- (1.) THIS is a criminal appeal against the judgment and order dated 28 -7 -2004 passed by Sri Udairaj, the then Addl. Sessions Judge, Dehradun in S. T. No. 32/2004, whereby the appellant -Babool was convicted and sentenced to undergo R. I. for a period of ten years and to pay fine of Rs. 2000/ - under sec tion 376 I. P. C. , The appellant was also convicted and sentenced to undergo for a period of six months R. I. under sec tion 323 I. P. C. , Both the sentences would run concurrently. In default of payment of fine, the appellant to un dergo for further two months R. I.
(2.) BRIEF facts of the case are that on 16 -10 -2003 a report was lodged by Rajendra Kaushal (maternal uncle of the prosecutrix) in the police station Jogiwala alleging therein that on 15 -10 -2003 at about 5:45 p. m. his niece aged about 8 years was going to fetch the milk from Munna Lal. When she reached near the house of Balam Singh, the appellant met her and took her to the fields, where he throttled her neck and tried to kill her. She became unconscious. When the prosecutrix did not come to her house a search was made. On being made search, it was in formed by Vimal that the prosecutrix was going with the appellant towards the jungle. The prosecutrix came to her house at about 10 p. m. and thereafter she was taken to hospital where the medical was conducted. Meanwhile, a report was lodged under section 307 I. P. C. The prosecutrix was medically ex amined by Dr. Alka Punetha (PW3 ). The following injuries were found on the person of prosecutrix: (i) Abreted contusion 12cm x 7cm front of left side neck. (ii) Abrasion multiple 6cm x 2cm on left side chick. (iii) Abrasion on right side foot cen tral aspe 3cm x 2cm. (iv) No extornating around pubic re gion. According to radiologist, the age of the girl was more than 7 years and less than 12 years at the time of incident. It was also mentioned that no opinion can be given about rape as hymen intact and vaginal smear is negative.
(3.) THEREAFTER , the police investi gated the matter and submitted the chargesheet before the court under sec tions 307, 376 and 511 I. P. C. The appellant was initially charged under sections 307, 376/511 I. P. C. , by the trial court. The appellant denied the charges and claimed the trial. Later on, the evidence of PW1 -prosecutrix was recorded and charge was modified by the trial court. The trial court framed the charge under sec tion 376 IPC instead of section 376/511 IPC.;