( 1 ) INSTANT criminal appeal has been preferred against order of conviction and sentence dated 7th November, 1998 passed by learned 1st Additional Sessions judge, Agra in Session Trial No. 463/1997 state v. Amarnath, whereby the appellant has been convicted under Sections 363 and 376, I. P. C. and has been sentenced to undergo rigorous Imprisonment of three years and 10 years respectively. A fine of rs. 5000/- has also been imposed under section 376. I. P. C. In default of payment of fine, he has to further undergo Rigorous imprisonment of one year. The learned Additional sessions Judge has not directed as to whether both the sentences are to run concurrently, or consecutively.

( 2 ) HEARD Shri J. N. Rai, learned Amicus curiae and learned AGA have gone through the record.

( 3 ) ACCORDING to prosecution, Amir Uddin, resident of 15/134, Bari Hathai, Nai Ki mandi, P. S. Nai Ki Mandi, District Agra lodged First Information Report against appellant-Amarnath on 19th May, 1997 at about 11. 50 a. m. under Sections 363 and 376, I. P. C. contending the fact that he along with his grand-daughter were sleeping in mohalla Bari Hathai, Nai Ki Mandi, District agra and when he got up in the morning, he found his grand-daughter missing from the cot. He accompanied with his son Nisar-father of the girl, Aleemuddin, Nawabuddin started to make search. When they were going beside Railway line near Edhgah Indian Railway Depot, they heard shrieks of the girl and found that the appellant was indulged in sexual intercourse with the girl. The informant and other persons caught hold of the appellant at about 10 a. m. on 19-5-97 and carried him and lodged him at the Police Station, F. I. R. was lodged.

( 4 ) THE Investigating Officer took bloodstained underwear of the girl and underwear and shirt of the appellant and prepared its recovery memo. The girl was medically examined by Dr. Smt. Sudharani Agarwal in woman Hospital, Agra on 19th May, 1997 at 5. 30 p. m. An abrasion of about 1. cm x 1 cm. on the face below the right eye was found.

( 5 ) INTERNAL examination was done under anesthesia in O. T. under supervision of Chief medical Superintendent, Women Hospital, agra. There was a tear of about 1 cm. x 1 mm. on both sides of Labia majora and Labia minora fresh tear was present. There was bleeding on touch. There was perineal tear at 6 o clock position standing up to anus. There was vaginal tear about 4 cm. at 6 o clock position. Lateral vaginal tear was present on right side of about 4 cm. in length and 5 mm. in depth. Bleeding was present on touch. Vaginal smear was taken and sent to Pathologist, District Hospital, Agra. The prosecutrix was referred to surgery department. S. N. Medical College at Hospital, Agra for further management and treatment. The weight of the girl was 12 kg. In the opinion, she was aged about four years and injury was caused by blunt object within 24 hours.

( 6 ) AFTER recording statement of witnesses under Section 161, Cr. P. C. and getting the girl medically examined,completing the investigation, charge-sheet was submitted against the appellant under Sections 363 and 376, I. P. C.

( 7 ) THE accused denied his participation in the crime and alleged that he was not arrested from the spot of alleged occurrence. It was also alleged that he was falsely involved in the crime.

( 8 ) PROSECUTION examined P. W. 1 Amir uddin-informant and grandfather of the girl. P. W. 2 Nisar Uddin-father of the girl, P. W. 3-the girl herself, P. W. 4 Constable Clerk ram Gopal and prepared Chick Report No. 46 dated 20-5-97 at Crime No. 87/97 under Section 363 and 376, i. P. C. The prosecution also examined P. W. 5-Constable ranvir Singh who on the basis of the report of Amir Uddin. prepared Chik Report, P. W. 6 S. I. Satyavir Singh, P. W. 7 Rajpal Singh made investigation in the case who submitted charge-sheet. P. W. 8 Dr. Smt. Sudharani agarwal was also examined who proved medical examination report.

( 9 ) THE accused did not examine any witness in d

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