- (1.) B. K. Sharma, J. This is an appeal against the judgment and order dated 3-4-1997 passed by Sri Ravi Narain, the then Illrd Addl. District Judge, Nainital in S. T. No. 152 of 1991-State v. Ratia Dhimar, whereby he convicted the accused-appel lant Ratia Dhimar alias Rati Ram of the offence under Section 366, I. P. C. and sen tenced him to undergo R. I. for a period of five years and to pay a fine of Rs. 1,000 and in default thereof to suffer simple im prisonment for a period of six months, convicted him to offence under Section 368, I. P. C. and sentenced him to undergo R. I. for a period of five years and to pay a fine of Rs. 1,000 and in default of payment of fine, to suffer simple imprisonment fora period (if six months and further convicted him of the offence under Section 376, I. P. C. and sentenced him to undergo R. I. for a period of seven years and to pay a fine of Rs. 1,000 and in default of payment of fine, to suffer simple imprisonment for a period of six months. The substantive sentences were made to run concurrently.
(2.) THE prosecutrix in this case is Km. Pappi, daughter of Jodha Singh, inform ant, resident of village Kaliyawala, Police Station Jaspur, district Nainital. THE prosecution case was that the age of prosecutrix on the date of occurrence was 14 years, that on 26-9-1989 Km. Pappi was called by Smt. Paro, sister of the accused-appellant Ratia Dhimar alias Rati Ram and taken to Suwawala from where the accused- appellant kidnapped her from the lawful guardianship of her father with in tent that she may be forced to marry him against her Will and took her to his own house at Hazira and kept her there and committed rape on her; that from there he took her to village Angadpur and kept her there at the house of Piitam Singh and committed rape upon her, that from An gadpur, he took her to Bijnor and kept her there for 20-25 days. In the meantime, a written F. I. R. about the occurrence was lodged at the police station by her father i. e. , informant Jodha Singh on 28-9-1979 at 6. 20 p. m. against the accused-appellant. On this, a chick report was prepared and a case under Sections 363/366, I. P. C. was registered against him. The investigation of this case was made by Ram Saran Mishra, S. I. P. W. 6. During the course of investigation, he ar rested the accused-appellant from a Rasta on 16-10-1989 at 11. 25 a. m. where he was taking the prosecutrix with him and recovered her also andprepared the neces sary recovery memo. The prosecutrix was sent for medical examination and X-ray for test of age and finally charge- sheet was submitted against the accused-appellant. Km. Pappi was medically examined by the lady doctor Decpti Agarwal, Medi cal Officer Incharge, Combined Hospital, Jaspur, District Nainital on 16-10-1989 at 3. 10 p. m. Her observations were as fol lows: "o/t: No marks of injury seen on body surface. Height: 4 feet 9 inches : Breast well developed. Weight: 44kg. Axillary hair: Brown. Teeth: 8 + 7 Pubic Hair: Dark brown well grown. "examination of private parts: No marks of injury seen on private parts. Hymen replaced by old healed tages, vagina admits 2 fingers easily. Uterus normal size. Vaginal smear taken and sent for pathological examination. There after the prosecutrix was sent to Radiologist, L. D. Bhatt Hospital, Kashipur for X-ray of Rt. elbow and wrist joints and opinion for determination of age and referred to Pathologist, L. D. Bhatt Hospital Kashipur, for examination of vaginal smears slides for sper matozoa. " The X-ray report revealed that Epiphysi-cal ends of upper and lower end of Redius and Ulna are completely fused. In the opinion of lady doctor, the age of the prosecutrix was ascer tained to be more than 18 years. The smear examination revealed no spermatozoa. The lady doctor could not give any definite opinion about rape, however, she opined that the girl is used to sexual intercourse.
(3.) HEARD the learned Counsel for the parties and gone through the record. At the trial, the prosecution ex amined Km. Pappi prosecutrix as P. W. 1, Santosh Singh, P. W. 2 real brother of Jodha Singh informant and Jogendra Singh, P. W. 3. Rest of the evidence was formal in na ture. No witness was examined in defence.;