PRATAP Vs. STATE OF U P

JUDGEMENT

(1.) CHALLENGE in the instant criminal appeal is the judgment and order dated 03.12.2006 passed by Additional Sessions Judge/Fast Track Court No.7, Lucknow in Sessions Trial No. 819 of 2007, arising out of Case Crime No. 203 of 2007, Police Station Sarojani Nagar, District Lucknow whereby the appellant was tried for the offence under Sections 323, 376, 506 IPC and was convicted for the offence under Section 376 and 506 IPC. For the offence under Section 376 IPC, the appellant was sentenced to undergo rigorous imprisonment for a period of seven years and also with file of Rs.5000/ - with default stipulation of six months' additional imprisonment. For the offence under Section 506 IPC, he was sentenced to undergo rigorous imprisonment for a period of three years and also with fine of Rs.1000/ - with default stipulation of one month's additional imprisonment. Both the sentences were directed to run concurrently. However, the appellant was acquitted of the charge under Section 323 IPC.

(2.) IN brief, the case of the prosecution was that on 6.6.2007 the victim, aged about 11 years, had gone to attend the call of nature at about 8.00 PM. The appellant reached there, caught hold of her and after showing country made pistol asked her to accompany him and threatened her with dire consequences in case she raised any alarm. He brought her below the tree of Mahua and committed rape with her thrice during the entire night and she was left by the appellant at about 4.00 AM in the morning extending threats of dire consequences to the family members of the victim in case she told this incident to anyone.

(3.) AS per the prosecution version, the victim along with her mother went to lodge the first information report but her FIR was not lodged. Thereafter on 08.06.2007, complainant gave an application to the Senior Superintendent of Police, Lucknow. On that application, the SSP, Lucknow, directed Mahila Thana to register the case. In compliance thereof, the case was registered at Mahila Thana on 09.06.2007 at 11.00 AM at case crime no. Nil of 2007 and subsequently, it was transferred to the concerned police station Sarojani Nagar, Lucknow, where it was registered at Case Crime No.203 of 2007. The victim was referred for her medical examination which took place on 08.06.2007 at 8.00 PM at Veerangana Avanti Bai Mahila Chikitsalaya by PW -3 Dr. Pushpalata Agarwal. In her medical examination, no mark of injury was present all over the body. She was girl of average built, height was 58 inches, weight was 79 pounds, teeth were 14/14 and secondary sex characters were not well developed. On the examination of her private parts, no mark of injury was found. Labia Majora and Labia Minora were developed. Hymen was intact. Vaginal smear slides were prepared and the victim was referred for X -ray examination for determination of her age. On the basis of the aforesaid tests, no definite opinion regarding rape could be given. However, her age was reported to be about 16 years. After concluding the investigation, the charge sheet was filed in this case.