NISAR Vs. STATE

JUDGEMENT

(1.) Challenge in this appeal by the sole appellant Nisar is to the judgement of his conviction and order of sentence dated 14.4.82 recorded by 3rd Additional Sessions Judge, Bijnor in S.T.No. 275 of 80, State versus Nisar, by which appellant herein has been convicted u/s 366 I.P.C. P.S. Dhampur, District Bijnor and has been sentenced to 3 years R.I. and to pay a fine of Rs.500/= and in default in payment of fine to under go 3 months further R.I.

(2.) According to the prosecution case, as was dictated at the police station by the victim/ PW6, which was recorded as FIR Ext. Ka-7, victim was a resident of village Hathai, P.S. Dhampur, District Bijnor. Her father wanted to contract her marriage with Waigan @ Sharif resident of village Dhampur, who was a ruffian and, therefore, the victim never wanted to contract marriage with him. She eloped and concealed herself in the house of Munni where, it is alleged, that the appellant came there and took her to Dhampur. At Dhampur, appellant was joined by one another person Kalwa. According to the FIR, it was Kalwa, who outraged the modesty of the victim in a sugarcane field. All the three of them then came to Nahdaur and from there, they boarded a bus to village Chandpur and from there, they came to village Patiyapada at the house of a relative of Kalwa where the preparation was made for contracting the marriage of the victim with Nisar. However the marriage could not be contracted and at 8 P.M., two police constables arrived and arrested both, the informant victim as well as appellant Nisar. Kalwa, however, managed his escape from the spot. FIR was lodged and crime was investigated and ultimately charge sheet was submitted.

(3.) In the trial, prosecution examined doctor as PW1. Testimony of the doctor unerringly revealed that victim/PW6 was major, according to Mohammadan law as according to her x-ray plate, Ext. Ka-2, and supplementary medical examination report, Ext Ka-3, she could be 16 years of age. Her primary medical examination report, Ext. Ka-1 indicate that she was habitual to sexual inter course but in the present incident "no sexual inter course ascertained" . Doctor has further stated that secondary sexual characters and body had developed and therefore he has not thought it appropriate to mention it.