GAJENDRA CHAND Vs. STATE OF U.P.

JUDGEMENT

(1.) THIS criminal appeal has been preferred under section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.) against the judgment and order dated 11.9.1987 passed by Sessions Judge, Pithoragarh in Sessions Trial No. 21 of 1987, State of U.P. v. Gajendra Chand, whereby the learned Sessions Judge has convicted the present appellant under sec­tion 376 of The Indian Penal Code, 1860 (hereinafter referred to as IPC) and awarded rigorous imprisonment for a pe­riod of three years and a fine of Rs. 1,000/ in default of payment of fine further simple imprisonment for six months. It was also directed that realization of amount of the fine shall be given to prosecutrix Smt. Mo-hini Devi as compensation.

(2.) IN brief, the prosecution case is that on 3.10.1985 in the night of about 10-11 P.M. daughter of the complainant Manju had gone in her neighbouring house alongwith her younger brother and her husband had gone to Chharandeo, then present accused-appellant Gajendra Chand had entered the room and had locked the door from inside and forcibly had commit­ted rape with the complainant Smt. Mohini Devi. After hearing cries of the complain­ant (Smt. Mohini Devi), Smt. Hemanti Devi, Manju and Saroj had come at the place of occurrence. In between the present appellant had run away from the spot. With the same averments, the FIR, i.e. Ex.Ka-1, was lodged by Smt. Mohini Devi in the Police Station Kotwali Pithoragarh on 4.10.1985 at 11.00 A.M. On the basis of the written FIR, a chick report was pre­pared by the Medical Officer is Ex.Ka-2 and the supplementary report prepared by the Medical Officer on 5.10.1985 i.e. Ex.Ka-3. The present appellant was arrested by the police on 4.10.1985 at about 17.30 hours and the entry was made in the G.D. at 18.05 hours on 4.10.1985, the copy of G.D. is Ex.Ka-6. The present appellant was sent for medical examination on the same date of about 20.25 hours. The entry was made in the G.D., the copy of G.D. is Ex.Ka.7. Petti­coat of Smt. Mohini Devi was taken in pos­session by the Investigating Officer on 4.10.1985 and fard was prepared i.e. Ex.Ka-8 and underwear of the appellant was also taken in possession and prepared fard i.e. Ex.Ka-9. The Investigation Officer has also prepared the site plan of the place of occurrence i.e. Ex.Ka- 10. During the course of investigation the Investigating Officer re­corded the statement of the witnesses and after completing the investigation, he sub­mitted the charge-sheet against the appel­lant on 28.1.1986 under section 376 IPC in the Court of Chief Judicial Magistrate, Pithoragarh i.e. Ex.Ka-11.

(3.) LEARNED Sessions Judge framed charges against the present accused-appellant on 3.7.1987 under section 376 IPC. The charges were explained to the appellant who pleaded not guilty and claimed to be tried. To prove its case the prosecution examined P.W.I Smt. Mohini Devi (victim), P.W.2 Dr. Mamta Chand, who medically examined Smt. Mohini Devi, P.W.3 Manju, who is the daughter of the prosecutrix and P.W.4 Sri Ram Datt, Head Moharir. The statement of the pre­sent appellant had been recorded under section 313 Cr.P.C., who had denied the allegations made against him and stated that he and his-brother had collected grit (Bajari) and Harish, the son of Smt. Mohini Devi sold that grit {Bajari). On being ques­tioned as to why he had sold it, the prose­cutrix came in rescue and promised to pay Rs. 40/- by tomorrow as exchange of the grit (Bajari). For that the conversation was taken place between the two and due to this enmity he has falsely been implicated.