SUNIL KUMAR GARG - (1.) The abovenamed accused-appellant has preferred this appeal against the judgment and order dated 26-11-1999 passed by the learned Addl. Sessions Judge. Rajsamand in Sessions Case No. 53/98 by which he convicted the accused-appellant for the offence under Section 376, I.P.C. and sentenced him to undergo ten years' rigorous imprisonment and to pay fine of Rs. 2000/-, in default of payment of fine, to further undergo six months' SI.
(2.) The facts giving rise to this appeal, in short, are as follows :- On 23-4-1998 at about 2.20 p.m. PW-1 Kamla, aged about 8 years (hereinafter referred to as the child prosecutrix) along with her mother PW-3 Radha lodged an oral report Ex. P/1 before PW-13 Shyam Sunder, SHO, Police Station Railmagra District Rajsamand stating inter alia that on 23-4-1998 at about 10.00 a.m. child prosecutrix PW-1 Kamla went as usual to jungle for the purpose of grazing goats and she was grazing goats in the Bada of Noor Mohd. and she was sitting beneath the tree of Khejri. It was further stated in the report that after about 1/2-1 hour, accused-appellant came there for the purpose of washing his hands and mouth and at that time, he was wearing lungi and he was having a pot of water in his hands and after crossing her, he came back again and asked her to do something, upon this she refused. It was further stated in the report that thereafter, accused-appellant caught hold of her hands and took her towards velly and after lifting her gagra, he fell down on her and put his penis into her vagina, upon this, she made hue and cry, but he pressed her mouth and, thereafter, blood came out from her vagina. Thereafter, she came to her house and narrated the whole story to her mother PW-3 Radha and brother. On this report, regular FIR Ex. P/2 was chalked out and investigation was started. During investigation, site plan Ex. P/3 was prepared; child prosecutrix PW-1 Kamla was got medically examined by PW-10, Dr. J. L. Shishodia and her medical examination report is Ex. P/5 and medical examination report by which her age was determined is Ex. P/6, where doctor has assessed her age between 8 to 10 years; underwear and lungi of the accused-appellant were seized through Ex.P/7; gagra of the child prosecutrix was seized through Ex. P/8; and the accused-appellant was arrested through Ex. P/11 on 26-4-1998. After usual investigation, police submitted challan against the accused-appellant in the Court of Magistrate, from where the case was committed to the Court of Session. On 26-10-1998, the learned Addl. Sessions Judge, Rajsamand framed charge for the offence under Section 376, I.P.C. against the accused-appellant. The charge was read over and explained to the accused-appellant, who pleaded not guilty and claimed trial. During trial, the prosecution in support of its case examined as many as 13 witnesses and got exhibited some documents. Thereafter, statement of the accused-appellant under Section 313, Cr.P.C. was recorded. In defence, two witnesses were produced by the accused-appellant, where plea of abili was taken. After conclusion of trial, the learned Addl. Sessions Judge, Rajsamand through his judgment and order dated 26-11-1999 convicted and sentenced the accused-appellant in the manner as indicated above holding inter alia :- 1. That statement of the child prosecutrix PW-1, Kamla gets corroboration from the statements of her mother PW-3 Radha and PW-5 Shankarlal and furthermore, from medical evidence, which is found in the statement of PW-10 Dr. J. L. Shishodia. 2. That prosecution has been able to prove its case beyond all reasonable doubts against the accused-appellant for the offence under Section 376, IPC. Aggrieved from the said judgment and order dated 26-11-1999 passed by the learned Addl. Sessions Judge, Rajsamand, the accused-appellant has preferred this appeal.
(3.) In this appeal, the following submissions have been made by the learned counsel for the accused-appellant :- 1. That the learned trial Judge has erred in arriving at the findings of guilt against the accused-appellant, as doctor has stated that there was no injury to any of the organs and no specific opinion has been given regarding the rape and in absence of that opinion, the findings of guilt recorded against the accused-appellant by the learned trial Judge for the offence under Section 376, IPC are erroneous one. 2. That statement of the child prosecutrix PW-1 Kamla is not worth reliable, as it suffers from so many contradictions and omissions and thus, no reliance should have been placed on the statement of child prosecutrix PW-1 Kamla. 3. That there is defence evidence on the point that on the date of occurrence, accused-appellant was not in the village and this defence evidence must have been considered by the learned trial Judge.;