MRITYUNJAY KUMAR Vs. STATE OF SIKKIM

JUDGEMENT

(1.) By this appeal, the appellant seeks to assail the judgment of the learned District and Sessions Judge, Special Division-I, Sikkim at Gangtok, in S. T. Case No. 5 of 2007, rendered on 6-8-2008, by which he was convicted under Sections 354/ 342,I. P. C. and sentenced to undergo simple imprisonment of 1 year and to pay fine of Rs. 1000.00 for offence under Section 354, I. P. C, and for the offence under Section 342, I. P. C. to undergo rigorous imprisonment of 2 years and to pay a fine of Rs. 2000.00. Both the sentences were made to run concurrently.

(2.) History of the prosecution case is that, on 31-8-2006, at around 16.00 hours, Ranipool Police Station received a written complaint from one Brij Mohan Bihani of Shanti Complex, Ranipool (PW 1), alleging that on that day at around 2.30 p.m. his daughter Komal Bihani aged about 9 years (the victim/PW2), had gone to the medical shop of Mritunjay Kumar the accused/appellant near Shanti Complex to purchase medicine. On reaching the medicine shop, the accused Mritunjay Kumar took the victim girl inside a room for check-up where he molested her and raped her threatening the girl with dire consequences if she disclosed the matter to any one. On the basis of that complaint, Ranipool P. S. Case No. 19(08)06 dated 31-8-2006 under Sections 342/376/ 511/506,I. P. C. was registered and investigation taken up against the accused person. On completion of the investigation, charge sheet was filed against the accused to trial under S. 354, I. P. C. on the following facts being revealed :-

(3.) It may be relevant to note that as a part of the investigation, the I. O. had visited the place of occurrence, prepared a rough sketch thereof and, statement of the accused/appellant was recorded under S. 164, Cr. P. C. by the Judicial Magistrate, East and North. Apart from this, available witnesses were examined and their statements recorded under S. 161, Cr. P. C. Both the accused/appellant and the victim were forwarded for medical examination and their seized garments sent to the CFSL Cell, Kolkata. for examination, in order to confirm the medical report which stated that there was no clinical evidence to indicate sexual intercourse within 24 hours and that there was no clinical evidence to indicate that the accused person is not capable of performing sexual intercourse.