Prafulla C. Pant, J. -
(1.) THIS appeal is received through Superintendent District Jail Dehradun, filed on behalf of the accused Raju (S/o Late Lal Bahadur). The appeal is directed against the judgment and order dated 26.9.2008, passed by Sessions Judge. Dehradun, in Sessions Trial No. 61 of 2007, whereby said court has convicted the accused/appellant Raju under Section 376 of I.P.C. and sentenced him to rigorous imprisonment for a period of seven years and directed to pay fine of Rs. 10,000. Heard learned amicus curiae for the appellant, and learned A.G.A. for the State, and perused the lower court record.
(2.) PROSECUTION story, in brief, is that on 3.10.2006, at about 3.00 p.m., P.W. 1 Nirmala Devi gave First Information Report to Patwari Mohana Tehsil Chakrata alleging that her younger sister Kavita @ Tanu, who was aged 9 years, told her that at about 7.00 a.m., (on 3.10.2006), in the grove of contractor Lal Singh, she (Kavita @ Tanu) was raped by accused Raju. She further alleged that on removing the under -garments of her younger sister she found that she (Kavita) was bleeding from her private parts (In certain areas of Uttarakhand hills revenue officials are given police powers). On the basis of above oral report Crime No. 2 of 2006 was registered by Patwari Mohana, who started investigating the crime. He took the victim (Kavita @ Tanu) to the women's hospital Dehradun, where she was medically examined by P.W. 6 Dr. Saroj Naithani. The said Medical Officer found that the child was bleeding from her vagina. She (P.W. 6) prepared injury report and advised X -ray for determination of age of the girl. After receiving X -ray report she prepared supplementary medical report observing that the girl was aged approximately twelve years. After interrogating the witnesses, the Investigating Officer P.W. 8 Ram Kumar Juyal to whom the investigation was later transferred submitted charge -sheet against the accused Raju (S/o Lal Bahadur), for his trial in respect of offence punishable under Section 376 of I.P.C. Special Judicial Magistrate, Dehradun, on receipt of the charge -sheet, appears to have committed the case to the Court of Sessions for trial. On 12.11.2007, learned Additional Sessions Judge, Dehradun, after hearing the parties framed charge of offences punishable under Sections 366 and 376 of I.P.C., against accused Raju who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Nirmala Devi (informant), P.W. 2 Katku, P.W. 3 Kavita (victim), P.W. 4 Prabha Rawat, P.W. 5, Dr. C.S. Bhardwaj, P.W. 6 Dr. Saroj Naithani (who medically examined the victim), P.W. 7 Chabi Ram and P.W. 8 Sub Inspector Ram Kumar Juyal (who completed the investigation). Oral and documentary evidence was put to the accused, under Section 313. Cr. P.C., in reply to which he pleaded that the evidence adduced against him is false. No evidence in defence was adduced. The trial court after hearing the parties found that the prosecution has successfully proved charge of offence punishable under Section 376 of I.P.C., against accused Raju, and convicted him accordingly. After hearing on sentence, the trial court sentenced the convict to rigorous imprisonment for a period of seven years. Aggrieved by said judgment and order dated 26.9.2008, passed by learned Sessions Judge, Dehradun in Sessions Trial No. 61 of 2007, this appeal was got sent by the convict from District Jail, Dehradun, at belated stage. Delay in filing the appeal is condoned since the accused was unrepresented, Shri A.M. Saklani, advocate, is appointed an amicus curiae to assist the Court on behalf of the appellant.
(3.) BEFORE further discussion, this Court thinks it just and proper to mention about the observations made by P.W. 6 Dr. Saroj Naithani in her medical report prepared by her on 3.10.2006, at 11.15 p.m. The said Medical Officer has mentioned in the medical report (Ext. A -3) that the height of the girl (Tanu) was 3 ft and 11 inches. She had 12 upper teeth and 11 lower teeth. Her breast was not developed. She further observed that there was slight bleeding from vagina of the girl. She further observed that with great difficulty, one finger could be inserted in the vagina and her hymen was found ruptured. In the medical report dated 3.10.2006, it is further observed by the Medical Officer for determination of age, wrist and elbow and ankle and knee be X -rayed. In her supplementary report after receiving the X -ray reports P.W. 6 Dr. Saroj Naithani has observed that approximately age of the girl was about twelve years.;