- (1.) Om Prakash alias Omi has been convicted by the Sessions Judge, Pithoragarh, vide his judgment dated 7-5-90. He was sentenced to undergo 7 years' R.I. on the charge under Section 376, I.P.C. He was also held guilty on the charge under Section 363, I.P.C. under which he was sentenced to undergo 5 years R.I. Both the sentences were ordered to run concurrently. The prosecution case started on the basis of written F.I.R. lodged by Banarasi Das, P.W. 2 at P.S. Kotwali Pithoragarh, on 23-1-89 at 15.40 P.M. He alleged that he originally hails from Rajasthan but was working at the premises of the contractor as a labourer. His family including his minor sons and minor daughter Km. Subhawati alias Babi, also resides with him. His wife also worked with him. The male children including the daughter Km. Subhawati alias Babi were left at home. Ratan Lal a distant relation of the complainant also resided nearby. His brother-in-law was accused Omi alias Om Prakash. He had been residing with Ratan Lal for some time. He also visited the house of the complainant. On 21-8-89 the accused Om Prakash alias Omi came to the house of the complainant, when the complainant and his wife were away. He by pretext sent the complainant's minor sons towards the cattle and enticed away Km. Subhawati. When the complainant's son Raj Kumar returned, he did not find Km. Subhawati aged about 10, 12 years. He immediately informed the complainant. The complainant started searching for his daughter but he could not succeed. Some people told him that they had seen the accused taking away Km. Subhawati with him at about 10 A.M. on that date. The complainant also contacted Ratan Lal, but they did not give any suitable reply. They asked him not to be worried and said that in case she had gone with the accused, she would return. For nearly a week the complainant's search for his daughter as well as the accused could not bring any result. Then he lodged this report raising an accusing finger towards Ratan Lal and his wife and believing that they were in collusion with the accused.
(2.) It transpires from evidence that the accused had taken Km. Subhawati alias Baby to Rajasthan, where he retained her for 3-4 days. He committed rape on her there and was bringing back Km. Subhawati to the place from where she was allegedly enticed away, then he was arrested by the police on 4-2-89.
(3.) Km. Subhawati was sent for medical examination on 4-2-89, where she was examined by lady Doctor Smt. Usha Upreti, P.W. 4 on 4-2-89. She prepared the following report :- M 11. An old scar 1 cm below from navel about 1/2 cm in length. On Examination - Auxillary hair very scanty just started growing. Breasts - Very small, just started developing nipples small. Abdomen soft - No external mark of injury etc. On Examination of her Private Part Pubic hairs started growing few in numbers and brown in colour. Labia/minora/ developing making apart of labia minora, hymen seen torn. There was old irregular torn, edges smooth, healthy. No bleeding no laceration. 1. Vaginal smear from posterior parts sent for spermatozoa examination-4-2-89 / 9-2-89. Report received from B.D. Pandey Hospital according to Pathologist Smear negative for spermatozoa. Per vaginal Examination-Vagina admits more than one finger loose vaginal canal smooth 2. Girl sent to B.D. Pandey Hospital for X-ray of wrist joints and elbow joint-6-2-89. Perineum healthy, no tear no laceration no bleeding, no mark of injury X-ray report received on 8-2-89. Lateral epicondyle of humerus bone has not fused with capitulums it appears at the age of 10 years of age between 10 to 12 yrs. The age of girl is between 10 to 12 yrs. Opinion : 1. Age of girl according to Radiologist about 10 to 12 yrs. 2. The girl might be used to sexual inter course (because vaginal examination shows vagina more than one finger loose P/V done without any resistance hymen torn but there was no fresh sign of sexual intercourse, no laceration no tear seen, smear negative for spermatozoa.;