RAJEEV KUMAR KORI Vs. STATE OF U P

JUDGEMENT

(1.) UNDER challenge in the instant criminal appeal is the judgment and order dated 25.11.2011 passed by learned Additional Sessions Judge Court No.5, District Sultanpur, in Sessions Trial No.164 of 2009, (State Vs. Rajeev Kumar Kori), relating to Case Crime No.1431 of 2008, Police Station Amethi, District Sultanpur, whereby the appellant -Rajeev Kumar Kori was convicted for the offences under Sections 363, 366 & 376 IPC. For the offence under Section 363 IPC the appellant was sentenced to undergo rigorous imprisonment for a period of five years' with fine of Rs.6000/ -, with default stipulation of six months rigorous imprisonment, for the offence under Section 366 IPC he was sentenced to undergo rigorous imprisonment for a period of seven years and fine of Rs.12,000/ - with default stipulation of 1 year rigorous imprisonment and lastly for the offence under Section 376 IPC he was sentenced to undergo rigorous imprisonment for a period of ten years and also with fine of Rs.20,000/ -, with default stipulation of 20 months' rigorous imprisonment.

(2.) BRIEF facts necessary for the disposal of instant appeal are that the victim who happens to be the minor daughter of the complainant Ram Shankar had gone to ease herself in the morning at 4.30 a.m. on 17.12.2008 wherefrom she was enticed away by the appellant Rajeev Kumar Kori. The victim had taken her jewellery and Rs.2000/ - cash with her. The complainant made efforts to trace out her but when his efforts failed, he lodged an FIR of this case on 21.12.2008 at 10.30 a.m. During investigation, the victim was recovered on 16.01.2009 and she was referred for her medical examination. Her medical examination took place on 17.01.2009 at 2.30 p.m. in District Hospital, Sultanpur. In her medical examination breasts, pubic and axillary hairs were well developed and these hairs were black in colour. No injury on any part of her body was present. In internal examination no injury over private parts was found. Hymen was old torn and healed and vagina admitted two fingers easily. Vaginal smear slides were prepared for pathological test and the victim was referred for her X -ray for determination of her age. On the basis of the aforesaid tests, the age of the victim was reported to be about 17 years and no definite opinion regarding rape could be given. However it was reported that she seems to be habitual to sexual intercourse. During investigation, the Investigating Officer, inspected the place of occurrence and prepared a site plan on 21.12.2008 i.e. prior to the recovery of the victim and after recovery of the victim another site plan was prepared on 31.01.2009. After completing the investigation, charge -sheet was filed against the appellant.

(3.) THE case of the defence was that the courtyard of the appellant was adjacent to the house of the complainant and there was some dispute regarding the said courtyard due to which he has been falsely implicated in this case. The case of the defence which emerges from the suggestion given to the witnesses was that she was aged 18 years and she had gone with the appellant out of her own free will and whatever has happened between them, was a consensual act.