SHER SINGH S/O HARPHOOL Vs. STATE

JUDGEMENT

(1.) This criminal appeal, preferred under Section 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 11/12-11-1992 passed by Sessions Judge, Dehradun in Sessions Trial No. 81/1990, State v. Sher Singh, whereby the learned Sessions Judge has convicted the appellant/accused under Section 376 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to seven years' rigorous imprisonment.

(2.) I have heard Smt. Pushpa Joshi, learned Counsel for the appellant/accused 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 Mam Chand (P.W.3) lodged an FIR stating therein that on 23.5.1990 son of his elder brother Satish had gone out in his relations and his (Satish's) wife Smt. Kamlesh had gone to collect fuel wood in the forest. At about 2:00 P.M. appellant/accused Sher Singh came at the house of Satish to take water from the tap. Then the appellant/accused dragged the victim Km. Bharti, aged about 10 years, inside the house and there he committed sexual intercourse with her. When the victim raised alarm then her mother Smt. Kamlesh (P.W.4) and neighbourers Smt. Shanti Devi, Jai Chand and other persons of the locality came on the spot and saw that appellant/accused Sher Singh was laying on the victim Km. Bharti and blood was also oozing out from the private parts of the victim. Appellant/accused was caught hold there by the villagers. This incident was informed to the complainant Mam Chand by the villagers at his house. Soon thereafter he also reached on the spot. He further stated that victim Km. Bharti also informed to him about the above-said incident. Thereafter, the victim Km. Bharti along with appellant/accused Sher Singh was brought to the police station. With the same averments, the FIR Ex.Ka-2 was lodged by P.W.3 Mam Chand after getting it scribed from Rao Nasim Ahmed on 23.5.1990 at 9:15 PM at RoP Patel Nagar, P.S. Kotwali, Dehradun. On the basis of the FIR (Ex.Ka-2), Constable Clerk Jitendra Pal prepared the Chik FIR of the case, i.e. Ex.Ka-10. The investigation of this case was entrusted to P.W.5 S.I. Dharam Veer. Victim Km. Bharti was medically been examined on 23.5.1990 at 11:15 PM by P.W.2 Dr. Meenakshi Uniyal and medical report was prepared, which is on record. After the receipt of the x-ray report, Histopathology Report, which is Ex.Ka-1 was also prepared. The I.O. took the underwear of the appellant/accused Sher Singh into possession and prepared Fard, i.e. Ex.Ka-4. The I.O. also took in his possession the blood stained BAAN of the cot and also a piece of blood stained cloth into possession and Fard was also prepared, i.e. Ex.Ka-3. During the course of investigation the I.O. inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-7. The I.O. during investigation recorded the statements of witnesses and after completing the investigation, submitted the charge sheet against the appellant/accused in the court, i.e. Ex.Ka-8.