Decided on December 17,2012

Jagdish Arya Appellant


- (1.) 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 13.07.2012, passed by Additional Sessions Judge/ II Fast Track Court, Nainital, in Sessions Trial No. 45 of 2011, whereby said court has convicted accused/appellant Jagdish Arya @ Jagdish Kaliya under section 342 and 376 IPC. He has been sentenced to simple imprisonment for a period of six months and directed to pay fine of Rs. 500/- under section 342 IPC and rigorous imprisonment for a period of seven years and directed to pay fine of ' 5,000/- under section 376 IPC.
(2.) Heard learned counsel for the parties, and perused the lower court record.
(3.) Prosecution Story in brief is that on 12.12.2010, P.W.1 Kailash Chandra Arya gave first information report (Ex. A1) at 7:30 p.m., at police station Kotwali Haldwani, District Nainital, alleging that on said date at about 6:30 p.m., accused Jagdish Arya @ Jagdish Kaliya called his minor sister Guddi to fetch a pack of BIRI whereafter he (Jagdish Arya) closed the door of his room from inside and attempted to commit rape on her. It is further alleged in the first information report that Guddi (P.W.3) shouted on which people from neighbourhood and gathered, broke opened the door. On the basis of said report FIR No. 563 of 2010, was registered against accused Jagdish Arya @ Jagdish Kaliya relating to offences punishable under section 342 and 376/511 IPC. The investigation was taken up by Sub Inspector K.C. Joshi (P.W.7) the girl was taken to hospital for her medical examination. P.W.6 Dr. Anita Bhatt medically examined the girl (Guddi) on the very day (12.12.2010) at 10:00 p.m. She observed in her medical report (Ex. A3) that there were no marks of injury, laceration or bleeding. However, the hymen was not intact and vagina was admitting only one finger. The medical officer did not find any redness etc., in the private parts. For determination of the age x-ray was advised, and after x-ray P.W.6 Dr. Anita Bhatt prepared supplementary report (Ex. A4) opining that the girl was aged between 14-16 years. However, she further opined in her supplementary report that the girl had underwent sexual intercourse without mentioning as to when she had underwent the same. It appears that on 13.12.2010, statement of the girl (P.W.3 Guddi) was got recorded under section 164 Cr.P.C., before the Civil Judge (Jr. Div.)/ Judicial Magistrate, Haldwani. After interrogating the witnesses, and on completion of investigation P.W.8 S.I. S.K. Pande to whom investigation was transferred, submitted charge sheet (Ex. A8) against accused Jagdish Arya @ Jagdish Kaliya for his trial in respect of offences punishable under section 342 and 376 IPC.;

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