AMRISH ALIAS BALLA Vs. STATE

JUDGEMENT

(1.) This appeal, preferred by the appellant u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 27.02.1990 passed by IInd Additional Sessions Judge, Dehradun in S.T. No. 39 of 1989, State Vs. Amrish, whereby the learned IInd Addl. Sessions Judge has convicted the appellant/accused Amrish under Sec. 307 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to two years' rigorous imprisonment. However, the appellant/accused Amrish was acquitted of the charge punishable u/s 376 IPC.

(2.) I have heard Sri Atul Bahuguna & Sri Niranjan Bhatt, learned counsel for the appellant and Sri M.A. Khan, learned brief holder for the State and perused the entire material available on record.

(3.) In brief, the prosecution case is that complainant Shanti Devi (P.W.2) lodged a FIR stating therein that on 07.06.1988 at about 8:00 A.M. when her daughter Km. Seema, aged about 10 years, went in the garden to cut the grass, then appellant/accused Amrish came there and forcibly committed rape with her daughter. It was also stated that when Km. Seema made an attempt to rescue herself and raised an alarm, then the appellant/accused Amrish beaten her due to which she received injuries on her head and neck. Thereafter, Km. Seema came at her house and from there she was taken to Peshin Hospital for medical treatment. The doctor of Peshin Hospital referred Km. Seema to Doon Hospital. It is further averted that Km. Seema narrated the entire incident to her mother (complainant) at Doon Hospital. With the same averments, the FIR was lodged by P.W.2 Shanti Devi at Reporting Police Chowki Patelnagar, Dehradun on 07.06.1988 at 06:15 P.M., the report is Ex.Ka-1. On the basis of this report, Chik FIR was prepared by Head Moharrir Harbans Katoch, i.e. Ex.Ka-11 and the distance of the police station from the place of occurrence is shown as 31/2 kilometers. The entry was also made in the G.D., the copy of G.D. is Ex.Ka-12. The investigation of the case was entrusted to P.W.6 S.I. R.L. Arya. On the same day i.e. on 7.6.1988 at 10:33 A.M., Km. Seema was medically examined at Doon Hospital by P.W.8 Dr. R.C. Nautiyal and injury report was prepared, i.e. Ex.Ka-9. A supplementary report was also prepared by P.W.8 Dr. R.C. Nautiyal in respect of injured Km. Seema, i.e. Ex.Ka-10. Later on, Km. Seema was again medically examined on 8.6.1988 at 9:00 P.M. by P.W.4 Dr. D.P. Goel, Medical Officer, Government Women's Hospital, Dehradun and medical report was prepared i.e. Ex.Ka-2. An X-ray report in respect of Km. Seema was also prepared by P.W.4 Dr. D.P. Goel, i.e. Ex.Ka-3. Thereafter, on 14.6.1988 at 5:15 P.M., victim Km. Seema was again examined by P.W.5 Dr. Kiran Mathur, Senior Medical Officer, Govt. Women's Hospital, Dehradun and her medical report and supplementary report was also prepared, i.e., Ex.Ka-4 and Ex.Ka-5 respectively. The I.O. during the course of investigation also inspected the place of occurrence and prepared the site plan i.e. Ex.Ka-6. The I.O. also took in his possession the plain clay and the blood stained clay from the place of occurrence and prepared a Fard, i.e. Ex.Ka-7. After completing the investigation, the I.O. submitted the charge sheet against the appellant/accused Amrish @ Balla under Sections 376/307/324 IPC, i.e. Ex.Ka-8.