STATE Vs. PEAREY ALIAS CHHANGA

JUDGEMENT

(1.) This case has come up before us because of an order dated 6-11-1961 passed by a learned Single Judge of this Court, who ordered issue of notice to the accused Pearey alias Chhanga to show cause why the order of the learned Sessions Judge dated 19-7-1961 giving him the benefit of the U.P. First Offenders' Probation Act be not set aside and a proper sentence under Sec. 376, I.P.C. be not awarded to him.

(2.) The accused was charged under Sec. 376, I.P.C. The prosecution story in short was that on 10th Feb. 1961 at about 10-30 A.M. in Mohalla Kalamandir, Pilibhit, the accused committed rape on Kumari Prema aged about five or six years who was playing outside her house which is close to that of the accused. The accused is alleged to have taken the girl inside his house and committed rape on her. On alarm being raised by the girl, her mother Srimati Sudama proceeded towards the house of the accused. As she entered the house of the accused, she saw him coming out of it, holding his trousers with both the hands. On reaching inside the house, Srimati Sudama found her daughter lying on a cot bleeding profusely from her private parts. She then took Kumari Prema to the police station where a first information report was dictated by the girl herself. The Head Constable recorded the same and took the shalwar of the girl into custody (as it was supposed to be containing marks of blood and spermatozoa.). The same was sent to the Chemical Examiner who after examination passed it on to the Government Serologist. In his report dated 24-3-61 (Ex. Ka-9) the Chemical Examiner detected spermatozoa and blood stains on the shalwar of the girl; while in his report dated 7-4-61 (Ex. Ka-10), the Government Serologist detected stains of human blood on the shalwar of the girl.

(3.) Kumari Prema was examined by Lady Doctor C. D. Tandon on 10-2 1961 at 4-30 P.M. The Doctor found that the hymen of the girl was torn. There was congestion all over the vaginal opening and inner surface of labia minora. The girl was also subjected to an X-ray examination with a view to determine her age. In the opinion of the Doctor, her age was 51/2 to 6 years and the injuries present on her external genitals were caused by a hard object, most probably by the penetration of an erect penis. She was of the opinion that the injuries of the girl were 1/4 to 1/2 day old at the time of the examination.