Decided on August 22,2013

Salim And Others Appellant


Sudhanshu Dhulia, J. - (1.) At the outset, it needs to be mentioned here that the present matter pertains to Section 376 of the I.P.C. By an amendment in the Indian Penal Code, Section 228Ahas been inserted vide Act No. 43 of 1983, in order that the identity of the alleged victims of the offence under Section 376 I.P.C. may not be disclosed. Although, printing and publication in law journal may not be strictly included in the definition of printing and publication he purely for reasons of abundant precaution, the name of the alleged victim has not been mentioned in the present judgment and the alleged victims are only addressed as "prosecutrix".
(2.) Present Criminal Appeal arises out of judgment and order dated 16-10-2004 passed by the learned Sessions Judge, District Udham Singh Nagar in Sessions Trial No. 376 of 2002 whereby present appellant no. 1 has been convicted under Section 363, 366 and 376 Indian Penal Code and sentenced for 7 years of rigorous imprisonment and a fine of INR 5000/- under Section 363 Indian Penal Code, 7 years of rigorous imprisonment and a fine of INR 5000/- under 366 Indian Penal Code and 10 years of rigorous imprisonment and a fine of INR 10, 000/- under Section 376 Indian Penal Code. The remaining appellants i.e. appellant no. 2 and 3 have been convicted under Section 363 and 366 Indian Penal Code and have been sentenced for rigorous imprisonment of 7 years and a fine of INR 5, 000/- under Section 363 Indian Penal Code and rigorous imprisonment and a fine of INR 5, 000/- under 366 Indian Penal Code .
(3.) The first information report (for short, FIR) in this matter was lodged on 20-11 -2001 by the father of the prosecutrix namely Dulha Hasan at Police Station Nanakmatta, District Udham Singh Nagar stating that on the intervening night of 16/17-11 -2001 at about 11:00 PM in the night his daughter i.e. the prosecutrix left the house in order to answer the call of nature and she did not return. The FIR further states that she has been kidnapped by some persons of the same village who were named as Salim S/o Safi Ahmad, Ejaj S/o Irshad, Ateek S/o Saddiq and Noori D/o Hamij Raja. He further states in the FIR that his daughter has taken from his house INR 22, 000/- (Rupees Twenty Two Thousand) in cash and that persons of the same village namely Abrar, Chota and Kutub Hussain have also seen these persons taking away his daughter. The complainant in the end states that he tried to search his daughter but in vain and therefore he is lodging this FIR. Pursuant to the FIR, the police commenced an investigation and thereafter from the available record it appears that all the accused persons were arrested on 21-11-2001 from a bus stop of a nearby village called Pratappuratabout5:15 P.M. On the next day i.e. on 22-11-2001, the prosecutrix was sent for a medical examination at the Community Health Centre, Khatima, district Udham Singh Nagar where she was examined by a lady doctor namely Dr. Sushma Negi. The medical report states that her teeth are 7+8/8+8, her breasts are well developed, public and axillary hair well developed, hymen is old healed and vagina admits two fingers easily. Further it was noticed that there were no signs of injury on the private parts, breasts or on any other part of the body. It was further recorded in the medical report that as per the girl she is menstruating and her LMP (Last Menstrual Period) is 3 days. Thereafter the vaginal smear was taken and two slides were prepared and sentfor the detection of spermatozoa or semen and other details. The prosecutrix was also referred for a bone ossification and radiological in order to determine her age. In the medical report it was found that vaginal smear contains only blood and there no spermatozoa was seen. This is further corroborated from the statement of girl given before the doctor as well as from the clinical examination that the prosecutrix was in her menstrual period. The X-ray report says that elbow joint AP view shows all the epiphysis around the elbow joint are fused with their corresponding bones, and the epiphysis of distal end of radius is under process of fusion and the distal end of ulna bone are fused. Consequently an opinion was given that the girl is between 16-18 years of age. It was further opined that "there are no signs of recent sexual activity present but she is habitual to sexual intercourse". Her clothes i.e. her "salwar" and under garments were handed over to the police which were then sent for forensic examination. The forensic examination report shows that whereas the blood was found on "salwar", blood was not found on the undergarments but spermatozoa was found on the "salwar" as well as on the undergarments.;

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