- (1.) CHALLENGE in this appeal is the judgment and order dated 27.8.2008 passed by Sh. Gurvinder Singh Gill, Additional Sessions Judge, Nawanshahr, vide which the accused appellant has been convicted under Section 376 IPC and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 10,000/ - and in default of payment of fine to further undergo rigorous imprisonment for five months.
(2.) THE law was set in motion by recording the statement of complainant Santosh, who has stated that she is resident of the address mentioned therein and her husband plies a rickshaw. She has a son and younger to him is a daughter aged 6 years (hereinafter to be mentioned as victim, the name concealed on account of judgment of Hon'ble Apex Court). She alongwith her family was staying in Sugar Mill Colony for the last about 6 years in a rented accommodation. On the fateful day i.e. on the festival of Holi, she was cleaning utensils outside her room. Accused Balvir who is known to her came at about 3.30 P.M. and told the complainant that he wanted to take rest and she told him to go inside and sit on the mattress. Victim was also inside and the door was half shut. The complainant continued with her work outside. After some time, she heard a shriek of her daughter. In the meantime, her husband Surinder Pal also came there. Both saw that Balvir was committing sexual intercourse with the victim inside the room. They immediately rushed to attend their daughter and in the meantime Balvir put on his clothes and ran away from the spot. Victim was bleeding and the mattress was also stained with blood. Her husband left her at the spot and went out to look for Balvir, but came back as Balvir could not be found. She alongwith her husband and daughter were proceeding towards police station, when police met them at Chandigarh Chowk and she made the statement, which forms the basis of FIR.
(3.) VICTIM was medico legally examined. Accused after arrest was also medico legally examined. After completion of the investigation, challan was presented against the accused and the case was committed to the Court of Sessions. Learned trial Court framed charge under Section 376 IPC against the accused, to which he pleaded not guilty and claimed trial. The prosecution, in order to bring home guilt of the accused, examined PW -1 Santosh, PW -2 Surinder Pal, PW -3 Baldev Singh Saini, draftsman, PW -4 Budh Ram Photographer, PW -5 Raj Rani, Medicial officer, PW -6 HC Tirath Singh, PW -7 ASI Surinder Kumar, PW -8 Dr. Jatinder Singh and PW -9 ASI Dilbagh Singh. Prosecutrix was also summoned by the trial Court, but after her examination, the Court came to the conclusion that prosecutrix is not a competent witness being child. Consequently, her statement was not recorded.;