Decided on April 12,2013

SHAHID Appellant


- (1.) Appellant has preferred this appeal assailing the judgment and order dated 15.02.2012 passed by Additional Sessions Judge/1st FTC, Haldwani, District Nainital in Sessions Trial No. 133 of 2009 whereby appellant was found guilty for the offence punishable under Section 376 IPC and was sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs. 2,000/- and in default, to undergo additional imprisonment of two months.
(2.) Brief facts of the present case, inter alia, are that PW2, mother of the prosecutrix PW1, lodged an FIR with police station Haldwani, District Nainital to the effect that on 15.05.2009 in the morning, she as well as her husband, left the house for their respective work; at about 03.00 p.m. prosecutrix, aged about 12 years, went to the house of her Bhabhi (wife of brother) Sarita; wherefrom to answer the call of nature, prosecutrix PW1 left the house of her Bhabhi and proceeded towards Gola River; four boys namely Chand and Waseem and two others, were standing on the spot; Chand and Waseem caught the prosecutrix; on this prosecutrix made hue and cry; at the same time, PW3 Santosh came on the spot and tried to save prosecutrix; PW3 was caught by Waseem and was assaulted by Waseem and his companions with kicks and fists; having threatened the prosecutrix, Chand committed rape upon her; when PW2 complainant came back to her house after finishing her work, she was told about the incident by her neighbours, prosecutrix, PW3 Santosh and Sarita, thereafter, she went to police station along with prosecutrix to lodge the report.
(3.) Having received the report, a check FIR was registered (Exhibit A7) at 09.30 p.m. on the same day i.e. on 15.05.2009. Investigation was handed over to PW6 Salaluddin. Prosecutrix was referred for medical examination. PW4 Dr. Anupama Hayanki, conducted medical examination on the person of prosecutrix while PW5 conducted ossification and Xray test for determining the age of prosecutrix. As per PW5, prosecutrix was a minor. As per opinion of PW4, no internal or external injury mark was found on the person of the prosecutrix; her vagina was easily admitting two fingers, her hymn was found torn; no bleeding or secretion was found from vagina; no definite opinion about sexual assault on the prosecutrix could be given.;

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