Decided on August 16,2013

Sunil @ Sushil Appellant


- (1.) This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973, is directed against judgment and order dated 09.10.2012, passed by learned Additional Sessions Judge, Roorkee, in Sessions Trial No. 235 of 2009, whereby said court has convicted accused/appellant Sunil@Sushil, under Section 363, 366A and 376 of I.P.C. He has been sentenced to rigorous imprisonment for a period of three years and directed to pay fine of Rs. 1000/- under Section 363 of I.P.C., rigorous imprisonment for a period of four years and directed to pay fine of Rs. 1000/- under Section 366A and rigorous imprisonment for a period of seven years and directed to pay fine of Rs. 2000/- under Section 376 of I.P.C.
(2.) Heard learned Amicus Curiae for the appellant, and learned counsel fore the State, and perused the lower court record.
(3.) Prosecution story in brief is that PW1 Puja (victim) aged 15 years, was going to her school on 23.07.2009. On that day, she did not return home and search was made by her parents. On the next day, she was found near the canal by her father Rajpal (PW2) and uncle Pehel Singh. She disclosed her father that she was enticed away by accused Sunil @ Sushil, who took her on a Tempo (three-wheeler) to Roorkee, where she was kept in a hotel room and she was subjected to rape. Whereafter, accused left her and some how she came out from the hotel. PW2 Rajpal Singh gave First Information Report (Ex. A1) of the incident at Police Station Jhabereda, where Crime No. 79 of 2009, was registered against the accused Sunil @ Sushil, in respect of offences punishable under Section 366A, 376 and 506 of I.P.C. The investigation was taken up by PW6 Sub-Inspector D.C. Gupta. The girl (Puja) was taken to Civil Hospital, Roorkee, where she was medically examined by PW4 Dr. Kamal (lady Medical Officer). The said Officer prepared her report (Ex. A3) on 25.07.2009. Though, no mark of injury was seen on the private parts of the victim, but her hymen was found ruptured. PW4 Dr. Kamal advised X-ray of joints of right elbow, knee and wrist for determination of her age. She also took slides of vaginal smear and sent it for examination. PW3 Dr. Yogesh Kumar, after Radiological Examination found that there was partial fusion of epiphysis in the wrist joint of radius and ulna. Similarly, partial epiphysis was found in the knee joint between the tibia and fibula. The radiologist opined in his report (Ex. A2) that the girl was aged between 16-171/2 years. It appears that the victim was thereafter taken to the Magistrate for getting recorded her statement under Section 164 of Cr.P.C. The 2nd Additional Civil Judge (Junior Division)/Judicial Magistrate, Roorkee, on 28.07.2009, recorded the statement of the girl, where she disclosed that the boy, who met her on her way to school, brought his hand close to her mouth and she started feeling giddiness. Whereafter, the accused took her and made her sit in a Tempo (three wheeler). The victim has further narrated that thereafter, she was taken by said boy to a hotel room. She further told that she started crying and came out, whereafter she met her father near the canal. After interrogating the witnesses, and on completion of investigation, Investigating Officer submitted charge sheet (Ex. A7) against the accused Sunil @ Sushil for his trial in respect of offences punishable under Section 363 and 366A of I.P.C.;

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