Prafulla C. Pant, J. -
(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 09.04.1999, passed by Vth Additional Sessions Judge, Nainital, in Sessions Trial No. 85 of 1998, whereby said court has convicted the accused/appellant Baboo Ansari under section 366 and 376 of I.P.C., and sentenced him to rigorous imprisonment for a period of five years and directed to pay fine of '1,000/ - (under section 366 of I.P.C.), and rigorous imprisonment for a period of ten years and directed to pay fine of Rs. 10,000/ - (under section 376 of I.P.C.). Heard learned counsel for the parties, and perused the lower court record.
(2.) PROSECUTION story, in brief, is that PW1 Sinder Pal lodged First Information Report (Ex A1) at Police Station Sitarganj, on 13.11.1997, complaining that her elder brother Jarnail Singh's sister in law namely Kripal Kaur (PW3) aged around 16 -17 years has been enticed away and kidnapped by accused/appellant Baboo Ansari, who was servant of Jarnail Singh in his flour mill. The incident is said to have occurred in the intervening night and 10 -11 of November 1997, whereafter the informant and other members of the family made search for Kripal Kaur and thereafter they came to know from Mahendra Singh (PW2) and Suchha Singh that they had seen accused/appellant Baboo Ansari taking the girl with him. On the basis of the above First Information Report, the police registered Crime No. 480 of 1997. The investigation was taken up by Sub Inspector Jitendra Kumar Tyagi (PW5), who interrogated the witnesses. On 05.12.1997, the girl (Kripal Kaur) was recovered from the custody of accused/appellant Baboo Ansari near crossing of village Daraha. The girl was medically examined and her statement was got recorded under section 164 of Cr.P.C. After completion of investigation, the Investigating Officer submitted charge sheet (Ex A -10) against accused/appellant Baboo Ansari, for his trial in respect of offences punishable under section 363, 366 and 376 of I.P.C. The Magistrate, on receipt of 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. On 23.06.1998, learned Additional Sessions Judge, Nainital, after hearing the parties framed charge of offences punishable under section 366 and 376 of I.P.C., against the accused Baboo Ansari, who pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 Sinder Pal (informant), PW2 Mahendra Singh, PW3 Kripal Kaur (the girl said to have been abducted), PW4 Dr. Kamla Mishra (who medically examined the girl), and PW5 Sub Inspector Jitendra Kumar Tyagi (Investigating Officer). The oral and documentary evidence was put to the accused under section 313 of Cr.P.C., in reply to which the accused pleaded that the evidence adduced against him is false. In defence he got examined DW1 Tashabbar and DW2 Farukh Sah. The two witnesses have stated that the girl wanted to marry accused/appellant Baboo Ansari. However, the trial court after hearing the parties, found that the prosecution has successfully proved charge of offences punishable under section 366 and 376 I.P.C., against the accused/appellant Baboo Ansari and convicted him accordingly. After hearing on sentence the convict (Babbo Ansari) was sentenced to rigorous imprisonment for a period of five years and directed to pay fine of Rs. 1,000/ - under section 366 of I.P.C, and rigorous imprisonment for a period of ten years and directed to pay fine of Rs. 10,000/ - under section 376 of I.P.C. Aggrieved by said judgment and order dated 09.04.1999, passed by Vth Additional Sessions Judge Nainital, in Sessions Trial No. 85 of 1999, this appeal was filed by the convict before Allahabad High Court from where it was admitted, the appeal is received by transfer under section 35 of U.P. Reorganization Act 2000 (Central Act, 29 of 2000), for its disposal.
(3.) BEFORE further discussion this Court thinks it just and proper to mention here that in view of the statement of PW4 Dr. Kamla Mishra, the Medical Officer, who examined the girl (Kripal Kaur), and prepared medical report (Ex A -2), it is clear that no external injury wa5 found either on the private parts or any other part of the body of the girl. Said witness PW4 Dr. Kamla Mishra has prepared supplementary medical report (Ex A -3), after receiving the x -ray reports of the girl and opined that the girl was aged above 18 years.;