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1997 Supreme(All) 24
IN THE HIGH COURT OF ALLAHABAD
G. S. N. TRIPATHI
NANKOO SHARMA - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
Criminal Appeal 1798 Of 1996
Decided On : 01/09/1997
S.P.Malviya
The central legal point established in the judgment is the application of IPC Section 376 in convicting the accused for the offense of rape against a minor girl.
Headnote:
RAPE - CRIMINAL LAW - IPC 376 - The court discussed and referenced the Indian Penal Code (IPC) Section 376, which deals with the offense of rape. The judgment highlighted the medical examination findings, witness testimonies, and the prompt filing of the FIR as key elements influencing the court's decision.
Fact of the Case:
The case involved the rape of a 9-year-old girl by the accused, who was convicted and sentenced to 10 years imprisonment and a fine.
Finding of the Court:
The court found the accused guilty of raping the minor girl based on medical evidence, witness testimonies, and the prompt filing of the FIR.
Issues: The primary issue was whether the accused was the perpetrator of the rape, which the court addressed through the examination of evidence and witness statements.
Ratio Decidendi: The court relied on the victim's statement, medical evidence, and witness testimonies to establish the guilt of the accused beyond reasonable doubt.
Final Decision: The appeal was dismissed, and the accused's sentence of 10 years imprisonment was upheld.
( 1 ) THIS appeal arises out of judgment and order dated 24-8-96 passed by Sri K. A. Lojha, Sessions Judge, Bhandohi in S. T. No. 31 of 1993, State v. Nanku Sharma, u/s. 376, IPC, P. O. Byanpur, Distt. Bhandohi. By this judgment and order, the learned Sessions Judge has convicted the accused on a charge u/s. 376 and ordered him to undergo 10 years R. I. and to pay a fine of Rs. 1,000. 00. On failure to pay the fine within 30 days from the order, he will have to undergo further three months S. I.
( 2 ) THE prosecution case arises out of an FIR lodged by Bans Narain Sharma, dated 9-4-1993. He has alleged that his brother is Jagganath, whose daughter Km. Usha Devi, aged about 9 years, is the prosecutrix in this case. She had gone around 8 a. m. to pick up Mhya flowers, when the accused Nanku Sharma, who has a house adjacent to that place, persuaded her by offering sweets and thus took her inside his house and committed rape upon her. The child raised an alarm, hearing which, Vijai Nath Sharma, Prem Nath Sharma, her mother Kalawati and others arrived and saw the accused committing rape upon the child. Due to arrival of these people, the accused escaped.
( 3 ) ON the basis of the written FIR, a chik FIR was prepared at the police station on the same date at 9-40 a. m. This distance of the police station is only 2 Kms. from the spot.
( 4 ) LADY Dr. Ranjana, P. W. 6 medically examined Km. Usha Devi on the same day i. e. 9-4-93 at 11-30 a. m. and has given the following findings :-M. I. (1) There is a Black mole 1 1/2 " away and 1" above the right side of the 7th cervical vertebra and 2 1/2" lower to the right ear lobule. (2) A small black mole on abdomen left side 1 1/2 " below and 1" lateral to the epigastric region and three inches (medial) and lower to left breast. (3) A black contused irregular birth mark present on 1/2" lateral to right eye brow. Ht.-3- 10 1/2 three feet and ten and half inches. Wt.- 20kg. On Examination and investigation, patient is referred to Gynaecologist, I. M. H. Hospital, Varanasi. Secondary sex Character-Axillary hair not present. Pubic hair - Few Pubic hairs are present (started developing ). Breast - Not developed. Normal colour pink. Opinion :- The above mentioned injury is referred to Gynaecologist, I. M. H. Hospital, Varanasi for expert opinion, investigation and (further examination as patient not allowing for internal examination due to pain) and for treatment. Copy to - Superintendent I. M. H. , Varanasi, for age, Refd. to S. S. P. G. Hospital, Varanasi through C. M. O. subject to swab examination. Due to pain in her private parts, her thorough physical examination was not possible. Therefore, she referred the matter to the Distt. Hospital, S. P. G. Varanasi. There also, she was feeling pain at the time of her examination by lady Dr. K. Malaviya, P. W. 2 and she has prepared the following report (Exhibit Ka 4) :-M. I. (1) Brown light pigmented birth mark on Rt. temporal, 2 cm approximate irregular lateral to eye. On vaginal examination under G. A. done by me on 10-4-93 at 11-40 a. m. :- Hymen torn. No vaginal septum present. Majora, minora clitoris, urethra all healthy. Nick superficial tear on vagina. For oozing fresh blood Anal opening and perineum intact. Pubic hairs not developed. For age, X ray joint ordered. Result :- She is a case of Rape. (2) Age-X ray report waited. She was subjected to radiologica1 examination also. The total result is that she was about 9 years old girl when the offence was committed.
( 5 ) AFTER usual investigation, police submitted the charge sheet
( 6 ) THE prosecution examined P. W. 1 Bans Narain, the complainant. He has narrated the entire story as contained in the FIR. P. W. 3 is Km. Usha Devi is the victim herself. She has narrated that while picking flowers, she was induced by the accused and taken to his house, where he committed rape by inserting his penis inside her vagina. She cried. Thereafter, the witnesses arrived, including her mothe
