MANMOHAN SARIN, J.

( 1 ) APPELLANT-RAKESH @ Kake by this appeal assails the impugned judgment dated 20th January, 2004 and order of sentence dated 29th January, 2004 The appellant was convicted for the offences under section 376 (2) (g) IPC, 452 IPC and 506 (2) IPC. Appellant was sentenced to life imprisonment and a fine of rs. 1000/-, in default of payment of fine, SI for three months for the offence under section 376 (2) (g) IPC. For the offence under section 452 IPC, appellant was sentenced to RI for three years and a fine of Rs. 500/- and in default, SI for one month. For the offence under section 506 (2) IPC, appellant was sentenced to three years RI and a fine of Rs. 500/- and in default of payment of fine, SI for one month. The above sentences are to run concurrently.

( 2 ) THE prosecution case, in brief, before the trial court was that the appellant carrying a screw driver along with his companion one Sunil, trespassed into the house of the prosecutrix-`r , at about 10 AM on 15th January, 1999. At that time, both her parents were away. Appellant using foul language told r an unmarried minor girl, that he wanted to have sex with her and upon her refusal, dragged her on the floor. He threatened her with the screw driver and broke open the string of her salwar and forcibly had sexual intercourse with her. Thereafter, his companion also raped her. Appellant and his companion left extending threats that if she disclosed the incident to any one, they would kill her family members. The incident happened in the presence of `r s younger sister aged 10 years old, who had been slapped and made to sit in a corner. The appellant s companion Sunil had sent out the younger brother of the prosecutrix-`r to purchase gutka for him. Prosecutrix-`r states that she tried to raise alarm but nobody heard her.

( 3 ) THE residence of `r is said to be one room in the corner premises, beyond which there were empty plots, though located in a populated area. Prosecutrix-`r being shattered by the sexual assault, around 4 p. m had consumed nepthalene balls as she wanted to end her life, but she felt sick and vomited. She claims that the neighbours knew about the incident. Prosecutrix-`r narrated the incident to her mother when she returned at night from work. Report was lodged which was registered as DD No. 73 on 15th January, 1999. Prosecutrix s-`r statement was recorded on the same night being Exhibit 2/a. Medical check up of the Prosecutrix-`r was done at the Deen Dayal Hospital where she was accompanied by her mother. X-ray was also done later. Accused persons were arrested on her pointing out.

( 4 ) PROSECUTION to prove the case had examined Prosecutrix-`r and her younger sister PW-3. Ossification test was also carried out which confirmed the age of Prosecutrix-`r as more than 15 years but less than 17 years. Prosecutrix-R s mother was also examined. She deposed that she learnt of the rape of her daughter on her returning from work at about 10. 30 p. m. She also deposed that appellant s mother and their relations attempted to offer her money so as not to proceed with the complaint. She declined telling them that it was also their obligation to protect her daughter.

( 5 ) THE M. L. C carried an endorsement ?alleged history of rape by two identified youth. ? They were not named in the MLC. PW-8, Dr. Poonam Lal had carried out the gynaeocological examination and proved her report. Medical examination of Prosecutrix-`r revealed an old hymen tear and vagina admitting two fingers tightly. No external injuries on the genital parts were seen. PW-8 opined that old tear in the hymen could be on account of many reasons like heavy exercise. It may be due to earlier sexual intercourse. She concluded that it was difficult to say from clinical examination whether she had been subjected to intercourse or not now. The medical examination of the appellant as also the co-accused had confirmed that they were both capable of sexual intercourse.

( 6 ) LE

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