Criminal Appeal Nos. 29, 34 and 41 of 2014. Case: Jitendra Kumar and Ors. Vs State of Uttarakhand. Uttarakhand High Court

Case NumberCriminal Appeal Nos. 29, 34 and 41 of 2014
CounselFor Appellant: R.P. Nautiyal, Sr. Adv. assisted by C.S. Rawat, Advocate and For Respondents: Nandan Arya, Dy. Advocate General
JudgesRajiv Sharma, J.
IssueCode of Criminal Procedure, 1973 (CrPC) - Sections 161, 313; Indian Evidence Act, 1872 - Section 114; Indian Penal Code 1860, (IPC) - Sections 114, 34, 373, 376
Judgement DateJanuary 11, 2017
CourtUttarakhand High Court


Rajiv Sharma, J.

1. Since the common questions of law and fact are involved in these appeals, hence all these appeals are taken up together and decided by this common judgment.

2. These appeals are instituted against the judgment dated 30.01.2014 rendered by the First Additional Sessions Judge, Rishikesh (Dehradun) in Sessions Trial No. 97 of 2010, whereby, all the appellants/accused, (hereinafter referred as 'the accused'), who were charged with and tried for the offences punishable u/s. 373 r/w Section 34 IPC, were convicted u/s. 373 r/w Section 34 IPC and sentenced to undergo five years' imprisonment with fine of Rs. 5,000/- each and in default of payment of fine, to undergo additional imprisonment for four months.

3. Case of the prosecution, in a nutshell, is that an F.I.R. was lodged by PW3 Jai Prakash Mishr. It was stated in the F.I.R. that a man had come on 3.8.2008 at 2 PM at Hotel Uttaranchal, Dehradun Road, Rishikesh. He booked the Room No. 102. In the guest register, he mentioned his name S.K. Sharma, T.H.D.C. Ltd., Koteshwar. He alone stayed in the room. Thereafter, at 11:30 in the night, three more men and two women came in the hotel. They went in Room No. 102. Thereafter, Mr. S.K. Sharma came at the reception and demanded one more double-bed room. Then the receptionist PW2 Vaibhav Bhatt gave them Room No. 107. After that one Dinesh, who was staying in Room Nos. 108 and 109, came at the reception and informed PW2 that the persons occupying Room No. 107 were misbehaving and they were under the influence of alcohol. PW3 Jai Prakash Mishr, the Manager of the Hotel, was apprised of the situation at 3 a.m. by PW2 Vaibhav Bhatt. PW3 went to Room No. 107. He peeped into the room and saw that lot of damage had been caused to the property. He saw the occupants of the room in naked and semi-naked condition and committing obscene acts. They were also involved in prostitution.

4. Thereafter, the F.I.R. was registered. Police reached at the spot. Police went to the Room No. 107 of the hotel at 4 a.m. of the morning. One man, in semi-naked condition, ran away from the room. He was chased but could not be nabbed. Thereafter, the Investigating Officer enquired the name of other occupants of the room. Police then effected the search of the accused persons. Recovery memos were prepared. Accused were arrested. The matter was investigated and the Challan was put up after completing the codal formalities under Sections 373/376 IPC.

5. Prosecution has examined a number of witnesses in support of its case. Accused were also examined under Section 313 Cr.P.C. They have denied the case of the prosecution.

6. The accused were convicted and sentenced, as noticed hereinabove. Hence these appeals.

7. Learned Senior Counsel, appearing on behalf of all the accused, has vehemently argued that the prosecution has failed to prove its case against the accused beyond reasonable doubt.

8. On the other hand, learned Deputy Advocate General, appearing for the State, has supported the judgment dated 30.01.2014 rendered by the Trial Court.

9. I have heard learned Senior Advocate appearing on behalf of all the appellants as well as learned Dy. Advocate General appearing for the State and have perused the impugned judgment and trial court record very carefully.

10. PW1 Dr. D.S. Rawat has deposed that on 20.8.2003, he was working as a Radiologist in Doon Hospital. On that day, he had examined Km. Pooja who was brought by Constable Rajeshwari Mamgain. He had undertaken her X-ray. According to him, the age of Km. Pooja was between 16-17 years.

11. PW7 Dr. Sushmita Verma has deposed that on the relevant day, she was posted as Medical Officer in S.P.S. Govt. Hospital, Rishikesh. On that day, she examined Km. Pooja. This witness also examined Km. Roshni. She has proved the medical reports. According to this witness, the age of Km. Pooja could be 17 years. However, she has stated that no opinion could be given about the sexual intercourse.

12. PW2 Vaibhav Bhatt has testified that he was working as Receptionist in Hotel Uttaranchal. He had gone to have his lunch on 3.8.2003. When he returned, Waiter Rajendra informed him that one room was booked in the name of one Mr. Sharma. Perhaps, it was Room No. 102. At 8 of the night, 3-4 people had come. Thereafter, in the night hours, Room No. 107 was given to them. Three men, one mother and her daughter were staying in those rooms. The person occupying Room No. 108 had informed him that the persons occupying Room No. 107 were disturbing them. He narrated the incident to the Manager. The Manager then informed the police. Police came in the hotel and went inside the room. They saw the ladies in naked condition. Police took away 3-4 persons with them.

13. PW2 Vaibhav Bhatt however has categorically deposed that accused Krishan Kand...

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