Hon’ble B.S.Verma, J. (Oral)}

This appeal preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 22nd January 2001, passed by learned Additional Sessions Judge/Special Judge Anti Corruption, U.P.(East) Dehradun, in Sessions Trial No. 26 of 2000 State Vs. Bhupendra Kumar Sharma, whereby the accused-appellant Bhupendra Kumar Sharma has been convicted under Section 376 and 506 of the Indian Penal Code (hereinafter referred to as I.P.C.) and has been sentenced to undergo ten years’ rigorous imprisonment and a fine of Rs. 2,000/- for the offence under Section 376(1) of the I.P.C. and to undergo six months’ R.I. for the offence under Section 506 of the I.P.C. In default of payment of fine, the accused-appellant has been ordered to further undergo six months’ R.I. However, both the sentences were ordered to run concurrently.

2. Heard learned Amicus Curiae for the appellants and learned Additional G.A. for the State.

3. Prosecution story as emerges from the record, in brief, is that the accused-appellant Bhupendra Kumar Sharma was living in the house of the complainant Om Prakash Agarwal lodged a written report with the police out post on 23-10-1999, alleging therein that his daughter Aruna Tyagi and her minor daughter, aged about 12,1/2 years used to live with his own family and on that day in the night at about 3-4 a.m., the prosecutrix (Priyanka) had gone to the bath-room to pass urine. The accused who was living as paying guest in the first floor suddenly came out and induced the prosecutrix to his room and forcibly committed rape with her and thereafter, the accused threatened her to kill in case she disclosed the incident to anybody.

4. In the morning, the prosecutrix in a shy condition disclosed the entire incident of rape having been committed by the accused to her mother and then the complainant got the information of committing rape by accused. Thereafter, the accused, who had confined himself in the room by bolting the door from inside in order to escape from that place was apprehended with the help Alam Khan and other persons by using necessary force. The complainant handed over the written report to the Incharge of Police Outpost Bindal (Dehradun). On the basis of the written report (Ext Ka-1), a case was registered against the accused at Case Crime No. 51/99 under Section 376(II)/506 I.P.C. in the general diary and Check FIR (Ex.Ka-3) was prepared.

5. The investigation was taken up by S.I. Y.K.Sharma, Incharge Police Out-post Bindal, P.S.Cantt. The prosecutrix was also brought to the police outpost, wherefrom she was sent along with lady constable Neelam Singh for medical examination to the Women Hospital, Doon Hospital, Dehradun, where the proxsecutrix was medically examined by Dr. Mamta Sachan, Medical Officer at 2 p.m. on 23-10-1999.

6. The doctor found breast of the prosecutrix developed and axillary and pubic hairs present. On local examination, no marks of injury were found. The hymen was old torn and vagina admitted one finger easily. The vaginal smear was taken for clinical examination and the girl was sent for X-ray.

7. X-ray was conducted for ascertaining the age of the girl and on the basis of X-ray report, the Medical Officer prepared Final Report on 28.10.1999, the extract whereof reads as under:-

“Epiphysis lower and radius ulna not fused with respective shaft.

Epiphysis around knee joint ankle joint not fused with respective shaft.

Epiphysis around elbow joint fused except medial epicondyle which is partially fused.

All carpel bones present.”

The doctor has concluded that the age of the girl is between twelve and fourteen years, but has observed that no opinion about rape could be given.

8. The prosecutrix was also produced before the Magistrate for her statement under Section 164 Cr.P.C. on 25-10-1999. Additional Chief Judicial Magistrate IV, Dehradun recorded the statement under Section 164 of the Cr.P.C. (E