KUNWAR SEN Vs. STATE

JUDGEMENT

(1.) THIS criminal appeal has been preferred against the judgment and order dated 20.08.1981 passed by VIth Additional Sessions Judge, Agra in S.T. No. 662 of 1979 (State Versus Kunwar Sen alias Kunwar Singh) under Section 376 I.P.C., Police Station -Fatehpur Sikari, District -Agra, whereby the trial Court having found the accused/appellant guilty, under Section 376 I.P.C., convicted him and sentenced him thereunder to undergo rigorous imprisonment for five years.

(2.) THE prosecution case as appearing from the first information report Ex.Ka -1 and statement of the prosecutrix (PW -2) is that the prosecutrix was a minor girl of 12 -13 years of age at the time of incident of the case which took place on 20.04.1979 at 2:00 pm in the house of the accused/appellant. THE prosecutrix was showering affection to the children in the house of one Beni who happened to be her brother. THE house of Beni was situated at a short distance from the house of the accused/appellant. THE accused/appellant gave call to the prosecutrix on the pretext that she should help him in removing thorn which stuck in his feet. THE prosecutrix with pious intention believing the accused/appellant by his words hurriedly went to the house of the accused/appellant for relieving him from pain of thorn. At that time, the accused/appellant was all alone in his house. As soon as the prosecutrix reached in the portion of his house having tiled roof (khaprail), he caught hold of her and forcibly took her inside the room where she was laid on the ground. THE prosecutrix offered resistance and expressed her unwillingness and tried to raise alarm but the accused/appellant silenced her and gave her threat to kill if she would raise any alarm further. THEreafter the accused/appellant committed rape upon her after pulling her peticot. He thrusted his male organ into her private part. THE prosecutrix being the child of tender years felt excessive pain but the accused/appellant over -powered her and actually raped her. She felt unbearable pain and cried loudly which attracted her mother, Smt. Ramshri, witnesses Harish Chand, Prabhu, Usha and others who saw accused/appellant tightening the string of his underwear. At the sight of the witnesses, the accused/appellant ran away from the spot. THE witnesses chased him but he could not be apprehended. THEreafter, the mother of the prosecutrix and other witnesses went inside the room and found the prosecutrix in semi -conscious condition. THE blood was oozing out from her private part. She was unable to move herself. So arrangement for the cot was made on which she was taken to her house. THE father of the prosecutrix was at Fatehpur Sikri where he was informed. He immediately rushed to his house and thereafter he took the prosecutrix to Police Station -Fatehpur Sikri and lodged a written first information report of the incident. THE written report is Ex.Ka -1.

(3.) H/C Mohd. Smile seized and sealed the peticot of the prosecutrix and prepared seizure memo thereof which is Ex. -ka -7. The peticot of the prosecutrix is material Ex. -1.