M.K.Mittal - (1.) THIS appeal has been preferred by Jai Prakash against the judgment and order dated 18.9.2006 passed by Additional Sessions Judge, Court No. 2, Aligarh in S.T. No. 585 of 1998 whereby he found the appellant guilty under Sections 366 and 376, I.P.C. and sentenced him to undergo rigorous imprisonment for five years and seven years respectively. He also imposed fine of Rs. 1,000 and 2,000 respectively under these sections and directed the appellant to undergo additional imprisonment for one month and two months in default of payment of fine. He further directed that both the sentences shall run concurrently. The appellant has been acquitted of the charge under Section 363, I.P.C. The co-accused Malkhan has been acquitted of the charges under these sections.
(2.) IN this case, Shankerpal, resident of village Chirolia, lodged a written report (Ex. Ka-1) on 26.5.1997 at P.S. Quarsi, Aligarh alleging that his minor daughter aged 15 years and niece aged 14 years (daughter of his brother Ramswaroop) had gone to ease themselves in the day time at about 12 in the jungle and alongwith them small children had also gone. After some time the children returned and told that Malkhan son of Om Prakash and Jai Prakash son of Ram Prakash Jatav (the appellant) had kidnapped these two girls and had taken them in a Maruti car towards Aligarh. The accused are also the residents of village Chirolia, P.S. Quarsi. Ramswaroop and Thakurdas, who were returning from Aligarh to the village saw that the two girls and the accused Jai Prakash and Malkhan were sitting in the car. The report was lodged the same day at 3.15 p.m. The case was investigated by Sri Krishan Mehra, P.W. 7. The case was registered in his presence and investigation was entrusted to him. He visited the village Chirolia where the incident had taken place on 31.5.1997. He inspected the spot and prepared the site plan (Ex. Ka-3). Search for accused was made on several dates but they could not be found. On 28.8.1997, he came to know that the two girls were at railway station, Aligarh and on that information he went there and recovered them. He prepared the recovery fard (Ex. Ka-2) and the site plan of the place of recovery (Ex. Ka-5). They were given in the supardagi of their guardians on 30.8.1997 vide supardaginama paper (Ex. Ka-6). He interrogated the two girls on 29.8.1997 and sent them for medical examination. Initially the case was registered under Sections 363 and 366, I.P.C. but on the basis of the statements of the girls he added Section 376, I.P.C. The two girls stated that they were taken by the accused Jai Prakash and Malkhan by putting some handkerchief on their face, as a result of which they became unconscious. First they were taken to Sikandararau and then they were taken to Kanpur. The accused Malkhan did not accompany them as he deboarded the bus for arranging the money. According to both the girls the accused Jai Prakash kept them in a room at Kanpur for three months and committed rape on them. The statements of the two girls under Section 164, Cr. P.C. were also recorded. Girls were given in supurdagi of their guardians again on 1.9.1997 after their statements were recorded under Section 164, Cr. P.C. Supurdaginama is Ex. Ka-7.
(3.) P.W. 8 Dr. Yamna Sharma was posted as Medical Officer in Government Female Hospital, Aligarh on 29.8.1997. She examined prosecutrix P.W. 4 at 1.00 p.m. and found that the hymen was torn and old tear was present. It admitted two fingers easily. Vaginal smear was taken for pathological examination and X-ray was also advised. According to Dr. Sharma she was habitual of intercourse. The medical report is Ex. Ka-8. Dr. Sharma prepared the supplementary report (Ex. Ka-9) on 18.11.1997 and according to this report the epiphysis of right elbow joint, the right knee joint and the distal ends of right ulna and radius bones had fused and according to the doctor the age of the girl was 18 years. She had undergone recent intercourse. The Medical Officer examined prosecutrix P.W. 3 on 29.8.1997 at 1.00 p.m. and found that hymen was torn and old tear was present. It admitted two fingers easily. Vaginal smear was taken for pathological examination and X-ray was also advised. According to Dr. Sharma she was used to sexual intercourse. The medical report is Ex. Ka-10. The supplementary report Ex-Ka-11 was prepared on 18.11.1997 and according to this report the epiphysis of right elbow joint, right knee joint and the distal ends of ulna and radius bones had fused. The age of the girl was about 18 years and had undergone recent intercourse.;