- (1.) APPELLANT Budhu Singh alias Anil Kumar was tried and convicted for an offence u/s 376 IPC, for out raging modesty of an adolescent damsel, X, aged about ten years, on 31.5.1980 at 5 p.m., inside his house situate in Jaswant Nagar, District Etawah and was sentenced to 5 years RI, by IVth Additional Session's Judge, Etawah, in S.T. No. 299 of 1980, State versus Budhu Singh, relating to PS Jaswant Nagar, and hence this appeal by the convicted accused.
(2.) ACCORDING to prosecution case, mother of the victim had already expired and she was residing with her father and grandmother. Her father was a barber and on the date of the incident had gone to village Khilawali, P.S. Jaitpur in connection with his vocation and, hence was not present at his residence. Oral FIR, Ext. Ka 1, regarding the incident was lodged by the victim herself at P.S. Jaswant Nagar at 7.55 p.m. same day as crime number 175 of 80, u/s 376 IPC, covering a distance of eight miles. Constable Rama Shankar Pandey, scribed and registered orally dictated FIR by preparing chick FIR, Ext. Ka-1, and corresponding GD entry Ext. Ka-3. He also seized victim's kirtle(petticoat), material Ext.1, and prepared its recovery memo Ext. Ka-2. The apparel was sealed regarding which recovery memo Ext. Ka-2 was prepared. SI Lallan Prasad Shukla, of P.S. Jaswant Nagar, PW3, in whose presence the crime was registered, commenced investigation, recorded statements of informant victim, Head Moharrir Rama Shankar Pandey, Smt. Ram Kali and witnesses of Ext. ka2.He dispatched informant victim to the hospital for her medical examination. PW4 constable Sukhvir Singh of P.S. Jaswant Nagar had brought the victim to the doctor at 9.10 p.m. same day and Dr. S. Katiyar, Medical Officer, PP Centre, Etawah, had medically examined her on 1.6.1980 at 10.30 a.m. vide Ext. Ka-6. The doctor had noted that she was 4.5 feet in height, having 75 lbs. weight. Her secondary characters- her breasts were not developed, axillary and pubic hair were absent, and she had pain in her abdomen and was feeling difficulty in stepping. Her hymen was torn with fresh tear at 6 O' clock position. On touch blood oozed out from it. With difficulty her private part could admit only one finger. Vaginal smear was taken by the doctor and was sent for histopathological examination. For determining her age, she was advised for x-ray of wrist and elbow joints. The doctor had opined that the victim was subjected to forceful carnal copulation within 24 hours. After victim's x-ray and pathological reports,PW5, had given a supplementary report, Ext.Ka-7 on 30.6.1980.Pathologist's report negated the presence of spermatozoa. X-ray report revealed non fusion of epiphysis of radius and ulna bones in the wrist and elbow joints. Both medial and lateral epicondyle and lower end of humorous were not fused. Looking to the x-ray plate and report, doctor PW5 adjudged victim to be ten years of age. During investigation, I.O. PW3, had interrogated occurrence witnesses Prem Bihari, Brajesh Kumar and Jagdish, had sketched site plan, Ext. Ka4, on 8.6.1980 and after accused appellant surrendered in court on 30.6.1980, interrogated him and concluding his investigation charge sheeted the appellant vide Ext. Ka-5.
(3.) APPELLANT accused was summoned by the Magistrate and his case was committed to the Session's Court for trial, where it was registered as S.T. No. 299 of 1980, State vs. Buddhu Singh alias Anil Kumar. Trial Judge charged the appellant u/s 376 IPC on 18.11.1980 and since accused appellant pleaded not guilty and claimed to be tried that his trial commenced. To establish it's case and bring home appellant's guilt, prosecution, in the Session's trial, examined five witnesses, out of whom informant victim PW1 and Brijesh Kumar PW2 were the fact witnesses. I.O. Lallan Prasad Shukla, PW3, Constable Sukhvir Singh PW4 and Dr. S. Katiyar PW5 were formal witnesses. In his statement u/s 313 Cr.P.C., appellant denied the prosecution evidences incriminating him in the crime and pleaded his false implication because of party rivalry. He further narrated that his brother Rajjan was also prosecuted for the offence of molestation u/s 354 IPC, but was acquitted. To pop up his defence, appellant examined Bester Baboo as DW1. IVth Addl. Sessions Judge, Etawah, after vetting evidences led in the trial and after critically appreciating facts and circumstances involved in the case concluded that the guilt of the appellant was established beyond any doubt and, therefore, convicted him for the framed charge and sentenced him to five years RI, which conviction and sentence is now under challenge in the instant appeal.;