PRADEEP BIND Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Sri Indrajeet Kumar Shukla, learned counsel for the convictappellant, learned A.G.A. appearing for the State and perused the material placed on record.

(2.) This criminal appeal has been filed against the judgment and order dtd. 4/6/2018, passed by learned Additional Sessions Judge, Court No.1, Ghazipur, in Sessions Trial No. 31 of 2016, State Vs. Pradeep Bind, arising out of Case Crime No. 2058 of 2015, under Sec. 376-A IPC and Sec. 3/5 of POCSO Act, Police Station Kotwali, District Ghazipur, whereby the appellant was convicted and sentenced under Sec. 376-A I.P.C. for seven year rigorous imprisonment, with fine of Rs.10,000.00, in default thereof he has to undergo six months additional rigorous imprisonment. The appellant has been acquitted of charge under Sec. 3/5 of POCSO Act, as being extended the benefit of doubt.

(3.) The brief facts of the case for the purpose of present appeal is that the first informant Smt. Jagrani, wife of Sri Narayan Bindh, resident of Mohalla Kapoorpur, Police Station Kotwali, District Ghazipur, lodged an FIR with police station concerned on 20/11/2015 at about 16:00 hours, on the basis of written report stating therein that her daughter, the prosecutrix used to visit her relative Jairam at Mahmudpur, where accused who was also frequenting as he is relative of Jairam. Pradeep used to sell 'Toddy' in Tadishop stalled by Jairam where he met prosecutrix 6 years ago and they developed intimacy. He would say that he would solemnize marriage with prosecutrix and his assurance was relied upon by prosecutrix as well as by her parents. He would also visit the home of the informant and used to make relations with prosecutrix on assurance of marriage. After some time, he got a job in CISF and even then he would assure prosecutrix to marry her but after some time he refused to marry her on pretext that eh would not solemnize marriage against wishes of her parents. The medico legal examination of the prosecutrix was conducted on 21/11/2015 at Government Hospital, Ghazipur, in which Doctor opined that there are no signs/suggestion of recent vaginal intercourse, yet there is evidence/suggestion of old genital assault. No physical injury is found. In pathological examination of vaginal smear of victim, no live or dead spermatozoa is detected. The radiological age of the victim was found by Doctor as 18 years as epiphysis around the elbow and writ joint were found to be fused in her X-ray report. Old healed hymen tear at 6 O'clock position was found in her internal examination. The prosecutrix supported the version set out in FIR lodged at the instance of her mother in her statement recorded under Ss. 161 as well as 164 Cr.P.C. She in her statement recorded under Sec. 164 Cr.P.C. dtd. 2/12/2015 stated that she was aged around 18 years. She had gone to the place of her maternal uncle where the brother-in-law (saala) of her maternal uncle was also residing. He kept her in good humor and established physical relations with her for around six years on assurance of marriage and on his advice, she kept mum to this and went back to her home. He would visit her parental home and would make physical relations with her surreptitiously. She became pregnant two years before and he gave her some medicine, which resulted in miscarriage. When her mother caught both of them, he stated to marry her but when he got job, he refused to marry her. He also expressed his refusal before Panchayat and subsequently he began to demand Rs.5.00 lacs as dowry for marriage. Police submitted the charge- sheet against appellant after completing the investigation, with prayer to prosecute him for charge under Sec. 376-A IPC and Sec. 3/5 of POCSO Act. The accused was enlarged on bail by orders of this Court during trial. After filing of charge-sheet, the case was committed to court of Sessions, Ghazipur. The charge-sheet was filed in the court of Special Judge, POCSO Act. At the stage of prosecution evidence, PW-1 Smt. Jagrani Devi, the mother of the prosecutrix, PW-2 prosecutrix, PW-3 Praveen Kumar, PW-4 Constable Muharrir Rajkumar, PW-5 Doctor Chandra Sinha, PW-6 Sri Narayan Pandey- father of the prosecutrix, PW7 Lallan Singh Yadav, were examined in support of the prosecution case.