Decided on April 18,2013

Manish Phartiyal Appellant


Sudhanshu Dhulia, J. - (1.) PRESENT Criminal Appeal arises out of a judgment and order dated 10.11.2008 passed by the learned Sessions Judge, District Pithoragarh in Sessions Trial No. 26 of 2006 convicting the present appellant under Section 376(1) IPC and thereby sentencing him for 7 years of rigorous imprisonment and a fine of Rs. 5000/ -.
(2.) 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 IPC, Section 228A has been inserted vide Act No. 43 of 1983, in order that the identity of the victim of the offence under Section 376 I.P.C. may not be disclosed. Although, printing and publication in law general is not included in the definition of printing and publication in the above provision for which there are several pronouncements by the Hon'ble Supreme Court, yet, purely for reasons of abundant precaution, the name of the victim has not been mentioned in the present judgment and the victim is only addressed as "prosecutrix". In short, the case of the prosecution (as per the First Information Report) is that on 13.7.2006 at about 7.40 PM in Pithoragarh, the complainant/informant heard a girl crying. The voice was coming from a truck No. URYC -8210 which was a canter make. The complainant on hearing this voice stopped and peeped inside the truck where he saw a girl. Thereafter another persons such as Kedar Joshi @ Kavi Raj (PW 1) also came to the spot. They informed the police at Police Station Kotwali, Pithoragarh and thereafter immediately police personnels were arrived from the said police station, which included a lady constable. The complainant further states that he along with the lady constable picked the girl from the truck and took her outside the truck. The girl was smelling of liquor. She said that the name of her father is Dev @ Moti, who is a resident of Nepal. The report further states that the girl seemed to be very scared and said that she has been raped by the conductor of the truck. This FIR concludes by stating that the girl has now been taken to the hospital for further examination.
(3.) AS per the prosecution and other entries in the general diary, the accused was arrested at 10.30 P.M. the same day from the residence of one Akhtar Ali (PW 3), who is the owner of the truck. The clothes which the accused was wearing were taken away by the police. A recovery memo was pre; pared and the clothes were sent for further forensic examination at the forensic laboratory at Agra, Uttar Pradesh. Similarly, the clothes of the girl were also sent for the forensic examination.;

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