions Judge, Dehradun, in Special

Sessions Trial No. 12 of 1998, whereby said court has

convicted the appellants namely Om Prakash and Pappu

under section 376 (2) (g) of Indian Penal Code, 1860,

(for short I.P.C.) and under section 3 (2) ( V) of

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989. Each of the convicts is sentenced

to rigorous imprisonment for a period of ten years and

directed to pay fine of ` 500/- under section 376 (2) (g)

I.P.C, and imprisonment for life under section 3 (2) (V) of

Scheduled Castes and Scheduled Tribes (prevention of

Atrocities) Act, 1989.

(2)

Heard learned Amicus Curiae on behalf of the

appellants, and Shri P.S.Bohara, Brief Holder, for the

State.

(3)

Prosecution story, in brief, is that PW1 Saroj is a

member of Scheduled Caste, and an illiterate lady. Her

husband was bitten by a dog. PW1 Saroj along with her

sister in law Kidi ( a dumb lady) had gone to take some

soil for the treatment of her husband on 23.02.1998 to

village Ramsahay wala. On her return, when she reached

near school, accused/appellants Om prakash and Pappu,

who were in a drunken state, dragged Saroj towards the

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sugarcane field, and they committed rape on her, one

after another. On the next day, PW1 Saroj reported the

incident to Village Pradhan Vijay Ramola @ Madan Lal,

and member of Kshetra Panchayat, Mangal Singh. The

Village Pradhan called Panchayat on 26.02.1998, in

which accused Pappu was given shoe beating on

complaint of Saroj (PW1), but accused Om Prakash did

not turn up. Thereafter on 28.02.1998, complainant

(PW1) gave First Information Report (Ex A1) at police

station Sahaspur against the two accused. On the basis of

which crime no. 82 of 1998 was registered against the two

accused relating to offence punishable under section 376

(2) (g) I.P.C ., and one relating to offence punishable

under section 3(2) (V) of Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The investigation started by Sub Inspector Chote Lal

Tamta, and later transferred to Deputy Superintendent

Police Ramanand Gautam. A victim was sent for medical

examination on 28.02.1998. Dr. Renuka Naithani

examined her, but no opinion regarding rape was given

by her, in her report (Ex- A4). The Investigating Officer

after completion of the investigation, submitted charge

sheet (Ex A10) against the two accused namely Om

Prakash and Pappu, for their trial in respect of offences

punishable under section 376 and 506 I.P.C., and one

punishable under section 3 (2) (V) of Scheduled Castes

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and Scheduled Tribes (Prevention of Atrocities) Act,

1989.

(4)

The IV Additional Chief Judicial Magistrate,

Dehradun, on receipt of the charge sheet, after giving

necessary copies to the accused, as required under section

207 of Cr.P.C, appears to have committed the case to the

court of Sessions for trial. The IInd Additional Sessions

Judge, Dehradun, to whom the case was transferred, on

05.03.1999, after hearing the parties, framed charge of

offences punishable under secti