- (1.) THIS appeal has been preferred against the impugned judgment and order dated 19.8.1981 in S.T. No. 165 of 1978 by which the appellants stood convicted of the charge punishable under Section 376 I.P.C. sentencing them to undergo rigorous imprisonment of three years each by the then Additional Sessions Judge, Meerut. The name of the victim is not being indicated to prevent her social victimization in view of the Apex Court decision in Premia @ Prem Prakash Vs. State of Rajasthan, 2008 4 RCR(Cri) 539.
(2.) THE facts and circumstances giving rise to this appeal are that a first information report was lodged on 22.1.1977 at 3.15 P.M. in respect of the incident occurred on 21.1.1977 at 4 P.M. by the complainant Ilam. It was narrated by him that he belongs to Jogi caste and his occupation is doing labour and he is a very poor person. On 21.1.1977 at about 4 P.M. his daughter aged about 13/14 years along with Kusum aged about 9 years went to pluck potherb near the forest and when they were returning back the appellants Satyaveer and Babu who are maternal uncle and nephew were standing on the way and taken forcibly his daughter inside the field of sugar cane of Ilima Brahimin. The younger girl Kusum seeing that rushed to the house and narrated the entire incident to the parents of the victim, at this all family members and other persons of the vicinity rushed at the place of occurrence one Sukhbir and Hosiyar were also arrived there. Kusum was also along with them and with the help of Kusum when they reached at the place of occurrence they saw that his daughter was in a half naked condition having blood all over, was sitting and crying. All of them had taken her to the house and then tried to lodge the first information report but the accused persons did not allow them to go to the police station and threatened that if any report is lodged against them, they will be done to death. In the morning the complainant managed to reach at the police station and requested to get his daughter be medically examined and a first information report be lodged against the accused persons as it was told by his daughter that they had committed rape upon her. The first information report was lodged under Section 376 I.P.C. against the appellants, which was registered at police station Delhi Gate, Meerut. After lodging of the first information report the victim was medically examined at 4 P.M., which contained the following features; "There is a small and depressed old scar on left cheek no any other relevant marks. Examination: The girl is of average build Wt 4 -1/2 ft. app. Height - 70 Lbs. Breast developed, pubic and axillary hairs are present. No external injury. Teeth 14/14. On P/V examination hymen torn at 12 and 7 O'clock position, the tears are fresh the edges of tears are red inflamed rawness in the base + no bleeding P/V no any other injury on private parts vaginal orifice admitted 2 fingers but examination caused pain to the patient. Vaginal smear taken for detection of sperms if any. Advised X -ray wrist, elbow and knee joint. Age report will follow. Opinion: According to above finding the girl has been raped." She was advised X -ray to determine her age. The x -ray report dated 25.1.1977 is as follows; M.I. Depressed old scar on left check. X -ray elbow, wrist and knee joint. Epiphysis not united.
(3.) CONCLUSION according to the X -ray report No. 319 dated 25.1.1977 her age is between 13 to 14 years. The clothes belonging to the victim (Exhibits Ka. 1 and 2) were handed over by the complainant to the Investigating Officer, which were having blood stained and semen has been exhibited as Ka. 8. The statement of the complainant and the victim were recorded, site plan (Exhibit Ka. 7) was prepared and after completing investigation the charge sheet (Exhibit Ka. 9) was submitted on 25.3.1977 against the appellants. The case was committed to the court of session whereupon the First Additional Sessions Judge, Meerut framed charge under Section 376 I.P.C. on 24.5.1979, the accused/appellants pleaded not guilty and claimed to be tried. In order to bring home the charges leveled against the appellants the prosecution examined eight witnesses. Thereafter the statement of the accused/appellants were then recorded under Section 313 Cr.P.C. They had denied the allegations leveled against them and pleaded false implication due to enmity. No evidence was led in defense. The prosecution examined the complainant father of the victim as P. W. 1. The victim was examined as P. W. 2 while Kusum who was an eye witness was examined as P. W. 3. So far the formal witnesses are concerned, the prosecution has examined Dr. Zainab Bano Rizvi who examined the victim was produced as prosecution witness as P.W. 4, Khairati Lal, Head Moharrir was examined as P .W.5 who had prepared the chick report (Exhibit Ka.4), which was entered into general diary (Exhibit Ka.5). P.W. 6 Ram Kishore Tyagi who was posted as Head Moharrir made entry in the general diary and registered the case against the accused persons marked as Exhibit Ka. 6. Virendra Singh Vishnoi, Sub Inspector posted at the outpost Kishanpur Baral, police station Chaprauli was examined as P.W. 7 who started the investigation and after recording the statement prepared site plan and submitted the charge sheet (Exhibit Ka.9). Dr. Chandra Prakash a technician who proved the X -ray report of the victim was examined as P. W. 8;