KALWA Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) This is a jail appeal of the appellant preferred against the judgment and order dated 14.2.2013, passed by the Sessions Judge, Udham Singh Nagar in Sessions Trial No. 318/2011, who has convicted the appellant under Sections 323, 376 and 506 IPC and sentenced him to undergo rigorous imprisonment for ten years and a fine of rupees ten thousand for the offence under Section 376 IPC, rigorous imprisonment for two years for the offence under Section 506 IPC and rigorous imprisonment for one year for the offence under Section 323 IPC. In default of payment of fine, convict appellant has been directed to undergo simple imprisonment for one year. All the sentences have been directed to run concurrently.

(2.) The incident is of 30.09.2011 at 3 PM in the afternoon, when, as per the case of the prosecution, victim/prosecutrix, who was allegedly 14 years of age, was alone in her house in village Kharakpur Devipura. The appellant, who also resides in the same village and does part time electrical work, entered the house of the prosecutrix on the pretext that he has been asked by her father to do electrical repairs in her house. As the prosecutrix was alone in the house, the accused caught hold of her and raped her. Accused/appellant also threatened the prosecutrix of dire consequences in case she reports the matter to anyone. Father of the prosecutrix is a rickshaw puller who as usual on the date of incident, had gone out for the work in the nearby town of "Kashipur", and the mother of the prosecutrix was also away collecting fodder for their cattle.

(3.) The FIR though is not prompt as the incident was reported after three days on 010.2011 at 04:15 PM at Police Station Kashipur. The appellant/accused was promptly arrested on the next day on 04.10.2011. The prosecutrix was medically examined at 9 PM on 010.2011 by a lady doctor PW5 Dr. Archna Chauhan at L.D. Bhatt Government Hospital, Kashipur. In the medical examination, the hymen of the prosecutrix was found torn and healed. There was no bleeding or any mark of any kind of bleeding nor were there any external or internal injury on the body of the prosecutrix. X-ray was prescribed in order to determine the age of the prosecutrix. X-ray was conducted and as per the medical opinion, her age is "around 16 years". Prosecution, however, throughout maintained that the girl was 14 years of age, as that is what has been reported in the First Information Report.