DALCHAND Vs. STATE

JUDGEMENT

(1.) APPELLANT Dalchand has been convicted under Section 366, I. P. C. , and sentenced to undergo rigorous imprisonment for a period of seven years and also to pay a fine of Rs. 100 and in default of payment of fine to undergo rigorous imprisonment for a further period of four months. He has also been convicted under Section 376, I. P. C. and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 100 and in default of payment of fine to undergo rigorous imprisonment for a further period of four months. The sentences are to run concurrently.

(2.) BRIEFLY stated, the prosecution case was this: At about 9 p. m. on 16-3-1964 Kumari Jeet Kaur, aged about five years, was playing outside the house of her father Jogendra Singh. Dalchand, appellant, came to the house and knocked at the door and was informed by Jogendra Singh's wife Smt. Harbans Kaur that Jogendra Singh had gone to the bazar. The appellant then remained sitting near the wall of the house and talked to the girl for five or seven minutes and then took her away to the bazar close-by in his lap. Smt. Harbans Kaur had called her to take food. When there was no response Smt. Harbans Kaur came out of the door and saw the appellant going with the girl in his lap. She called the appellant, who replied that he was taking the girl to the Halwai's shop and would oe back within a few minutes. Smt. Harbans Kaur waited for some time and then went to the house of her neighbour, who was also called Jogendra Singh, and informed him that Dalchand, appellant, had taken away the girl and had not yet brought her back. Jogendra Singh also had seen the appellant taking away the girl. But nobody went to the bazar in search of the girl just then. After about half an hour the girl's father Jogendra Singh returned and was informed by Smt, Harbans Kaur, He then went in search of the girl and came to Amar Singh's shop near Koharagir where Nand Ram and P. W. Balwant Singh were sitting. On hearing about the incident from the father of the girl, Amar Singh, Balwant Singh and Nand Ram went to the appellant's house in search of the girl. The appellant was absent, but the appellant's wife from inside the house informed the party that her husband had brought the girl and had been asked by her to take back the girl to her house. Since they had not met the appellant and the girl on the way, they then went towards the field and the Mandhaiya of the appellant in Mohalla Surkha about two furlongs away. They heard shrieks and cries of a child from a distance of about 15 or 20 paces from the Mandhaiya of the appellant. As they reached close to the Mandhaiya Jogendra Singh flashed his torch and saw the appellant committing rape on the girl. They all then rushed towards the Mandhaiya. Amar Singh and Balwant Singh caught the appellant. The girl was picked up in an unconscious condition by her father. The appellant and the raped girl were then taken to Koharapir, from where Balwant Singh and Amar Singh went away, because it had become late. Ranjit Singh and Ujaiar Singh (P. W, 4) took charge of the appellant and went with the girl's father Jogendra Singh to Koharapir Outpost and took police help and then took the appellant and the raped girl to P. S. Kotwali, where a first information report was lodged at 12-30 a. m. The girl's frock (Ext. I) and the accused's dhoti and shirt (Ext. 3) were taken possession of by the police and sealed and later on sent to the Chemical Examiner. At about 2-30 a. m. the same night the girl was examined by Dr. Padma Agarwal at the Dufferin Hospital, Bareilly and the doctor found a tear from the vaginal orifice up to the anal orifice. She was then admitted for examination under general anaesthesia in the daylight.

(3.) AT about 10 a. m. the next morning the examination under general anaesthesia revealed that--