KAILASH Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) APPELLANT has preferred this appeal against the judgment and order dated 28.09.2007 passed by Additional Sessions Judge/1st FTC, Haldwani, Nainital in sessions trial No. 99 of 2006 whereby the learned trial court convicted the appellant under Section 376(2)(f) of the Indian Penal Code (hereinafter referred to as "IPC") and sentenced him to undergo 15 years rigorous imprisonment and a fine of Rs. 5000/ - and also convicted under Section 506 IPC and sentenced him to pay a fine of Rs. 2000/ -. In default of payment of fine, he has been ordered to further undergo one year simple imprisonment. Out of above fine so deposited in the court, Rs. 4,000/ - has been ordered to be paid to the victim, who is minor, through her parents.

(2.) THIS is an unfortunate case of a five year old girl child who has been a victim of the appellant, who is a very close relative (brother of her uncle's wife) and was living in the neighbourhood. On 06.04.2006, complainant Diwan Ram, father of the victim had gone to attend some religious function (Jagaran) along with his wife. Accused appellant Kailash had taken the victim with him on the pretext of taking her to attend the same function. Complainant and his wife came back home at 11.00 o'clock in the night but they did not find their daughter at home. Around 11.30 p.m. she was found outside the house smeared with blood. She disclosed to her parents that accused appellant Kailash, instead of taking her to Jagaran, had taken her to his house and committed rape upon her and thereafter, he left her outside and threatened her not to disclose anything to anyone, otherwise, she will be finished. During night the complainant did not disclose about the incident to anyone out of fear. On the next morning, he disclosed about the incident to her neighbours, who informed the police on telephone. The victim was taken to the hospital where she was medico -legally examined. Thereafter, the complainant got the application scribed (exhibit Kal) from PW1 Shankar Lal and submitted the same to police station - Kathgodam. On the basis of said complaint, chick FIR (exhibit Ka6) was recorded on 07.04.2006 at 1.30 p.m. The investigation was undertaken by PW7 Mohd. Zaheer Khan. He went to the house of the complainant and took into possession the clothes worn by the victim vide memo exhibit Ka 5 and recorded the statement of victim. He inspected the spot, prepared scaled site plan (exhibit Ka 9). He also took into possession quilt -cover stained with blood from the house of the accused vide memo exhibit Ka 10. He recorded the statement of other witnesses on the same day. The accused was also arrested on the same day in the evening. Accused appellant Kailash disclosed that he could recover the underwear of the victim which he had hidden near the bushes of the house. On his pointing out underwear of the victim was taken into possession vide memo exhibit ka 11. The underwear of the accused was also taken into possession vide memo exhibit ka 12. The accused was medico legally examined on 11.04.2006. The underwear of victim and of the accused, quilt cover stained with blood were sent for chemical examination. Report of Forensic Science Laboratory is exhibit Ka16.

(3.) THE prosecution, in order to prove its case, produced as many as eight witnesses. PW1 Shankar Lal, is scribe of the complaint. PW2 is the victim. PW3 Diwan Ram, PW5 Prema Devi and PW8 Phool Chand, are the father, mother and uncle of the victim respectively. PW4 Dr. Sangeeta Tripathi, medico -legally examined the victim. PW6 Shankar Ram Head Constable had recorded the FIR on the complaint submitted by PW3 Diwan Ram. PW7 Mohd. Zaheer Khan, is the Investigating Officer.