Decided on December 06,2013

SONU KUMAR Appellant


- (1.) This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 16.03.2007 passed by Sessions Judge, Tehri Garhwal in Sessions Trial No. 17 of 2006 State vs. Sonu Kumar , whereby accused/ appellant Sonu Kumar has been convicted under Section 376 of the Indian Penal Code, 1860 (for short I.P.C.) and has been sentenced to undergo rigorous imprisonment for ten years with fine of ' 20,000/- and in default of payment of fine further imprisonment for six months has been awarded. It is directed that the prosecutrix or her guardian shall be entitled to receive a sum of ' 10,000/- out of fine awarded to the accused.
(2.) Heard learned counsel for the parties and perused the Lower Court s Record.
(3.) The facts, leading to the appeal, are that on 11.06.2006 at 8:30 p.m., (PW-3) Madan Lal Semwal, father of Km. Malti @ Mavali (victim) lodged a written report (Ext.A-4) with the Station House Officer, Chamba, Tehri Garhwal alleging that on 10.06.2006 his daughter accompanied with her younger brother-Pradeep, aged 8 years, had gone Chamba for purchasing sugar. On that day, on reaching home, at about 2:00 p.m., his daughter reported that below the forest bungalow, one lad, whose hair were red in colour; light mustaches; thin in built; wearing half shirt-having red-white stripes with pant-jeans-ball mark in the pocket, obstructed her and put knife at her brother s neck. Km. Malti took off the knife from her brother s neck and asked him to flee and report the matter at home. Thereafter, when she tried to run back to Chamba, the lad caught her hair from backside and took her in the bushes below the pathway and raped her. It was reported that his daughter-Malti is minor having 14 years of age and she can identify the accused. It was reported that the complainant was busy in search of the accused, but the accused could not be traced out. On the basis of written report, a case crime no. 470 of 2006 was registered and a F.I.R. (Ext. A-5) was lodged against an unknown person under Section 376 I.P.C. and an entry was made in the General Diary (Ext. A-6). Investigation of the case was entrusted to Sub Inspector Kunwar Singh Bisht (PW-6) who during investigation, arrested the accused, prepared the arrest memo (Ext. A-8), took in possession the clothes of the accused as well as the victim and prepared recovery memos (Ext. A-9 and Ext. A-10), recorded statements of the witnesses and after making spot inspection prepared site plan (Ext. A-7). Thereafter, on 12.06.2006 at 12:00 noon, Dr. Kirti Bolkar, Medical Officer (PW-1) conducted medical examination of Km. Mavali at Govt. Combined Hospital, Baurari, New Tehri. In the medical examination (Ext. A-1), Doctor Kirti Bolkar mentioned that the victim was brought by Constable Hemlata Pandey in the hospital. On external examination, the doctor found one black mole on the right cheek of the girl, besides it she found abrasion on right side of face, 2 cm. from right eye, abrasion (multiple) on right shoulder, abrasion wound present extending on labia majora, no injury was found on breast. On being examined internally, the doctor found that hymen was ruptured, edges of hymen fresh tear present, white discharge was present in vagina and cervix. Smear was taken from the discharge and sent to pathology lab for examination. The doctor opined that injury nos. 1,2 & 3 were simple in nature. Opinion was reserved till pathological (smear examination of discharge) report. The doctor opined that possibility of rape could not be ruled out. For determination of age, the victim was referred to District Hospital, Narendra Nagar for the X-Ray of wrist joint and obtaining opinion of the Radiologist. In the pathology examination (Ext.A-2) the Pathologist reported that no spermatozoa were seen, as the patient has taken bath three times. On the basis of X-ray report, Dr. Kirti Bolkar prepared supplementary report (Ext. A-3). On being X-rayed right wrist, all carpal bones were found present. Epiphysis of lower end of radius and ulna were not found fused with their respecting shaft. On being X-rayed right elbow, all epiphysis were found fused around elbow joints, except medial epicondyle. The doctor opined that according to radiological examination given by Suman Hospital, Narendra Nagar, the age of the girl was between 13-14 years. The Investigation Officer obtained report from the office of Executive Officer, Municipal Board, Chamba, which is Ext. A-11 on the record. Completion of investigation culminated into filing of charge sheet Ext. A-12 against the accused/appellant.;

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