SAMIULLAH Vs. STATE OF U.P.

JUDGEMENT

(1.) CHALLENGE in this appeal by the appellant accused Shamiullah is to the judgment and order of his convic­tions under sections 376/506 IPC and im­posed sentences of 7 years RI with fine of Rs. 5000/- and in default of payment of fine to undergo six months further imprisonment on the first score, and one year RI with fine of Rs. two thousand and in default of pay­ment of fine to under go further two months imprisonment on the second count, with additional direction that both the sentences shall run concurrently, recorded by Addi­tional Session's Judge, Fast Track Court No. 2, district Kaushambi in S.T. No. 279 of 2003, State versus Shami Ullah, under sections 376/506 IPC and section 3(1) (xii) SC/ST Act, P.S. Mohammadpur Paisa, District Kaushambi.

(2.) BACKGROUND facts of the appeal are that victim, PW2, aged about 14 years, is the daughter of informant Mohan agricul­turist, PW1, resident of village Jagannath-pur, PS Mohammadpur Paisa, district Kaushambi with the appellant as her co villager. On the unfortunate day 23.12.2001 at 5 p.m., when the victim PW2, was re­turning to her housp from the guava grove of Mian Baba, and reached near the house of the appellant, she was engaged in a con­versation by the appellant who then took her to his fodder room, where he outraged her modesty by gagging he nouth from a piece of cloth and intimidating her with life, when she attempted to raise alarm. On her coming back to her house, victim di­vulged the faux pas to her mother, and later on to the informant father Mohan, PW1, on his return after irrigating his field. Infor­mant PW1 got a written report, Ext. Ka 1, scribed by Bachchi lal and then lodged it at police station Mohammadpur Paisa, follow­ing day of the incident on 24.12.2001 at 4.15 p.m. measuring a distance of 6 km from his village. Ram Bahadur Yadav, HCP, PW 4, registered the crime, prepared the chik FIR, Ext. Ka 4 and the relevant GD entry Ext. Ka 5. An attir (underwear) of the victim was also seized by him and it's recovery memo Ext. Ka 2 was also prepared.

(3.) ON internal examination doctor noted no mark of injury or blood stains on the private part of the victim, whose vagi­nal smear slid was prepared and sent for pathological examination to MLN Hospital for noting presence of spermatozoa. Inser­tion of two fingers was made easy. Uterus was of normal size with no pain and ten­derness present in it. Mensturation had not occurred. Doctor also advised for X-ray of wrist, elbow and knee joints and reserved her final opinion to be given after those test reports. Pathologist report dated 27.12.2001 indicated that no spermatozoa was de­tected in the vaginal smear, of the victim where as Radiologist report dated 26.12.2001(Ext. Ka 3) indicated that Radius and Ulna Bones of the victim were not united (fused), the epiphysis of medial epi-condyle head of Radius and old cranor process of ulna bones have not completely united with their -respective shafts. The epiphysis of lower end of femer and upper end of Tibia and Fibula bones have not completely united with their respective shafts. According to the supplementary report Ext. Ka 7, by the doctor PW 5, based on Radiologists and Pathologist reports, victim was found to be a minor aged about 14 years, however no definite opinion about rape could be given by her.