HARI OM Vs. STATE N C T

JUDGEMENT

(1.) This is an appeal against the Judgment dated 25th July, 2007 and the Order on Sentence dated 1st August, 2007, whereby the appellant was convicted under Sections 363/376 IPC and was sentenced to undergo RI for five years and to pay fine of Rs. 5,000/- or to undergo SI for six months in default under Section 363 of IPC. He was further sentenced to undergo RI for 12 years and to pay a fine of Rs.20,000/- or to undergo SI for two years in default, under Section 376(2)(f) of IPC. Out of fine, Rs.15,000/- was directed to be paid to the prosecutrix, as compensation.

(2.) The case of the prosecution, as set out in the FIR lodged by Smt. Bimla, mother of the prosecutrix on 3rd July, 2004, is that on 2nd July, 2004, at about 10.30 pm, when the complainant was present in her house and her husband was taking bath on the hand pump in front of her jhuggi, her daughter, aged about 8 years, came weeping. On being asked as to why she was weeping, she informed her mother that the appellant had taken her to a school on the pretext of giving toffee and had done bad act with her. On checking the prosecutrix, the complainant found blood on her vagina. Since telephone booths had closed at that time, they could not inform the police at night. In the morning, her husband went to the house of the appellant and brought him from there with him. They then brought the prosecutrix as well as the appellant to the Police Station and presented them to the police.

(3.) The prosecutrix came in the witness box as PW-1 and was examined after certain preliminary question had been put to her and the learned Trial Judge was satisfied that the child was able to understand the proceedings and could be examined as a child witness. The prosecutrix stated that when she was playing outside her house, her mother was sleeping and her father was taking meals inside, the appellant came there and took her to the school with tin-shed on the pretext of giving her toffees. He removed his underwear as well as her underwear and had sexual intercourse with her, as a result of which blood came out of her private part. On reaching home, she told her parents about the incident. Thereupon, her parents called the appellant from his house. The police also came to the spot. She was taken to hospital where she was medically examined and her undergarments were seized. She was also produced before the Magistrate where she gave statement, as Ex.PW-1/A. She identified her underwear, which was shown to her in the Court.