RAJU LONIYA Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the appellant, learned A.G.A. for the State and perused the lower court record.

(2.) UNDER challenge in this appeal is the judgment and order dated 22.5.2008 passed by the learned Additional Sessions Judge/Fast Track Court -V, Faizabad in Sessions Trial No. 15 of 2008 whereby appellant Raju Loniya was convicted for the offence under Section 366 I.P.C. and was sentenced to undergo rigorous imprisonment for a period of seven years and also with fine of Rs. 1,000/ - with default stipulation of six months additional imprisonment. He was further convicted for the offence under Section 376 I.P.C. and was sentenced to undergo rigorous imprisonment for a period of seven years and also with fine of Rs. 1,000/ - with default stipulation of six months rigorous imprisonment. However, he was acquitted of the charge punishable under Section 363 I.P.C. as the victim was held to be 18 years of age.

(3.) IN brief, the case of the prosecution as narrated in the F.I.R. was that daughter of the complainant (hereinafter referred to as the victim) was enticed away by the present appellant. At that time, the victim was married and major. Initially F.I.R. of this case was registered as N.C.R. under Section 494 I.P.C. Subsequently high school mark -sheet of the victim was produced before the police wherein her date of birth was mentioned as 15.11.1991 and in view of the aforementioned date of birth, she was minor, therefore, the case was converted under Sections 363 and 366 I.P.C. During investigation, the victim was recovered on 22.10.2007. She was referred for medical examination and after concluding the investigation, charge sheet was filed against the present appellant. As per the medical examination report, there was no mark of injury on external part of the body. Vagina was loose, admitting two fingers easily. The victim was reported to be habitual to sexual intercourse. Vaginal smear was taken and sent to pathological test and she was also referred for x -ray. On the basis of these tests and x -ray report, no definite opinion regarding rape was given and age of the victim was reported to be about 20 years.