- (1.) THIS appeal, preferred by the appel lant u/s 374 (2) of The Code of Crimi nal Procedure, 1973 (hereinafter to be referred as Cr. P. C.), is directed against the judgment and order dated 24-09-1990 passed by Sessions Judge, Dehradun in ST. No. 137 of 1989, State Vs. Jagdish @ Jagga, whereby the learned Sessions Judge has convicted the appellant/accused Jagdish @ Jagga under Section 376 of the Indian Penal Code, 1860 (hereinafter to be referred as I. P. C.) and sentenced him to five years' rigorous imprisonment.
(2.) I have heard Sri Ramji Srivastava, learned counsel for the ap pellant and Sri M. A. Khan, learned brief holder for the State and perused the entire material available on record. In brief, the prosecution case is that complainant Luxmi Chand (P. W. 2) lodged a FIR at P. S. Sahaspur, Distt. Dehradun stating therein that on 8-1-1989 at about 4:00 P. M. , when his daughter Km. Mamtesh had gone to ease herself, then appellant/accused Jagdish @ Jagga took Km. Mamtesh forcibly in the sugarcane field of Rana Inder Singh and there he committed rape with her. Thereafter, his daughter Km. Mamtesh came back home while weeping and narrated the incident to him (complainant), her mother Jagwati and brother Shyam Lal. It was further averted that when the complainant was going to lodge the report in the evening of 8-1-1989, then he was stopped by Village Pradhan Prem Chand, Ninha, Antu and Shyam Chand and they also, assured him that they will get the mat ter solved. On the next day i. e. on 9- 1-1989, he came to lodge the report With the same averments, the FIR was lodged by P. W. 2 Luxmi Chand at P. S. Sahaspur, Dehradun on 9-1-1989 at 9:10 A. M. , the FIR is Ex. Ka-1. On the basis of this report, Chik FIR was pre pared by Head Moharrir Ajay Pal Singh Rawat, i. e. Ex. Ka-5. The entry was also made in the G. D. , the copy of G. D. is Ex. Ka-8. The investigation of the case was entrusted to P. W. 4 S. O. S. C. P. Singh Tomar. The victim Km. Mamtesh was medically examined by P. W. 4 Dr. Archana Srivastava on 9-1-1989 at 1:15 P. M. and medical report was prepared, i. e. Ex. Ka-6. Thereafter, the X-ray and Pathology report in respect of victim Km. Mamtesh was also prepared i. e. Ex. Ka-7. The I. O. during the course of investigation also inspected the place of occurrence and prepared the site plan i. e. Ex. Ka-2. The I. O. also took in his possession the blood stained Salwar of victim Krn. Mamtesh and prepared a Fard, i. e. Ex. Ka-3. The said Salwar of victim Km. Mamtesh was also sent for examination in the Forensic Laboratory. The Scientific Officer also gave his report i. e. Ex. Ka-9 and it was opined that spermatozoa was found on the Salwar and blood spot of 'b' blood group on the said Salwar was also found. After completing the investigation, the I. O. submitted the charge sheet against the appellant/accused Jagdish @ Jagga in court u/s 376 IPC, i. e. Ex. Ka-4. Learned Judicial Magistrate (First) Dehradun committed the case to the court of Sessions on 14-12- 1989 after complying with the provisions of Section 207 Cr. P. C.
(3.) ON 08-02-1990, learned Sessions Judge, Dehradun framed the charge against the appellant/accused Jagdish @ Jagga under Section 376 IPC. The charge was read over and explained to the appellant/accused, who pleaded not guilty and claimed to be tried. To prove its case, the prosecu tion has examined P. W. I Km. Mamtesh, the victim, P. W. 2 Laxmi Chand, com plainant and father of victim, P. W. 3 Jagwati, mother of victim, P. W. 4 S. O. S. C. P. Singh Tomar, I. O. of the case and P. W. 5 Dr. Archana Srivastava, medical officer who has medically examined the victim.;