N.N.Sharma - (1.) THIS appeal is directed against order dated 12-9-1978 by Sri G. L. Tandon, learned IVth Additional Sessions Judge, Moradabad in S. T. No. 255 of 1978 by which appellant was acquitted of the charge of rape but was convicted under Section 363 of Indian Penal Code and sentenced to four years rigorous imprisonment.
(2.) THIS appeal was listed for hearing today. List has been revised. No Advocate on behalf of appellant came forward to press this appeal. Sri Viresh Misra learned Advocate for appellant: arrived subsequently and argued the appeal at length. I have perused the entire record and heard learned Advocates for the parties. Km. Baby daughter of PW 4 Shahabuddin resident of Mohalla Asalatpur within the limits of Police Station Kotwali, Moradabad is alleged to have been kidnapped by appellant who resides in the same locality on 13-4-1978 at about 7.30 P. M. and rabished her; while carrying the child in his lap, he was seen by Mohammad Iqram (PW 1) and was being chased by some persons; when hotly chased, he threw the child on the: road in presence of Mohammad Iqram (PW 1), Aqeel (PW 2) and Mohammad Naushey (PW 3); the child was picked up and was found bleeding from her vagina; appellant decamped; Mohammad Iqram (PW 1) dictated FIR Eat. ka-1 to Constable Jagdamba Prasad (PW 6) in the same night at 8.30 P. M. at Police Station Kotwali which is at a distance of about five furlongs from the place of occurrence; appellant was nominated in the report; blood stained garment (Frock) and ribbon were also taken in possession and subsequently these were sent to the Chemical Examiner who detected blood on it vide report Ext. Ka-12.
(3.) KM. Baby was examined on 13-4-1978 at 8.30 P. M. by lady doctor who detected blood on both thighs and legs of the child. Smear was taken for examination. Injuries were found fresh on private parts of the child but the doctor was not definite about the rape vide injury report Ext. Ka-2. Genuineness of this report and injury report of appellant Ext. Ka-3 was admitted by the learned Advocate for appellant at the stage of trial. Babu appellant had following injuries on his person on 13-4-78 at 9.30 P. M. 1. Abrasion 3/4 cm x 3/4 cm on the inner part of right knee joint from where fresh blood was oozing. 2. Abrasion 1.5 cm x 1 cm on the front of right knee and fresh blood was oozing from there. There were blood stains on lower half of front of right leg.;