Per: Hon’ble Alok Singh, J.

1. This is a jail appeal preferred by the accused appellant assailing the judgment and order dated 22.01.2008 passed by 2nd Additional Sessions Judge, Dehradun, in Sessions Trial No. 154 of 2006 whereby appellant was convicted for an offence punishable under Section 376 IPC and sentenced to undergo life imprisonment and to pay fine of Rs. 20,000/-, failing which to undergo six months’ additional imprisonment for the offence punishable under Section 376 IPC.

2. Brief facts of the present case, inter alia, are that PW2 Aarti (prosecutrix) is the real daughter of accused appellant. PW2 prosecutrix lodged an FIR against her own father on 06.06.2006 with police station Patel Nagar, Dehradun stating therein that appellant has five children including the prosecutrix; in the month of February, 2005 appellant came in her bed and committed rape upon her; however, she did not disclose same to her mother out of fear and kept on bearing the misdeeds of her father continuously; on 09.05.2006, when her mother went out to purchase milk from market, appellant came and caught her hand; she immediately rushed outside the house and narrated the entire incident to her mother; she had 7 months’ pregnancy in her womb from her father; appellant took her to Doon Hospital on 05.06.2006 for treatment wherefrom she was discharged only today and she has come to lodge this report. Report was countersigned by PW2 as well as by her mother PW1.

3. Having investigated the matter, police filed a charge-sheet against the appellant for an offence punishable under Section 376 IPC. From the side of prosecution, PW1 mother of prosecutrix, PW2 prosecutrix, PW3 Dr. Deepali Foniya, PW4 Dr. Guman Singh, PW5 Constable Devendra Singh, PW6 SI K.S. Garbiyal, PW7 Ganesh Prasad Bauthiyal were examined. Appellant got himself examined as defence witness.

4. Learned trial court, having perused the entire material available on record, was pleased to pass judgment and order, which is under challenged in the instant appeal. Appellant has preferred this appeal from Jail through Jailor, District Jail, Dehradun.

5. We have heard Mr. Dinesh Gahatori, Amicus Curiae for the appellant as well as Mr. H.O. Bhakuni, Brief Holder, for the State and have carefully perused the record.

6. Prosecutrix, who was less than 18 years of age in the month of February, 2005, has stated, on oath, that on the fateful night, her mother underwent through the operation of vasectomy and appellant came to her bed and committed rape upon her. She has further stated that on several occasions, appellant had committed rape upon her, however, she could not make any complaint to her mother due to fear, as appellant had threatened her, if she would disclose this to anybody, she would be killed. She has further stated that on 09.05.2006, when her mother went to purchase the milk from the market, appellant came and caught her hand with ill intention, however, she managed to escape, thereafter, she narrated the entire incident to her mother. Thereafter, serious altercation took place between her mother and father, on the issue. Appellant took her daughter to Doon Hospital on 05.06.2006 wherein she was remained admitted. Doctors had diagnosed 7 months’ pregnancy and she disclosed to doctors that she had pregnancy from her father i.e. appellant. PW1 mother of prosecutrix, has also supported the prosecution story.

7. Undisputedly, prosecturix had delivered a dead baby in the month of August, 2006. PW3 Dr. Deepali Foniya, who had examined the prosecutrix on 09.06.2006, has stated that she had diagnosed 25 – 26 weeks’ pregnancy. She has further stated DNA test can be conducted on alive or dead infant. PW4 Dr. Guman Singh has stated, on oath, that as per ossification test, prosecutrix was aged about 17 years in the year 2006.

8. Mr. Dinesh Gahatori, Amicus Curiae, has vehemently argued that appellant moved an application before the learned ACJM on 19.07.2006 to the effect that DNA