SHAMI ULLAH Vs. STATE OF UP

JUDGEMENT

(1.) <DJG>Vinod Prasad, J.</DJG> Challenge in this appeal by the appellant accused Shamiullah is to the judgement 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 under go 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 Shamiullah, under sections 376/ 506 IPC and section 3(1) (12) 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 Jagannathpur, 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 house 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 her mouth 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.) Banwari Lal, Circle Officer, Sirathu, district Kaushambi, PW 6, commenced the investigation of the crime, copied the chik FIR and GD entry, interrogated the victim and the informant and recorded their statements. Arriving at the spot and conducting spot inspection C.O. PW6, prepared the site plan Ext. Ka 8 and thereafter penned down the statements of Smt. Kalpati, victim's mother, and those of Indra pal and Rakesh, two witnesses of attir seizure memo. PW6 , thereafter copied injury report and x-ray report of the victim, and then copied 164 Cr.P.C. statement of the victim in the case diary. Investigating Officer had also sent for serologist examination the under wear of the victim, which report by the serologist is Ext. Ka 10. Prima facie offences being disclosed against the appellant accused, that the C.O. Investigating Officer, charge sheeted the appellant vide his report/ charge sheet, Ext. Ka 9 dated 16.1.2002. Medical examination of the victim was done at district Hospital Allahabad, by Dr. Usha Singh, PW5, on 25.12.2004 at 11.40 a.m, vide Ext. Ka 6, who was brought to her by Const. Pyare Lal. In general examination doctor found her teeth 7+7 / 7+7, weight 38 kg and height 5 , breasts developed, pubic and axillary hair scanty, and no mark of injury over any part of her body.