(1.) Heard Sri Anil K. Tripathi, learned counsel for the appellant, Sri Manoj Singh, learned A.G.A. for the State and perused the record.
(2.) The instant criminal appeal under Sec. 374(2) Cr.P.C. is filed against the impugned judgment and order dtd. 5/8/2005 passed by Additional District and Sessions Judge, Court No.4, Hardoi in Sessions Trial No. 637 of 2001 (State vs. Sanjay Ram), arising out of Case Crime No. 604 of 2000, under Ss. 363, 366, 376 I.P.C., Police Station- Kotwali Sahar, District- Hardoi, whereby the accused-appellant was convicted and sentenced to undergo RI of 03 years and fine of Rs.1,000.00, in default six months additional rigorous imprisonment under Sec. 363 I.P.C., to undergo RI of 07 years and fine of Rs.2,000.00, in default six months additional rigorous imprisonment under Sec. 366 I.P.C. and to undergo RI of 10 years and fine of Rs.3,000.00, in default one year additional rigorous imprisonment under Sec. 376 I.P.C. All the sentences were directed to run concurrently.
(3.) In brief, the prosecution case is that the father of the victim X lodged the first information report on 26/11/2000 at 15:40 hours on the basis of written Tahrir against the appellant and two others alleging therein that on 22/11/2000 at about 06:30 a.m. his wife and daughter, aged about 15 years, had gone to attend the call of nature and while they were returning to home, the accused Santosh, resident of his village, Sanjay and Tapan Sadhu started talking with his daughter on the way and his wife came to house but his daughter did not come to the house. He searched his daughter but did not find her. It is further alleged that two villagers Mohan Lal Gupta and Phool Chand had seen his daughter going towards Hardoi Railway Station along with accused Tapan, Sanjay and Santosh. On the basis of written Tahrir (Ext.Ka.1), PW-5 HCP Parideen Rawat scribed the Chik report (Ext.Ka.3) on 26/11/2000 at 15:40 hours and registered the Case Crime No. 604 of 2000, under Ss. 363, 366 I.P.C. at Police Station Kotwali City, District Hardoi by making necessary entry in GD Report No. 28 at 15:40 hours on 26/11/2000 (Ext.Ka.4). After fourteen days of the occurrence, i.e., on 6/12/2000, the victim X was recovered from the Railway Station Hardoi along with accused-appellant Sanjay Ram who was arrested and the victim X was sent for medical examination on the same day along with lady Constable 215 Abha Jaisawal. The victim X was medically examined on 06/12/2000 at 12:30 hours by PW-6 Dr. Sadhana Pathak. She found that the breasts of the victim X was developed. Axillary and pubic hairs were found present. No marks of external injury was found. On internal examination, hymen was found old torn and healed up. Vagina admits two fingers easily; no recent injury found on private part. Vaginal smear was taken and sent for pathological examination for presence of spermatozoa. X-ray of right elbow joint, right wrist joint and right knee joint for confirmation of age was advised. PW-6 Dr. Sadhana Pathak prepared the medical report (Ext.Ka.5) of the victim in his own handwriting at the time of medical examination. In the vaginal smear report, no spermatozoon was found. X-ray of the victim X was conducted under the supervision of PW-3 Dr. Ramesh Chandra Agrawal. He prepared the X-ray report dtd. 6/12/2000 ( Ext.Ka.2) on the basis of X-ray plate no. 2532R (Material-Exhibit-1) in which he found epiphyses around the elbow joint and knee joint are fused, except upper end of fibula which is almost fused. Epiphyses at lower end of radius and ulna were found in process of fusion. PW-6 Dr. Sadhana Pathak prepared the supplementary medical report (Ext.Ka.6) of the victim X on 8/12/2000 on the basis of pathological report and X-ray report. She opined that the victim was aged about 17 years and she was habitual of sexual intercourse. No opinion about rape was given.