Decided on March 06,2012

RAM NARESH Appellant


Servesh Kumar Gupta, J. - (1.) THIS is a jail appeal preferred by the convict appellant, being in caption, challenging the judgment and order dated 09.01.2008 rendered by Additional Sessions Judge, Dehradun in Sessions Trial No. 155 of 2006 titled as State Vs. Ram Naresh. In the said judgment, learned Additional Judge has found the appellant guilty for the offence under Section 363, 366, 376 IPC. Appellant was sentenced to undergo 7 -year rigorous imprisonment along with fine of Rs. 5,000/ - under section 363 IPC and in default of payment of fine, he was directed to undergo one year's additional imprisonment. He has been sentenced to undergo 7 -year rigorous imprisonment nay fine Rs. 5000/ - under Section 366 IPC and in default of payment of fine, he has been directed to undergo one year's additional imprisonment. He has been sentenced to undergo 10 -year rigorous imprisonment nay fine of Rs. 10,000/ - under Section 376 IPC and in default of payment of fine, he has been directed to undergo 2 -year's additional imprisonment.
(2.) THE incident relates back to 02.08.2006 at about 07.00 p.m., within the territorial jurisdiction of Police Station Patel Nagar, District Dehradun. The victim is an infant baby of 3 -4 year of age while accused is a man of 33 -year. Family of the victim and accused resided in tenanted rooms situated diagonally within the same precinct. Father of victim Allauddin was a labour and had left his house on the fateful day in the morning. When he reached to his abode at about 07.00 p.m. in the evening, he noticed that his 3 -year old daughter named Nagma was lying on the ground and his wife & children were weeping. On being asked the reason, it was disclosed by Nazima (his wife) that Ram Naresh (neighbour), resident of Seewan, Bihar Province, took Nagma to his room and raped her. Hearing the screams, they rushed to the room of Ram Naresh. When accused felt presence of Nazima and Haseena (sister of victim) outside the gate of his room, he opened the door of room and escaped from the spot shoving the incumbents and leaving the victim inside room. They noticed that blood was oozing from the private part of Nagma. She was indicating, as if, she was suffering with pain. After hearing Nazima, Allauddin lodged the First Information Report at Police Station, which is Exhibit Ka -1 (Chick First Information Report is Exhibit Ka - 11) on the same day at about 08.20 p.m. After investigation police submitted charge sheet against Ram Naresh for the offence under Section 376, 511 IPC, which is Exhibit Ka -10. Prosecution has examined PW1 Allauddin, PW2 Nazima, PW3 Haseena, PW4 Sub Inspector K.S. Gabriyal, PW5 Dr. Padma Rawat and PW6 Dr. G.S. Rana Radiologist. After recording the evidence, statement of Ram Naresh was recorded under Section 313 Cr.P.C. in which he denied the occurrence. Accused appellant in his defence disclosed that Allauddin has taken some money to perform marriage of his sister and when money was demanded back instead of returning the debt he was falsely implicated.
(3.) BEFORE analyzing and scrutinizing the oral testimony, it is significant to note down the medical report of victim Nagma, who was examined by the Dr. Padma Rawat on the same day i.e. on 02.08.2006 at 10.00 p.m. in Doon Mahila Hospital, Dehradun. She has noted that there was no mark of injury over the body of victim. She has further noted that there was no mark of injury on private part of victim and her hymen was intact and she was of the view that no definite opinion regarding rape could be given. For age estimation, victim Nagma was sent to Dr. G.S. Rana, Radiologist at Doon Hospital and the medical examination report prepared by Dr. G.S. Rana is Exhibit Ka -13. In the supplementary report, which is about vaginal smear, it has been noticed that no spermatozoa was found. As per radiologist report, after examination of various bones joints her age was detected to be 3 -4 year. These supplementary reports are Exhibit Ka - 15 and Ka -16. It is also pertinent to mention that one stained blue check lungi and one stained white bed sheet were taken into possession by the Investigating Officer and the same were sent to Forensic Science Laboratory, Uttaranchal for examination, report of which is Exhibit Ka - 18. After intensive scientific examination of these two clothes, semen could not be detected on either of the clothes while hymen blood was detected on them.;

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