Decided on May 02,2013

Kaluwa S/O Rakesh Appellant


- (1.) This appeal preferred u/s 374 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) is directed against the judgment and order dated 08.02.2010 passed by Sessions Judge, Haridwar in Sessions Trial no. 109 of 2008 'State vs. Kaluwa', whereby the learned Sessions Judge has convicted the accused/appellant for the offence punishable under Section 376, 354 and 506 (2) of The Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and sentenced him to undergo rigorous imprisonment under Section 376 I.P.C. for a period of seven years with a fine of Rs. 5,000/- and in default of payment of fine further rigorous imprisonment for a period of six months, six months rigorous imprisonment under Section 354 I.P.C. and one year's rigorous imprisonment under Section 506 (2) I.P.C. It was directed that all the sentences shall run concurrently.
(2.) I have heard Mr. Parikshit Saini, learned counsel for the accused/appellant, Mrs. Mamta Bisht, learned Addl. Govt. Advocate & Ms. Sangeeta Miyan, Brief Holder for the State.
(3.) The prosecution case, in nutshell, is that on 25th November, 2007, Km. Neha Thakur-the victim, lodged a First Information Report with the Police Station Kankhal, District Haridwar with the assertion that she is residing with her parents at Mohalla Kumar Ghara, Shekhpura, Haridwar in the house of Krishna Kumar. Her father Anil Kumar works as Ward Boy in Ramkrishna Mission Hospital and used to go to his duty at 8:00 a.m. Her mother-Seema also used to go in the morning for work at Lallu Vaidh's place. In the F.I.R., she stated that 2-3 months before, in the absence of her parents, two tenants, namely, Kaluwa and Shani both sons of Rakesh residing in the same building had intercourse with her and thereafter too, they forcefully committed rape on her. It is reported that on 23.11.2007, Kaluwa caught her forcibly and did obscene act with her. She cried. On hearing her screams, the landlord-Krishna Kumar came at the spot, who rescued her from the clutches of Kaluwa. On hearing her voice, her mother-Seema also reached there. The accused threatened her that if she discloses to her parents about the incident, in that event they might kill her and her parents as well. She prayed that report may be lodged and necessary action may be taken. On same day, i.e. on 25th November, 2007 the girl was medically examined by (PW-4) Dr. Asha Sharma, Medical Officer at G.R.W. Hospital, Haridwar. In her medical report, the doctor has mentioned that no mark of injury was seen over the body of the victim. It was also mentioned in the medical report that no mark of injury was seen externally over private parts. No odema seen, menstrual blood was coming out. It was also mentioned in the internal examination that the hymen was torn, old healed tear present, vagina admitted two fingers easily, uterus normal size. After preparing vaginal smear slide, the same was sent for pathological examination. For determining the age of the girl, she was sent for conducting X-Ray. In supplementary medical report is was mentioned that in vaginal smear, no spermatozoa dead or alive were seen. The doctor opined that the girl was around 16-17 years of age. The doctor further opined that no definite opinion about rape could be given, as she was used to sexual intercourse.;

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