Decided on August 20,2013

Num Kumar Appellant


Sudhanshu Dhulia, J. - (1.) HEARD Mr. D.C. Joshi, Advocate for the appellant and Mr. Suhail Siddiqui, A.G.A. for the State.
(2.) THIS criminal appeal challenges the judgment and order dated 27.01.2007 passed by the Addl. Sessions Judge, Roorkee, District Haridwar in S.T. No. 288/2003 whereby the appellant -Num Kumar @ Rajkumar was convicted under Section 376 I.P.C. and sentenced to undergo imprisonment for seven years and a fine of Rs. 5,000/ -. In default of payment of fine of Rs. 5,000/ -, the appellant has to further undergo imprisonment for one year. However, the appellant was acquitted for the offence punishable under Section 506 I.P.C. 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 I.P.C., Section 228A has been inserted vide Act No. 43 of 1983, which bars the disclosure of the identity of the prosecutrix by publication and in fact it makes it an offence. Although, printing and publication in a law journal may not be included in the definition of "printing and publication", yet purely for reasons of abundant precaution, the name of the alleged victim has not been mentioned in the present judgment and the victim is only addressed here as the "prosecutrix".
(3.) THE brief facts of the prosecution story are that an F.I.R. was lodged by the father of the prosecutrix i.e. Ram Singh at Police Station Bhagwanpur, Haridwar on 16.05.2003 at 12:45 PM alleging that in the intervening night of 15/16th May, 2003 his daughter aged about 15 years was sleeping in her house and when in the midnight his daughter, who was suffering from loose -motions, went out of the house to relieve herself when the accused Num Kumar @ Rajkumar caught her and dragged her forcibly to his house, which was adjoining to the house of complainant. There the prosecutrix was raped by the accused in his house. The parents of the prosecutrix searched for their daughter throughout the night, but all in vain. In the morning of 16.05.2003, the prosecutrix came to her house and informed her parents that she was raped by accused in his house. Thereafter, the prosecutrix was medically examined by Dr. (Ms.) B.L. Narang P.W. 3 at J.N.S.M. Government Combined Hospital, Roorkee on 16.05.2003 at 1:45 P.M. Medical report states that axillary hairs are thin and pubic hair are also thick. Both breasts are developed. The medical report further states that there was no sign of injury on the body of the prosecutrix. The hymen is old torn admits only one finger easily and that she is not habitual to sexual intercourse. The prosecutrix was sent for bone ossification test in order to determine her age. The radiologist report indicates that the age of girl was less than 17 years and more than 16 years. The radiologist report further states that no definite opinion can be given about rape. The pathological report states that no spermatozoa was seen dead or alive.;

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