SANTOSH Vs. STATE OF U P

JUDGEMENT

(1.) UNDER challenge in the instant criminal appeal is the judgment and order dated 15.10.2004 passed by learned Additional Sessions Judge/ Fast Track Court -2, District Unnao in Sessions Trial No.378 of 2001 arising out of Case Crime No.63 of 2001, whereby the appellant -Santosh was convicted for the offence under Section 376 IPC and was sentenced to undergo rigorous imprisonment for a period of seven years and also with fine of Rs.5000/ - with default stipulation of one year's additional imprisonment.

(2.) THE facts necessary for the disposal of the present appeal are that on 08.03.2001 at 12.00 noon, the minor daughter of the complainant Kallu had gone to take fodder (Hariyali) from the fields. Appellant Santosh who had also gone towards the field, caught hold of the hands of the victim and forcibly took her to the grove and after gagging her mouth with cloth committed rape with her. Victim anyhow removed the cloth from her mouth and raised alarm then Jata Shanker and Ram Jeewan reached there and seeing them, the appellant ran away. When the complainant went to make complaint of this incident to the family of the appellant then the complainant and his brother Ram Chander were abused by them and they were also extended threats for not lodging FIR of this incident. The complainant alongwith the victim and with his wife Jayanti went to the police station and lodged the FIR of this case at 15:30 hours. As per the chik report the distance from the place of occurrence to the police station was 6 kilometers. The victim was referred for medical examination and her medical examination was conducted on 09.03.2001 at about 11.05 a.m. As per her medical examination report (Exhibit Ka -2) no mark of any injury on external part of the body was found and her weight was 30 kgs. height was 145 cms., teeth were 13/14 auxiliary and pubic hairs were found on her private parts and her breasts were developed. On her internal examination no mark of injury on the internal parts of the body was found and no bleeding was present. No injury was found on her private part and hymen was old torn. Vagina admitted two fingers easily. Vaginal smear was taken and sent for pathological test and the victim was referred for X -ray. Because of the transfer of the Dr. Anjali Pant supplementary medical report could not be prepared by her. However, in her evidence in Court she has stated that the age of the victim was more than 16 years and less than 18 years. After completing the investigation the police submitted charge -sheet.

(3.) THE case of the appellant was that he has been falsely implicated in this case because the mother of the victim was raped by two police constables prior to this incident and the complainant was pressurizing the present appellant to become a witness in the said case. When the present appellant refused to become a witness then he has been falsely implicated in the instant case.