JAI SINGH Vs. STATE

JUDGEMENT

(1.) THIS appeal arises out of the judgment and order dated 10th of August, 1970, passed by the Second Additional Sessions Judge, Muzaffarnagar, convicting the appellant of the offence under Section 376 read with Section 511, Indian Penal Code and sentencing him to undergo five years' R. I, and to pay a fine of Rupees 500/ -. In default of payment of fine the appellant has been directed to undergo six months' further R. I.

(2.) THE prosecution case briefly stated was as follows: - During the period the occurrence took place the appellant ran a betel -shop in Mu -halla Malhupura, Muzaffarnagar. Zainud -din (P. W. 7) lived in a house situate close to that shop. On 2nd of September, 1968, at about mid -day Zainuddin sent his niece Kumari Shabnam (P. W. 6), a child aged about 7 years, to purchase betels from the shop of the appellant. When she reached the shop of the appellant, the latter caught hold of her, took her into an adjoining kothri which was lying vacant, bolted it from inside and started making efforts to commit rape on her. Km. Shabnam, however, raised cries, as a result of which there came up Zainuddin (P. W. 7), Khalilur Rahman (P. W. 5) and a couple of other witnesses, They knocked at the door of the kothri and, when the appellant did not open the door, they broke open the same. It is alleged that the witnesses then found Km. Shabnam lying naked on a cot and the appellant lying over her, trying to commit rape. The appellant was arrested on the spot.

(3.) DR . Kumari S. K. Bhatnagar (P. W. 3) medically examined Kumari Shabnam on 2nd September 1968. According to the findings of the doctor, Km. Shabnam was 3' 10' tall and weighed 33 Kgs. Her breasts were not developed. No hair were present in axillary and pubic region. The vulva was found congested with faint reddish colour of the skin. The navieular fossa was found red and congested. Hymen admitted tip of probe and was very tender. The age of the girl in the opinion of the doctor was between 6 and 8 years. On the basis of the appearance of the congestion on the vulva and navieular fossa the doctor stated the duration thereof as six hours. In her statement in the trial court, the doctor said that the injuries could be due to friction caused by male organ.